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August 04, 2018 08:35 AM UTC

"Right To Frack Your Backyard"--Initiative 108 Lurches Forward

  • by: Colorado Pols

Marianne Goodland of the Colorado Springs Gazette reports:

Proponents of a ballot measure they claim will strengthen private property rights turned in a record 209,000 petition signatures Friday to the secretary of state.

Initiative 108 is a constitutional proposal for the November ballot that its chief sponsor, Colorado Farm Bureau, says will allow private property owners to take state or local governments to court when their property is devalued. The ballot measure doesn’t identify the kind of private property that could be taken, but examples include mineral, oil and gas, or water rights…

Initiative 108 becomes the second constitutional ballot measure under more stringent signature requirements approved by voters in 2016 under Amendment 71, aka “Raise the Bar,” which CFB supported.

The effects of this initiative would be potentially devastating to local governments responsible for just about any kind of land-use policy. Although proponents cite anecdotal examples of various controversial takings that property rights holders could sue over, the overwhelming beneficiaries of this initiative would be oil and gas rights holders in areas where people live and work. It would turn Colorado’s “split estate” system of separate surface and mineral rights into a cash cow for mineral rights holders at the direct expense of everyone else. Acting to protect residents from drilling in residential areas could mean bankruptcy for your town.

Don’t let the “record number of signatures” fool you into thinking this ballot measure enjoys authentic popular support. Goodland reported last week that five different pay-per-signature petition gathering firms were working on this ballot initiative. It’s true that since the passage of Amendment 71 in 2016, constitutional ballot measures have become harder to qualify for the ballot–but not impossible, and the scale of this effort demonstrates that constitutional measures are still very much within reach of those who have the means. Like the oil and gas industry, who not coincidentally has the ways and means to commit dirty tricks against initiatives they don’t like.

For most citizens of Colorado, “Raise the Bar” simply raised the bar above their heads.

Here is the result.


26 thoughts on ““Right To Frack Your Backyard”–Initiative 108 Lurches Forward

    1. I think there would be a very lucrative field, Sudy, as to whether a state law can supercede a federal here.  Hopefully we beat both these crappy proposals but otherwise, start your $300 a hour meter running.

      Need a good paralegal?  I'm certified, tanned, rested and ready.

  1. MJ, Duke, Mike: can we at least agree on the principle that two extremist measures do not make a right?  Yes, a 5,000 foot setback as established in 79 (2,500 in each direction) is a taking under the fifth amendment and I think the courts would so uphold.

    That doesn't mean we throw out two centuries of settled law with a one- sided law saying you can bankrupt counties that impose reasonable rules, like the present 500 and 1000 foot setbacks, that actually are justified by public health concerns.

    All we need is a simple rule that Bowman owes me a beer if I ever get back to Wray.


    1. Extremist is a relative term, my friend. I disagree that 2, 500 ft. is such a thing.

      97 is meant to protect.

      108 is meant to punish.

      If you insist that this is about property rights and takings instead of human, plant, and animal health, then you accept that your right to make money supercedes my right to be healthy.

      Sorry, but I can't go there with you. I am not willing to disbelieve what I have seen and heard for years.


      1. My right to make a living, Duke, supercedes your right to put me out of work without a shred of evidence that you're being harmed by my livelihood.  Yes, the courts will find the 2,500 setback a takings under the 5th Amendment.  But that is existing law.  We don'tneed 108, which in all likelihood, is preemped by federal law in any case.

      2. If you insist that this is about property rights and takings instead of human, plant, and animal health, then you accept that your right to make money supercedes my right to be healthy.

        Yeah.  I'd rather not burn the world and everyone in it, but I gotta get what's mine. 

        Just once, I'd like for folks advancing the sanctity of their "property rights" to quantify in lives lost, asthmatics created, or even in other peoples' property value destroyed, how much their dinosaur poop is worth.

        1. Letme guess, Sudy.  You don't own a car, biking to work.  You never fly.  You eat strictly vegan.  You live in a yurt heated only by buffalo dung.  You use only solar electricity.

          So, thus,you're not a hypocrite in trying to destroy other people's livelihoods?

          Because if you drive a car and heat your home with natural gas while trying to destroy the industry that provides those comforts to you, you would be a hypocrite.


    2. Problem is, there actually is a growing amount of scientific evidence that fracking wells cause health problems for those living around them. Check out the study CSU did in 2016 on fracking emissions along the front range. Near the end of the report, you can see the distance that elevated benzene levels travel from wells–approx 3,000 ft, and obviously worse as you get closer. 

      Then there are the diesel generators, the heavy truck traffic, the loud noises at night, and the overall negative effect on air quality of having 20,000+ wells in Weld county alone. We can't forget that people extracting "their minerals" in a way that is a nuisance to neighbors doesn't override their neighbors' right to peaceful, quiet enjoyment of their property.

      I think a lot of the farmers that signed on the dotted line for a fracking well did so without knowing what health effects there might be, or at least, gambling that whatever happens is worth the payday. So many of them didn't buy their land knowing they had value in the minerals, it was only after the technology advanced in the last 10 years that it was even worth anything. Now it's a takings? 

      I totally feel for the people relying on this new income, but what would they have done if the technology didn't give them a windfall? Probably find another job…

  2. The Colorado Independent has a great write up on all the campaign fundraising so far (Dem candidates are in great shape!).  Included is the note that $7.7 million has been spent by O&G for just Initiative 108.

    Rivaling Polis for raising money is a group called Protecting Colorado’s Environment, Economy and Energy Independence, or simply Protecting Colorado. That super PAC, fueled by oil and gas interests, has raised $13.1 million, virtually all of it from oil and gas companies.

    Protecting Colorado has already spent $7.7 million, much of it on signature gathering.

    That group is working against an initiative to increase setbacks of oil and gas development, and for a measure forcing governments to pay property owners if laws or regulations reduce the value of their property.

    1. Wonder what KOA's Farm Bureau voice Chuck Muller would have had to say about it? He and his wife Pat were  family friends, and they were  "old style" Republicans : "Stay out of my private business, and be responsible with my money!"

      Also a talented actor who starred in a couple of one-man shows in Denver.

    2. I thought everyone in farm country had a solar array and a couple of windmills on their fallow acreage these days, Mike. If they don't, they ought to.


      1. It’s pretty complicated (thus my earlier comment). Rules and regs, particularly in rural electric territories, makes developing small wind and solar projects impossible. 

  3. The biggest mistake anyone can make is to frame this as a mineral extraction issue.  From the initiative text:

    Taking property for public use—compensation, how ascertained. Private property shall not be taken, of damaged, OR REDUCED IN FAIR MARKET VALUE BY GOVERNMENT LAW OR REGULATION for public or private use, without just compensation.

    Any government action that might reduce the value of any property is compensable under this change.

    We passed a law to disallow weed shops within a certain distance from schools.  Every property capable of holding a commercial use in that area just experienced a taking and is entitled to compensation.  Same for gun shops, strip clubs, liquor stores.

    The city just approved a change in zoning to allow more apartments on that lot next to our subdivision.  Taking.  Pay me.  Wait, did you just deny me a special use permit?  I could have made more money with that.  Pay me.  Find out a pollutant I've been emitting causes cancer?  Pay me.  Remove the property tax exemption on the six acres of my estate I pay some schlub to put goats on once a year so I can call it "ag land?"  Pay me.  Increase school taxes? Well, that made my house a bit less attractive to buyers.  Pay me.

    1. Actually, the biggest mistake anyone could make with this turdball is to vote for it.

      The 5th amendment we already have is quite enough to parry initiative 97, in the unlikely event it passes.  But we can and will beat both these stinkers.

      The bad news is that we're heading to a mega-million vote no on everything campaign as all these vote no messages merge.  That could crush some good things on the ballot, like tabor reform.

      Collateral damage is still damage, my friends.

    2. So regulation of the grid keeps small producers from accessing energy markets and unable to develop the wind or solar resources on agricultural land (or an aggregation of farms/ranches in a certain geographic area).  Can we be  compensated? Is regulation a stand-alone descriptor in that sentence or is it tied to the word government? Does this apply to regulations enforced by Generation and Transmission entities that are in whole or in part regulated by the PUC? 

      If Pseudo gets to put a drilling rig in his back yard – I want a few wind turbines on my farm!! 

      1. I'll offer to forgo the rig, if that will help.  Or, is that communism 🙁

        Also, if it were a state run electric grid, then quite possibly but federal entities are exempt. For example, Weld’s treatment of solar facilities might be covered. The PUC also, I'm pretty certain, would be.

  4. Opening the realm of innovative law …

    will allow private property owners to take state or local governments to court when their property is devalued. The ballot measure doesn’t identify the kind of private property that could be taken, but examples include mineral, oil and gas, or water rights…

    So, there is a height limit on how I could develop my property … how much will Denver owe me since I can't erect a property-line to property-line 40 story apartment building?

    One of my friends resides in a home in a historic district, limiting what he can do with the exterior of his building. How much more could a house be worth if he could merely change the facade and look like an architectural gem?

    Part of my home's value is the nearness of schools and a public library. If Denver chooses to close the libary or DPS decides the school must be shut, can I go to court and get compensation for that loss?

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