I am the Lead Representative Plaintiff** in a pending Federal Class Action to dismantle the Colorado Oil & Gas Conservation Commission (COGCC). This will be done by legally challenging in Denver Federal District Court, the constitutionality of the 1951 Colorado Oil & Gas Conservation Act, as amended. This 1951 Colorado legislation was created by only an ordinary state statute, the COGCC. From our perspective, until the COGCC is dismantled, and WE THE PEOPLE OF COLORADO formally amend our Colorado Constitution to authorize a “constitutionally constrained” Colorado Oil & Gas Commission, all other efforts are chasing after the wind.
We consider the COGCC to be a Dragon, and the Federal Class Action is the Dragonslayer: Lawsuit would challenge COGCC’s constitutionality.
After reading on August 4, about Governor Hickenlooper and Congressman Polis choosing an 18 member ad hoc committee over ballot initiatives; I decided it was necessary to inform WE THE PEOPLE OF COLORADO, the Plaintiff Class, that your Lead Representative Plaintiffs have been quietly playing Constitutional Chess with the Colorado Governor, the Colorado Oil & Gas Association (COGA), and other fracking stakeholders, as the current Local Control v. State/Industry war continues to unfold in Colorado.
Constitutional Chess is an art form played out as a very competitive game. In Colorado, as in all 50 states in the Union, there are four chess boards at four different levels:
- The top chessboard is the U.S. Constitution.
- The federal statutes board.
- The Colorado (state) Constitution.
- The state statutes chessboard.
The highest law of the land is the U.S. Constitution. The U.S. Constitution is a “grant of power” to our Federal Government from We the People of the United States. The U.S. Constitution enumerates certain inalienable rights that constrains the government and protects We the People. The Supreme Court of the United States (SCOTUS) is the final authority on interpreting the U.S. Constitution. All state constitutions, state statutes, and county and municipal charters and ordinances are inferior to the U.S. Constitution.
The Judiciary is located on the first (federal) and third (state) chessboards, and obtain and maintain their powers from the two Constitutions, and the laws created by the sovereignly elected legislators. To reiterate, the U.S. Constitution is always the Supreme Law of the Land. And, will always dominate all state constitutions, and federal and state laws to the contrary. Under well settled constitutional law principles, a Preemption Doctrine is ingrained in the U.S. Constitution at Article VI. This constitutional language unequivocally and forever establishes the U.S. Constitution as the Supreme Law of the Land. Any state or local law that is repugnant to the U.S. Constitution is without lawful basis and affect, automatically null and void.
From the Preemption Doctrine well settled federal court precedents have also established the Supremacy Clause, as the legal authority for federal laws and statutes to always dominate over any conflicting state laws and statutes. Therefore the real legal power originates from the top chessboard U.S. Constitution. The pecking order goes down to the fourth level of the chessboards. This fourth level and lowest level is the Colorado state statute chessboard, where the COGCC originated and obtained all of its present day legal and political powers.
This fourth level state statutes chessboard gives the COGCC Dragon power to joinder with COGA against Longmont, et al, up to the third level chessboard which includes the Colorado Judiciary and the Colorado state district court system. But remember, the third level chessboard holds the power of the Colorado Constitution over the fourth level of only state statute: “constitutions always trump statutes, always.”
Preemption & Vacate the Field
On the second level are the federal statutes that “PREEMPT,” under the “Supremacy Clause,” all conflicting Colorado statutes regulating the operations of oil & gas drilling, including fracking. However, it is well known that former Haliburton CEO, Vice-President Dick Cheney gutted the Safe Drinking Water Act, Clean Water Act, Clean Air Act, Emergency Planning and Community Right to Know Act, among others. Therefore, the federal government has “vacated the field.” Any regulatory relief to reign in fracking in Colorado, will not come from the federal government. What must be made clear about the legal doctrine of PREEMPTION is the source of the PREEMPTION POWER. The COGCC is sourced from state statutes at the fourth level of the constitutional chessboards, versus WE THE PEOPLE OF COLORADO have inalienable rights sourced from the SUPREME RULER OF THE UNIVERSE and enumerated in the U.S. Constitution. It is preposterous for Governor Hickenlooper, the COGA, and the COGCC to claim that the COGCC, (which has its legal powers from the fourth level), can PREEMPT the Colorado Home Rule Charters which have their legal powers from the Colorado Constitution. Be very cognizant, constitutions always trump statutes, and statutes always trump common law judicial decisions such as VOSS. Because of the recent Judge D.D. Mallard decision in Longmont, I am convinced the only hope for real justice is to make a federal case out of it.
LUNDVALL V. VOSS (GREELEY) 1992
Right now there are five (5) Colorado Home Rule municipalities and county governments in varying degrees of legal controversy with the Governor and the COGA/COGCC union. Those legal battles are being fought in Colorado state courts on the third level chessboard. Lurking on the third level is the 1992 Colorado Supreme Court decision LUNDVALL V. VOSS (GREELEY) that will be used again and again by COGA lawyers as the Controlling Precedent in all cases. As a result, all of these cases will be judged summarily, as Judge D.D. Mallard’s recent LONGMONT decision was in favor of the COGCC/COGA union, based on precedent created unanimously by the 1992 LUNDVALL V. GREELEY Colorado Supreme Court decision.
Those Coloradans who have taken the time to read the federal “WORKING DRAFT” Class Action Complaint know the 1992 LUNDVALL V. GREELEY decision by the Colorado Supreme Court is adamantly challenged by the Plaintiff Class as “errant, constitutionally repugnant and patently ambiguous.”
The Well Played Hand
Constitutional Chess is a lot like poker where you turn over “hole cards” at strategic times during the game. An example is September 2013, when I filed a formal NOTICE OF INTENT TO FILE A FEDERAL CLASS ACTION with the Colorado Attorney General. With that legal filing we turned over an ace of spades by publishing the DRAFT Class Action Complaint, and making it available for public review on the internet:
Dismantling the COGA/COGCC Union
Our citizens Federal Class Action belongs to all of WE THE PEOPLE OF COLORADO and moves above the third level of the Colorado Supreme Court to the first level of the U.S. Constitution to the Supreme Court of the United States, which controls the Federal District Court in Denver. The citizens’ Class Action Complaint pleads to the Federal Court for relief from the unconstitutional COGCC statutes under the U.S. Constitution at the 9th and 14th Amendments. And here, the controlling precedent is MARBURY V. MADISON 1803, and not LUNDVALL V. VOSS (GREELEY) 1992. Here, in federal court WE THE PEOPLE OF COLORADO win!
WE THE PEOPLE OF COLORADO need to fully understand this battle isn’t about Fracking. It’s about defending our existing inalienable and constitutional rights against an out-of-control and unconstitutional Governor, Legislature, and Judiciary. Then, and only then, will fracking anywhere and anytime be halted in Colorado. To halt fracking in Colorado, the unconstitutional COGCC Dragon must first be slain, and the battleground of our choosing is in Federal Court under the protection of the U.S. Constitution @ Article III, § 2, & Article IV, § 4.
The pending Federal Class Action cannot be time barred, as it is unconstitutional for the Congress to enact a federal statute-of-limitation that would time limit WE THE PEOPLE from defending our inalienable and constitutional rights in open federal court. We will take the time necessary to be fully prepared to accomplish dismantling the COGA/COGCC union completely.
A Constitutional Chess “Hole Card”
I have been saving a “hole card” for the final “Class Action Complaint”. It was my intent to save this “ace” until the initial filing of the Class Action Complaint in Denver Federal District Court. Within the “Polished Complaint” we will add a new section under the headings “Constitutional Challenges,” “facial,” and “as-applied.” However, because of the recent Hickenlooper and Polis betrayal to WE THE PEOPLE OF COLORADO, I decided to turn over this ace now to energize public discussion moving into the November elections.
WE THE PEOPLE OF COLORADO, THE PLAINTIFF CLASS, THROUGH THE LEAD REPRESENTATIVE PLAINTIFFS, HEREBY DECLARE:
“The COGCC Statutes which pertain to Pooling under C.F.R. 34-60-116 and COGCC Rule 530 are unconstitutional under the Supreme Law of the Land and strictly prohibited by the U.S. Constitution at the Contracts Clause @ Article I, § 10, cl. 1. ‘No State shall make any Law impairing the Obligation of Contracts’.
“Thousands of Coloradans have been forced against their will by the unconstitutional COGCC statutes into “Forced Pools Mineral Rights Contracts” without the right of negotiation and only under the financial terms of the drilling companies and COGCC/COGA union.”
*Anita Sherman is the Co-Lead Representative Plaintiff in WE THE PEOPLE OF COLORADO, PLAINTIFFS V. GOVERNOR JOHN W. HICKENLOOPER, DEFENDANT [A Federal Class Action-Constitutional Controversy “under construction”] **F.R.C.P. # 23 (a)(4)
Sherman is a consultant for Blue Wing Strategies, LLC in Glenwood Springs, CO, and co-founder of the citizens advocacy group Garfield Transparency Initiative. She has two children, and a pledged supporter of the international collaborative The Mothers Project. In 2013, Sherman was elected as board President for the non-profit Growing Food Forward, an organization that addresses hunger relief to the food insecure from Aspen to Parachute, with fresh organically cultivated produce.
Sherman was recently named one of 100 national #FrackingFighters, a citizens direct action initiative by MoveOn.org. For over three decades, she has been a strong community voice in lobbying legislation that provides equal protection of the law to ensure social justice with a focus on human rights to clean air, clean water, and property protections from industrial impact.