Judge hears case on Loveland fracking vote, 8th Judicial District Court Judge Daniel Kaup says he will issue a written ruling within 30 days

Judge hears case on Loveland fracking vote, 8th Judicial District Court Judge Daniel Kaup says he will issue a written ruling within 30 days by Jessica Maher, December 18, 2013, Reporter-Herald
A vote in Loveland on a two-year fracking moratorium is now in the hands of the 8th Judicial District Court judge who heard hours of arguments Wednesday on whether petitions for a citizen-driven initiative are valid. Last month, District Judge Daniel Kaup rejected an injunction request from the advocacy group Protect Our Loveland to force a speedy election on the moratorium issue, but he set a schedule for expedited proceedings in the case that now involves three parties. Loveland resident Larry Sarner filed a lawsuit against the city in September after City Clerk Terry Andrews held a protest hearing on his challenge against the petitions but still ruled that the petitions were sufficient to move on to the ballot. Attorneys for the city, Protect Our Loveland and Sarner appeared before Kaup on Wednesday for the scheduled hearing. Though Protect Our Loveland filed suit against the city protesting the City Council’s decision to delay placing the issue on the Nov. 5 ballot, the group found itself on the city’s side Wednesday — attorneys for both countered claims that Andrews’ determination of petition sufficiency should be overturned.

Fatal Flaw?
In July, Protect Our Loveland submitted petitions to Andrews for a ballot initiative that would ask voters to place a two-year moratorium on the use of hydraulic fracturing, or fracking, within city limits while impacts of the process on human health and property values are studied. A month later, Sarner filed a protest to the initiative process and petitions, identifying issues he claims render the initiative insufficient for the ballot. He argued that the ballot question violates Loveland’s single-subject rule, seeks to become effective retroactively, is pre-empted by state law and contains invalid signatures. But Sarner’s attorney, Jack Silver of the Denver-based firm Holsinger Law, devoted much of his time Wednesday to what he called the systemic issue and the “fatal flaw” of the initiative. Silver argued that Andrews relied on an incorrect number of voters when she set the threshold for the number of signatures Protect Our Loveland was required to collect. That number — 2,253 — did not include inactive voters, according to Silver, who drew on testimony provided at the protest hearing from Michael Hagihara, voter registration manager for the Secretary of State. A new law took effect about two weeks before Andrews pulled the number of registered voters from the Larimer County Clerk and Recorder’s office that counts active and inactive voters, and Silver believes as many as 3,000 were not counted. “The necessity to have an exact number goes to the essence of any election,” Silver said.

City Attorney John Duval displayed email correspondence between the city clerk’s office and the county as evidence that a list of registered voters was requested and obtained on May 21, as required of her by law. He also drew on Hagihara’s testimony, but disagreed with Silver’s conclusions. “To say that the evidence is clear a mistake had been made is just not correct,” Duval said.

Decision within 30 Days
The judge indicated he will not address Sarner’s claim that the ballot initiative is pre-empted by state law, agreeing with Duval that it’s a matter to be decided if and when the ballot measure is approved. Duval and attorneys for Protect Our Loveland argued that the court does not have jurisdiction over the retroactive application of the initiative until the ordinance becomes law, either. In his arguments, Duval also asked the court to dismiss claims that the ordinance violates the single-subject rule, arguing that the court must uphold the clerk’s decisions because they are supported by competent evidence in the record. Kaup had questions, however, about language in the proposed ordinance that calls for a moratorium on fracking as well as the storage and disposal of its waste products. A non-drilling operation could potentially be impacted by the moratorium of storage and disposal of waste products within the city, Kaup said. “I realize it’s all connected but the outcome could be different,” he said. Kaup said he will issue a written ruling within 30 days. If he rejects Sarner’s protest, a special election would be required within 150 days of the ruling. [Emphasis added]

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