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COURT, DISTRICT COUNTY, COLORADO BOULDER

Court Address:
1777 Sixth Street P.O. Box 4249, Boulder, CO, 80306-4249
Plaintiff(s) COLORADO OIL & GAS ASSOCIATION
v.
Defendant(s) CITY OF LONGMONT COLORADO
COURT USE ONLY
Case Number: 2013CV63
Division: 3 Courtroom:
Order: Reply in Support of Stay Pending Appeal
The motion/proposed order attached hereto: SEE ATTACHED ORDER.
The Court sets bond for the Citizen Intervenors at $100.00. If the District Court Order is upheld, TOP will still be able to
obtain revenue from drilling; it will simply be delayed.
Issue Date: 10/14/2014
D D MALLARD
District Court J udge

DATE FILED: October 14, 2014 10:29 AM
CASE NUMBER: 2013CV63


DISTRICT COURT, BOULDER COUNTY, COLORADO
Address: 1777 Sixth St.
Boulder, CO 80302
Phone: (303) 4413750








COURT USE ONLY





Case Number: 2013CV63


Div.: 3




Plaintiffs: COLORADO OIL AND GAS ASSOCIATION
and COLORADO OIL AND GAS
CONSERVATION COMMISSION

PlaintiffIntervenor: TOP OPERATING CO.

Defendant: CITY OF LONGMONT,
COLORADO

DefendantIntervenors:
OUR HEALTH, OUR FUTURE, OUR
LONGMONT; SIERRA CLUB; FOOD AND
WATER WATCH; and EARTHWORKS

Attorneys for Citizen Intervenors
Names: Kevin Lynch (Atty. Reg. #39873)
Brad Bartlett (Atty. Reg. #32816)
Christopher Brummitt (Student Attorney)
LaRona Mondt (Student Attorney)
Nicholas Rising (Student Attorney)
Address: Environmental Law Clinic
University of Denver Sturm College of Law
2255 E. Evans Ave
Denver, CO 80202
Phone: (303)8716140
Email: klynch@law.du.edu
CITIZEN INTERVENORS REPLY IN SUPPORT OF STAY PENDING APPEAL

Our Health, Our Future, Our Longmont, Food & Water Watch, Sierra Club, and
Earthworks (collectively Citizen Intervenors), hereby submit this reply brief in support of
their motion for a stay pending appeal, in which they joined the motion for stay pending
appeal filed by the City of Longmont. Citizen Intervenors state the following:
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1. Citizen Intervenors motion for stay incorporated fully the Citys motion for stay,
which included the statement that a bond is not required because the City is a
municipal corporation and not required to post a bond under C.R.C.P. 62(e);
2. All parties who have stated a position (the City, the Citizen Intervenors, and TOP)
appear to agree that a stay should issue and that the City should not be required to
post a bond;
3. A requirement that the Citizen Intervenors post a bond (of approximately $20
million) under these circumstances would be meaningless, as this absurd amount of
money would likely not be raised, but a stay would issue nevertheless;
4. A supersedeas bond is based on the amount of the judgment in the trial court and
serves to secure the judgment creditors interest during any appeal. 18 Colo. Prac.
Appellate Law & Practice 7.5 (2d ed.); see also Hart v. Schwab, 990 P.2d 1131 (Colo.
App. 2000);
5. In this case, TOP did not seek any monetary judgment, and so a supersedeas bond is
not necessary and would be inappropriate under the facts of this case;
6. TOP actually agreed not to seek any monetary judgment, specifically including any
takings claims, as part of this case, as a condition for the City agreeing not to oppose
its request for intervention. TOP Compl. 15. Seeking to raise this issue at this time
is inappropriate;
7. TOP has not identified, and Citizen Intervenors are not aware of, any Colorado case
requiring a bond from other parties when a municipal corporation is also pursuing
an appeal;
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8. Although C.R.C.P. 121 123(3)(a) does give this Court discretion in setting a
supersedeas bond in cases involving nonmonetary judgments, requiring any bond,
let alone a $20 million bond, would not be appropriate in this case;
9. Numerous courts have recognized that a bond should not be required in public
interest cases such as this. See, e.g., Environmental Defense Fund, Inc. v. Corps of
Engineers of U.S. Army, 331 F.Supp. 925, 927 (D.D.C. 1971) (requiring a $1 bond);
West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir.
1971) (affirming a $100 bond); Holyfield v. Julien Entertainment.com, Inc., 2012 WL
5935358 at *1 (C.D. Cal. Nov. 27, 2012) (plaintiffs pursuing litigation to further a
public interest need not post a bond);
10. Colorado courts have recognized that only a nominal bond may be appropriate. See,
e.g., Kaiser v. Market Square Discount Liquors, Inc., 992 P.2d 636, 643 (Colo. App.
1999) (discussing a $1 bond for a preliminary injunction);
11. Colorado courts have further recognized that awarding damages to a private
company is not appropriate against a city and a nonprofit organization for wrongful
issuance of a temporary restraining order and injunction, which is analogous to a
stay pending appeal. See City and County of Denver v. Ameritrust Co. Nat. Assn, 832
P.2d 1054, 1058 (Colo. App. 1992) (affirming trial courts reliance on financial status
of parties and public interest claims to weigh heavily against assessment of several
million dollars of damages);
12. Even if a supersedeas bond were appropriate in this case, TOP has not come
forward with sufficient evidence to support a $20 million bond. Murray Herrings
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affidavit, upon which TOP bases its request, is full of assumptions and speculation.
The affidavit asserts, without supporting documentation, that it is likely that TOP
will drill many wells each of the next three years, that it is likely to cost about $5
million per well, that payout is likely to occur within a period of one year, and
assuming current hydrocarbon prices. Herring Affidavit 5;
13. In addition to being conclusory and speculative, Mr. Herrings affidavit offers no
documents in support, such as audited financials, actual well costs and profits for
other TOP wells, tax returns, cash flow analyses for wells, projections provided to
third parties such as lenders, reservoir and production projections, or anything else
to indicate how Mr. Herring arrived at the ridiculously precise
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calculation of
$19,780,683.87 in potential lost profits;
14. If the court does decide that a supersedeas bond is appropriate in this case, Citizen
Intervenors request that an evidentiary hearing be held, both in order to test the
conclusory assertions of harm put forward by TOP but also to allow Citizen
Intervenors to present evidence of the harm they would face, in terms of reduced
property values and threats to health, safety, and welfare were TOP to engage in
fracking operations near their homes and property.

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Mr. Herring did not produce any documents showing that the cost for a well is exactly
$5,000,000 and zero cents, yet his calculation of lost profits is incorrectly carried out to
that level of precision. This failure to incorporate the basic arithmetic principle of
significant figures is but one example of the flaws readily apparent in his affidavit. See, e.g.,
http://tournas.rice.edu/website/documents/SignificantFigureRules1.pdf.
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15. The health and safety risks that fracking in Longmont would pose to Citizen
Intervenors members would be irreparable, and cannot be outweighed by
speculative lost profits for TOP, making a bond of $0 appropriate in this case;
WHEREFORE, Citizen Intervenors respectfully request that the Court grant the motion for
stay, either without requiring a bond, or by requiring only a nominal bond of $1.

Respectfully submitted, this 8th day October, 2014.



s/ Kevin Lynch____________________
Kevin Lynch
Brad Bartlett
Christopher Brummitt (Student Attorney)
LaRona Mondt (Student Attorney)
Nicholas Rising (Student Attorney)

Counsel for Citizen Intervenors



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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 8
th
day of October, 2014, a true and
correct copy of the foregoing CITIZEN INTERVENORS REPLY IN SUPPORT OF STAY
PENDING APPEAL was served via the Integrated Colorado Courts EFiling System (ICCES),
on:

Karen L. Spaulding, Esq.
Beatty & Wozniak, P.C.
216 16th Street, Suite 1100
Denver, CO 80202

Phillip D. Barber, Esq.
1675 Larimer Street, Suite 620
Denver, CO 80202

Eugene Mei, Esq.
Daniel E. Kramer, Esq.
City Attorneys
City of Longmont
408 3
rd
Avenue
Longmont, CO 80501

Thomas J. Kimmell, Esq.
Zarlengo & Kimmell, PC
700 North Colorado Boulevard, Suite 598
Denver, CO 80206

John E. Jake Matter, Esq.
Julie M. Murphy, Esq.
Asst Attorney Generals
1300 Broadway, 10th Floor
Denver, CO 80203

s/ Kevin Lynch_______
Kevin Lynch

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