Boulder County is appealing a Boulder District Court ruling rejecting its claim of control over oil and gas well leases belonging to Crestone Peak Resources Operating, LLC, saying the leases are voided by the fact that the wells haven’t actually been pumping oil or gas for long periods. The appeal comes amid the county’s effort to prevent new drilling on the leases, many of which are more than 40 years old.

The County appealed the 2019 district court ruling in its lawsuit against Crestone Peak to the Colorado Supreme Court, where oral arguments can be heard here Tuesday beginning at 10 a.m.

In 2017, Crestone Peak filed a plan to drill 140 wells on 2,720 acres in Weld County adjacent to Boulder County with the Colorado Oil and Gas Conservation Commission, which approved the drilling unit.

Some of the drilling unit included open space owned by the county and private properties the county holds conservation easements on. Boulder County filed the lawsuit to prevent the drilling, but lost in district court.

In a 2018 statement about the lawsuit, County Commissioner Elise Jones said, “Those old leases didn’t envision that the property could be harmed by a multi-well mega-pad used to frack minerals located miles away. It’s our duty to safeguard the environment and people of Boulder County and these lawsuits are our implementation of that responsibility.”

According to state law, subsurface mineral owners generally have a right to reasonable access to the surface in order to recover those minerals.

“In a nutshell, the issue is whether standard oil and gas leases require the actual production of oil and gas to remain viable… or whether they can be maintained with idle wells,” Kate Burke, Senior Assistant County Attorney told the Denver Gazette Monday.

If the state Supreme Court rules that the statutory definition of oil and gas production requires actual extraction of the minerals “for long periods,” says Burke, then the leases automatically expired decades ago and the county “will have full control over the mineral rights, to the extent possible under state law,” according to a Sept. 15 press release.

The issue is further complicated by recent legislation that gives cities and counties much greater control over mineral extraction. Senate Bill 19-181 gave local governments “land use authority to regulate the siting of oil and gas locations to minimize adverse impacts to public safety, health, welfare, and the environment…”

Burke said that since the lawsuit was filed, no application for the drilling project has been filed with the county. Applications to the Colorado Oil and Gas Conservation Commission have been on hold there. Burke said that while there was a drilling moratorium in 2019, it expired in 2020 and there is currently no drilling moratorium in place in Boulder County.

According to published reports, Crestone Peak’s assets are now part of Civitas Resources, a Denver-based energy company formed by an “expanded merger of long-standing Colorado oil and natural gas peer companies.”

Attempts to contact Civitas prior to press time were unsuccessful.