JurisdictionUnited States
Rights-of-Way How Right is Your Right-of-Way?
(May 1998)


Michael E. McLachlan
McLachlan & Goldman, LLC
La Plata County Attorney
850 1/2 Main
Durango, Colorado 81301
Phone: (970) 259-8747; Fax: (970) 259-8790
LawMcgld @ Frontier.Net


This presentation is limited in scope to local government perspectives to right-of-way issues arising in Colorado. Primarily, the focus is on oil and gas pipeline rights of way. The opinions expressed are those of Mr. McLachlan and are not necessarily those of La Plata County, Colorado Counties Inc. or the Colorado County Attorney Association.

I. The Tension Between Local and State Interests in Regulating Rights-of-Way for Pipeline and Other Major Facilities

A. Life Before Bowen-Edwards: The Colorado Regulatory Scheme From 1907 to 1992

1. Pipelines In its formative statutory enactments, the General Laws, Section 279, the Colorado Legislature authorized the formation of corporations for the purpose of constructing a pipeline for the conveyance of gas, water or oil. The corporation could be formed by certified and had "the right-of-way over the line named in the certificate". C.R.S. 73, 7-43-101 (1997 ed.). If the pipeline company could not reach an agreement with the private landowner who was subject to the right-of-way, condemnation was available. This legal model required only filing with the State, not the counties.

In 1907, Colorado enacted legislation establishing rights-of-way for tunnel companies, pipeline companies, electric power companies, tramway companies, and common carriers. C.R.S. 73, 38-4-101 et seq. (1997 ed.). That legislation also established that the mineral owner was entitled to a right to all ores and minerals taken from them at the intersection of the tunnel, gave owners a right of access to the tunnel, and required tunnel companies, pipeline companies, power companies and tramway companies to file a map or survey of the proposed lines for which is desired a right of way with the county clerk and recorder. It can be fairly said this procedure was hardly regulatory, since the clerk and recorder could only accept the filing and the board of county commissioners had no review powers or duties.

The same year that this was enacted, 1907, Colorado passed the Rights-of-way: Transmission Companies law, C.R.S. 73, 38-5-101 et seq. (1997 ed). This essentially gave to domestic and foreign (presumably non-Coloradans) gas, electric and pipeline companies the right to construct lines or pipelines along any public highway of Colorado. It also gave rights-of-way across state land, established the power to contract and finally, granted the power of eminent domain. id., 38-5-104, 38-5-105, including the right to immediate possession which the condemnation action was pending. Importantly, a pipeline company had to obtain the consent of the local city or town to put something in their public right-of-way. id. 38-5-108. In recent years, the basic act has been extended to encompass Telecommunication Providers C.R.S. 73, 38-5.5-101 et seq(1997 ed.).

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2. Oil and Gas Conservation Commission In 1955, Colorado created its first regulatory body for the oil and gas industry, the Colorado Oil and Gas Conservation Commission (OGCC), C.R.S.73, 34-6-101 (1997 ed.) et seq. The jurisdiction of the OGCC was both broad and limited in scope. It was broad in that it the powers of the OGCC enumerated in id., 34-6-105 extended to all persons and property, public and private, necessary to enforce the provisions of the Act. The declared purposes of the OGCC included to foster, encourage and promote the development, production, and utilization of the natural resources of the State, id. 34-60-102. The same statute embodied a strong definition of waste, declaring that "it is the intent and purpose of this article to permit each oil and gas pool in Colorado to produce up to its maximum efficient rate of production, subject to the prohibition of waste". Waste was expressly prohibited, again, in yet another statute. id. 34-60-107.

Oil and Gas Operations, another jurisdictional touchstone, were broadly defined, including exploration for oil and gas, the siting, drilling, deepening of wells and most importantly here, production, operations related to any such well including the installation of flowlines and gathering systems; the generation , transportation, storage, of exploration and production wastes id. 34-60-103 (6.5). (emphasis added)

Significantly, nowhere did the Act use the word pipeline. It did not mention local land use or local government. Nor did it mention the public, health, safety welfare or the environment.

3. Colorado Land Use Statutes and Local Land Use Control

Colorado Counties and Cities have been in the land use business since 1939. The principal statutes are the Local Government Land Use Control Enabling Act of 1974, C.R.S. 73, 29-20-101, et seq. (1997 ed). which declares it is the "policy of the state to clarify and grant broad authority to local governments to plan for and regulate the use of land within their respective jurisdictions" id. 29-20—102 (emphasis added) and the County Planning Code C.R.S. 73, 30-28-101 et seq.

The Local Government Act granted broad powers to local governments to regulate development and activities in hazardous areas, protect lands from activities which could cause immediate or foreseeable material danger to wildlife habitat and endanger a wildlife species, preserve areas of historical or archeological importance, regulate the establishment of roads (excepting mining claims under 30 U.S.C. 21) regulate the location of activities and development which may result in significant changes is population density, provide for phased development of services and facilities, regulate the use of land on the basis of impact on the community or surrounding areas, planning and regulating the use of land so as to provide planned and orderly use of it and protection with of the environment in a manner consistent with constitutional rights.

This is an expansive and legally broad statement of legislative objectives and an extensive statement of jurisdiction of local governments to plan and regulate. This legislation, originally Senate Bill 35, did not in any term exclude oil and gas development from the local government regulatory process known as land use.

The County Planning Code similarly gave broad powers to plan, zone and regulate...

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