Appeals court hears Silt Mesa lawsuit
Special to the Post Independent
The Colorado Court of Appeals is weighing a potentially precedent-setting case pitting a Garfield County family against the Denver-based oil and gas company they accuse of contaminating their air and water well, sickening them and forcing them from their home.
The Strudley family filed suit against Antero Resources and two of their contractors in Denver in May 2011, claiming fumes and chemicals from three oil and gas wells within a mile of their Silt Mesa home made them so ill they were forced to move to Glenwood Springs.
A Denver District Court judge in May 2012 dismissed the Strudley’s personal injury and property damage complaint based on a “Lone Pine Order” that requires plaintiffs to make a “prima facie” (at first blush) showing of the merits of their case before discovery is allowed.
Bill and Beth Strudley and their two teenage sons say there was an overwhelming odor of chemicals at their home and they suffered from endless coughing, severe rashes, blackouts and nosebleeds before finally being told by doctors in early 2011 that they should move. The Strudleys could not be reached for additional comment, but their Boulder-based attorney, Corey Zurbuch of Frascona, Joiner, Goodman and Greenstein, argued their appeal earlier this month.
Zurbuch told the Court of Appeals in Denver that the trial court “abused its discretion” and went against two previous Colorado Supreme Court rulings in requiring a prima facie showing of the merits of the Strudley’s claims prior to discovery before ultimately dismissing the case.
“We did produce information about our clients’ medical conditions, including records from their treating physicians that associated the plaintiffs’ medical conditions with the defendant’s oil and gas well activities,” Zurbuch said. “What we needed and what the court didn’t give us is the information that was solely in the purview of the defendants, the chemicals that they had been using on site, were there any spills, were there any problems with the cement used in the bore of the well.”
But Antero attorney Daniel Dunn of Hogan and Lovells in Denver countered that the Strudleys and their lawyers had all the information they needed to make their case prior to it moving to the discovery stage.
“To suggest that they were not given discovery is not true,” he argued in court. “They got all of the pertinent information regarding monitoring of the environment from Antero. That’s in the disclosures. That was available to them.”
Dunn also told the appeals court that the Colorado Oil and Gas Conservation Commission (COGCC) — the state’s chief regulatory agency for oil and gas drilling — could find no violations of state law.
“We provided the court with sworn affidavits calling into serious questions the bona fides of the claim,” Dunn said. “There was no incident involving the release of chemicals to the environment. We were in compliance with all laws.”
But the Strudleys’ attorney said additional discovery was needed to know exactly what chemicals were being used in such close proximity to his clients’ home.
“We produced evidence of contamination in our clients’ water and their air,” Zurbuch said. “What we needed to do was to link what was used on site to the defendants, and we weren’t given that information.”
The Court of Appeals appeared to be more focused on the Lone Pine Order itself, and existing case law dictating its use.
“Let me share with you my concern at this point,” Judge Gilbert Roman told Dunn. “You started off by saying this would be easy for us because we weren’t blazing a trail, but in order to get where you want to go we have to distinguish two Colorado Supreme Court cases along the way because there is no other published decision out there that does what you want us to do today.”
Dunn agreed there is no case law dealing with the specific issue, but argued that the two Supreme Court cases both came before 1995 amendments to the Colorado rules of civil procedure that he says were “a game-changer in how discovery is viewed.”
The Court of Appeals ruling on the Strudleys’ case, expected later this summer or fall, could set precedent in terms of how much discovery is allowed in future oil and gas drilling contamination cases.
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