Colorado Appeals Court Rejects Fracking Company’s Attempt to Make it Harder for Victims of Fracking Contamination to Sue for Damages

A Colorado appeals court recently denied a request by a fracking company to issue a “Lone Pine order” that would have made it more difficult for plaintiff landowners to sue fracking companies for alleged fracking contamination. The court’s rejection reiterates a precedent that such additional hurdles are not appropriate in the context of fracking contamination suits. Lone Pine orders hurt a landowner’s ability to sue fracking companies because they require landowners to present a certain amount of evidence of contamination and causation before the landowner is able to proceed with any of the legal “discovery” process. In the discovery process, documents and information are exchanged and witnesses are deposed. The discovery process often yields the clearest and most valuable evidence establishing fault and causation. For this reason, placing the burden of proof on the landowners before the discovery period even commences makes it harder for landowners to establish the required proof, and it would have the practical effect of foreclosing many contamination suits.

In Strudley v. Antero Resources Corp., No. 2011-CV-22 (Colo. Dist. Ct., Denver Co. May 9, 2012), plaintiff landowners alleged that defendant fracking operators within one mile of plaintiffs’ property contaminated plaintiffs’ water wells with fracking chemicals. The district court issued a “Lone Pine order” requiring plaintiffs to demonstrate their exposure, injury, and evidence of causation as a threshold matter before discovery could proceed. Plaintiffs failed to make the requisite prima facie showing of causation, and the district court granted the defendants’ motion to dismiss. On July 3, 2013, however, a Colorado Court of Appeals overturned the Lone Pine order ruling and dismissal order. The Court of Appeals found that two Colorado Supreme Court cases, along with differences between the state and federal civil procedure rules, made Lone Pine orders inappropriate in the context of the Strudley suit. The defendants have now asked the Colorado Supreme Court to review the appeals court’s rejection of the Lone Pine order.

Although the Strudley case is in Colorado state court, it has important implications nationwide. First, if the Colorado Supreme Court overturns the appeals court ruling and reinstates the Lone Pine order, it could establish a precedent for other courts to issue similar Lone Pine orders, even outside of Colorado. On the other hand, if the Colorado Supreme Court affirms the Court of Appeals’ rejection of the lower court ruling, it would follow most other courts, which have found Lone Pine orders inappropriate in the fracking contamination context. See, for example, Hagy v. Equitable Prod. Co., 2:10-CV-01372, 2012 WL 713778 (S.D.W. Va. Mar. 5, 2012); 2012 WL 3864954 (Sept. 5, 2012) (rejecting request for court to issue a Lone Pine order); Kamuck v. Shell Energy Holdings GP, LLC, No. 4:11-cv-01425-MCC (M.D. Pa., August 3, 2011) (same); but see Baker, et al. v. Anschutz Exploration Corp., No. 11-06119 (W.D.N.Y.) (Doc. 112, filed June 27, 2013). The meaning of the Strudley Court of Appeals’ decision is that it is now more difficult for an oil company defendant to convince a court to use a Lone Pine order, and for this reason the appeals court decision supports landowner rights. All eyes are now on the Colorado Supreme Court to see if they decide to review the matter, and if so, whether they will let stand the appeals court decision or reinstate the Lone Pine order.