Cordero v. Leahy

JUSTICE MARQUEZ delivered the Opinion of the Court. [ 1 In this opinion, we review the actions of the Title Board in setting titles and ballot title and submission clauses (collectively, "titles") for Initiatives 20183-2014 # 90 and # 98 (collectively, "Proposed Initiatives").1 We hold that each of the Proposed Initiatives contain one subject-the expansion of local governments' authority to enact laws regulating oil and gas development that are more restrictive than state law. We also hold that the titles set by the Title Board satisfy the clear title requirement because they are not misleading and they fairly reflect the pur — 158 — pose of the Proposed Initiatives. We therefore affirm the actions of the Title Board. I. Facts and Procedural History. T2 Caitlin Leahy and Gregory Diamond ("Proponents") are the designated proponents of the Proposed Initiatives. These initiatives are substantially similar in language, and are alternative versions of a single measure Proponents seek to place on the ballot for the 2014 general election.2 Each initiative would amend the Colorado Constitution by creating article XXX, which would authorize local governments to enact laws regulating oil and gas development that are more restrictive than state law. The principal difference3 between the two initiatives is that Initiative #90 states that the authority of local governments to regulate oil and gas development "includes the ability to enact limits," whereas Initiative #98 states that the authority includes "the ability to enact prohibitions or limits." (Emphasis added). Both initiatives provide that the provisions of the proposed article XXX apply to "every Colorado city, town, county, and city and county, notwithstanding any provision of article XX, or section 16 of article XIV, of the Colorado constitution." Finally, both initiatives state that the laws enacted pursuant to the proposed article XXX are not a taking of private property and do not require the payment of just compensation pursuant to see-tions 14 and 15 of article II of the Colorado Constitution. T3 On March 21, 2014, Proponents submitted a final version of the Proposed Initiatives to the Secretary of State. On April 3, 2014, the Title Board conducted hearings for each initiative and set titles in accordance with section 1-40-106(1), C.R.S. (2018). On April 10, 2014, Mizraim Cordero and Scott Pres-tidge ("Petitioners") filed motions for rehearing, arguing that the Proposed Initiatives violated the single subject requirement and that the titles failed to describe important aspects of the measures and contained an impermissible catch phrase. T4 Following a rehearing on April 16, 2014, the Title Board concluded that the Proposed Initiatives contained a single subject, but modified the titles in response to concerns raised by the Petitioners. Specifically, the Title Board removed the term "hydraulic fracturing" from both titles, and removed the phrase "prohibit or" from the title for Initiative #98, upon Proponents' oral request. 15 Petitioners now raise several challenges to the Title Board's actions under section 1-40-107(2), C.R.S. (2013). Petitioners contend that the Title Board erred in setting the titles because the Proposed Initiatives contain multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution and section 1-40-106.5, CRS. (2013). In addition, Petitioners contend that the titles of the Proposed Initiatives are misleading because: (1) they do not reflect the definition of "oil and gas development"; and (2) Initiative # 98 omits the term "prohibit." 6 Proponents filed a eross-petition challenging the Title Board's removal of the term "hydraulic fracturing" from the title for Initiative # 90. II. Standard of Review 17 In reviewing Title Board decisions, "we employ all legitimate presumptions in favor of the propriety of the Board's actions." In re Title, Ballot Title & Submission Clause for 2011-2012 No. 3, 2012 CO 25, ¶ 6, 274 P.3d 562, 565; In re Title, Ballot Title & Submission Clause for 2009-2010 No. 45, 234 P.3d 642, 645 (Colo.2010). We will only overturn the Title Board's finding that an initiative contains a single subject in a clear case. Im re 2011-2012 No. 3, 274 P.3d at 565. — 159 — T8 The Title Board is vested with considerable discretion in setting the title and the ballot title and submission clause. In re Title, Ballot Title & Submission Clause, & Summary Pertaining to Proposed Initiative on Parental Choice in Educ., 917 P.2d 292, 294 (Colo.1996). We will reverse the Title Board's decision only if a title is insufficient, unfair, or misleading. In re 2009-2010 No. 45, 284 P.3Bd at 648; see also In re Title, Ballot Title & Submission Clause, & Summary for 1999-2000 No. 29, 972 P.2d 257, 266 (Colo.1999) (observing that this court will reverse a title only if it contains a "material omission, misstatement, or misrepresentation") (internal quotation marks omitted). In our limited review of the Title Board's actions, we do not address the merits of the proposed initiatives nor suggest how they might be applied if enacted. In re 2011-2012 No.3, 274 P.8d at 565. However, we must examine their wording to determine whether the initiatives and their titles comport with the single subject and clear title requirements. In re Title, Ballot Title & Submission Clause, & Summary for 2005-2006 No. 75, 188 P.8d 267, 271 (Colo.2005). In conducting this limited inquiry, we employ the general rules of statutory construction and give words and phrases their plain and ordinary meaning. In re Title, Ballot Title & Submission Clause for 2007-2008 No. 17, 172 P.3d 871, 874 (Colo.2007). III Analysis A. Single Subject Requirement "I 10 Petitioners assert that the Title Board lacked authority to set the titles because the Proposed Initiatives contain multiple subjects in violation of the single subject requirement in article V, section 1 (5.5) of the Colorado Constitution, which provides: No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any measure which shall not be expressed in the title, such measure shall be void only as to so much thereof as shall not be so expressed. If a measure contains more than one subject, such that a ballot title cannot be fixed that clearly expresses a single subject, no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls. See also § 1-40-106.5(l)(a), C.R.S. (2013) (addressing the constitutional single subject requirement). 111 The single subject requirement serves two functions: (1) "[tlo forbid the treatment of incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their merits"; and (2) "[tlo prevent surreptitious measures and apprise the people of the subject of each measure, that is, to prevent surprise and fraud from being practiced upon voters." § 1-40-106.5(1)(e). Thus, "the subject matter of an initiative must be necessarily and properly connected rather than disconnected or incongruous." In re Title, Ballot Title & Submission Clause for 2011-2012 No. 8, 2012 CO.25, 1 9, 274 P.8d 562, 565 (internal quotation marks and citation omitted). An initiative violates the single subject requirement where it relates to more than one subject and has at least two distinct and separate purposes. [Id. (citing People ex. rel. Elder v. Sours, 31 Colo. 369, 403, 74 P. 167, 177 (1903)). Conversely, a proposed initiative that "tends to affect or carry out one general objective or purpose presents only one subject," and "provisions necessary to effectuate the purpose of the measure are properly included within its text." In re Title, Ballot Title & Submission Clause, & Summary for 1999-2000 No. 256, 12 P.3d 246, 253 (Colo. 2000). 112 Because the Title Board "is vested with considerable discretion in setting the title [and] ballot title and submission clause," in reviewing actions of the Title Board, "we must liberally construe the single-subject requirements for initiatives." In re Title, Ballot Title & Submission Clause, & Summary for Proposed Initiative "1996-17, 920 P.2d 798, 802 (Colo.1996) (per curiam). — 160 — We also liberally construe the single subject requirement to "avoid unduly restricting the initiative process." In re Title, Ballot Title & Submission Clause for 2009-2010 No. 24, 218 P.3d 350, 353 (Colo.2009). 1. The Titles Satisfy the Single Subject Requirement $13 The Proposed Initiatives expand local governments' authority to enact laws regulating oil and gas development that are more restrictive than state law. Section 1 of each initiative provides the rationale for the measure by setting forth certain findings and declarations, namely: "the conduct of oil and gas development may impact public health, safety, welfare and the environment"; "any impacts are experienced most directly by local communities"; and "to preserve the public's health, safety, welfare, and the environment, the people desire to expand the authority of local governments by vesting in them the right to regulate oil and gas development." Section 1 of Initiative #98 adds an additional declaration that "the citizens of local communities have historically relied upon local governments to regulate local land uses and to minimize potential land use conflicts between industrial development and residential development." 1 14 Section 2 of each initiative describes the grant of authority and the seope of that grant of authority. Specifically, section 2 defines "oil and gas development" to mean "exploration for and production of Colorado's oil, gas, other gaseous and liquid hydrocarbons, and carbon dioxide." It vests in each local government "the right, power, and authority ... to regulate oil and gas development within their geographic borders" and provides that local enactments "may be more restrictive and protective of a community's health, safety, welfare, and environment" than state laws or regulations. It provides that the proposed article XXX would apply to every "city, town, county, and city and county" in Colorado. The Proposed Initiatives differ slightly in that Initiative # 98 provides that this "right, power, and authority" to regulate includes the ability to enact "limits" on oil and gas development, whereas Initiative #90 refers to "prohibitions or limits" on such development. (Emphasis added). T15 Section 3 of each initiative declares that "any law, regulation, prohibition, or limit enacted pursuant to this article is not a taking of private property and does not require the payment of compensation pursuant to sections 14 and 15 of article II of the Colorado constitution." Finally, section 4 of each initiative states that the measure is self-executing and its provisions are severable. Section 4 also provides that if any law enacted under the authority granted in the initiative conflicts with a state law, the more restrictive and protective law governs. T 16 Petitioners contend that the Proposed Initiatives contain multiple subjects. In addition to expanding local governments' authority to enact laws regulating oil and gas development, Petitioners contend that the initiatives: (1) exempt local governments from complying with the requirements of article XX and section 16 of article XIV of the Colorado Constitution; (2) change the legal standard used to determine the validity of a local law that conflicts with a state law; and (8) deprive property owners of the rights and protections granted under section 14 and 15 of article II of the Colorado Constitution. We disagree. 117 Petitioners overstate the breadth of the Proposed Initiatives, The Proposed Initiatives do not broadly change constitutional home rule provisions, the preemption doctrine, or takings provisions; rather, the initiatives affect these constitutional provisions and doctrines only inasmuch as they directly relate to the subject matter of the Proposed Initiatives-the expansion of local governments' authority to enact laws regulating oil and gas development that are more restrictive than state law. However, "[wle have never held that just because a proposal may have different effects ... it necessarily violates the single-subject requirement." In re 1999-2000 No. 256, 12 P.3d at 254. Indeed, "Itlhe effects this measure could have on Colorado ... law if adopted by voters are irrelevant to our review of whether [the proposed initiative] and its Titles contain a single subject." In re 2011-2012 No. 3, ¶ 20 274 P.3d at 568 n. 2. — 161 — {18 First, any effect the Proposed Initiatives would have on Colorado's constitutional home rule provisions does not constitute a separate subject. The alteration of the existing power and authority of home rule and statutory cities to enact certain regulations pertaining to the central purpose of the initiative does not violate the single subject requirement. Cf. In re 1999-2000 No. 256, 12 P.3d at 254 (holding that the curtailment of home rule powers over development is a necessary result of the measure's central purpose to manage development, and thus is not a separate subject). The Proposed Initiatives identify the local government entities, ie., "every Colorado city, town, county, and city and county," that have authority to enact more restrictive regulations on oil and gas development pursuant to the initiatives. The designation of the government entities that hold the regulatory power authorized under the initiatives is necessarily and properly connected to the central purpose of the measures. To the extent that this designation has an effect on article XX and section 16 of article XIV of the Colorado Constitution, the effect is limited to local enactments regulating oil and gas development made under the authority of the Proposed Initiatives. I 19 Similarly, any effect the Proposed Initiatives would have on Colorado's preemption doctrine does not constitute a separate subject. Indeed, the central purpose of the initiatives is to grant local governments the authority to enact more restrictive regulations on oil and gas development within their respective jurisdictions. Thus, that the Proposed Initiatives declare that more restrictive regulations enacted under the initiatives would govern over conflicting state laws is necessarily and properly connected to the initiatives' central purpose. Cf. In re Title, Ballot Title & Submission Clause, & Summary for 1997-1998 No. 112, 962 P.2d 255, 256 (Colo.1998) (per curiam) (rejecting single subject challenge to an initiative that required state laws and regulations regarding livestock to be uniform and that deemed existing laws and regulations that violated the uniformity requirement to be unconstitutional). 1 20 Finally, as stated above, the Proposed Initiatives declare that "[alny law, regulation, prohibition, or limit enacted pursuant to this article is not a taking of private property and does not require the payment of compensation pursuant to sections 14 and 15 of article II of the Colorado constitution." Petitioners contend that this change to the property rights of mineral owners constitutes a separate subject. To the contrary, the "not a taking" provision applies only to those regulations enacted under the authority granted in the initiatives. Nothing the Proposed Initiatives indicates any broader reach of the "not a taking" provision. Rather, this provision is necessarily and properly connected to-if not completely dependent upon-the authority to enact local regulations conferred under the Proposed Initiatives. 121 The crux of Petitioners' argument is that the "not a taking" provision is a bad policy choice. Petitioners assert that under the "not a taking" provision, "liberties and property rights of minerals owners are affected in a manner that is unprecedented in this state." Petitioners contend that they "are aware of no other Colorado constitutional provision, law or regulation which ... allows for the taking of property for a private use or that allows for any takings without just compensation." However, in determining whether a proposed initiative comports with the single subject requirement, we do not address the merits of the proposed initiative or predict how it may be applied if adopted by the electorate. In re Title, Ballot Title & Submission Clause for 2007-2008 No. 62, 184 P.3d 52, 58 (Colo.2008). Whether a proposed initiative is a "bad idea" is not the test of whether it meets the single subject requirement. 22 In short, we hold that the Proposed Initiatives contain one subject-the expansion of local governments' authority to enact laws regulating oil and gas development that are more restrictive than state law. The initiatives' effect, if any, on constitutional home rule provisions, the preemption doctrine, or the takings provisions extends no further than the local enactments regulating oil and gas development that would be permitted under the Proposed Initiatives. — 162 — B. Clear Title Requirement 123 The Colorado Constitution dictates that an initiative's single subject shall be clearly expressed in its title. See Colo. Const. art. V, § 1(5.5); In re Title, Ballot Title & Submission Clause for 2011-2012 No. 45, 2012 CO 26, ¶ 21, 274 P.8d 576, 581. The title and submission clause should enable the electorate, whether familiar or unfamiliar with the subject matter of a particular proposal, to determine intelligently whether to support or oppose such a proposal. In re Title, Ballot Title & Submission Clause for 2009-2010 No. 45, 284 P.3d 642, 648 (Colo. 2010) (internal quotation marks and citations omitted). When it sets a title, the Title Board "shall consider the public confusion that might be caused by misleading titles and shall, whenever practicable, avoid titles for which the general understanding of the effect of a 'yes/for' or 'no/against' vote will be unclear." § 1-40-106(8)(b), C.R.S. (2018)4 The title "shall correctly and fairly express the true intent and meaning" of the initiative. Id. 1 24 The Title Board is given discretion in resolving interrelated problems of length, complexity, and clarity in setting a title and ballot title and submission clause. In re Title Ballot Title & Submission Clause, & Summary Clause for a Petition on Sch. Fin., 875 P.2d 207, 212 (Colo.1994). The Title Board's duty in setting a title is to summarize the central features of a proposed initiative; in so doing, the Title Board is not required to explain the meaning or potential effects of the proposed initiative on the current statutory scheme. See id. 125 When reviewing a challenge to the title and ballot title and submission clause, we employ all legitimate presumptions in favor of the propriety of the Title Board's actions. In re 2009-2010 No. 45, 284 P.3d at 645. We will not consider whether the Title Board set the best possible title. Id. at 648. Rather, the title must fairly reflect the proposed initiative such that voters will not be misled into supporting or opposing the initiative because of the words employed by the Title Board. In re 2011-2012 No. 45, 274 P.3d at 582. 1. The Titles Satisfy the Clear Title Requirement 126 Petitioners contend that the titles of the Proposed Initiatives are misleading because: (1) they do not reflect the definition of "oil and gas development" set out in the initiatives' text; and (2) the title for Initiative # 98 omits the term "prohibit." 1 27 In their eross-petition, Proponents argue that the Title Board erred in removing the phrase "hydraulic fracturing" from the title for Initiative #90. We disagree with the contentions by both Petitioners and Proponents, and hold that the titles set by the Title Board are not misleading and fairly reflect the purpose of the Proposed Initiatives. i. 128 Petitioners argue that the titles for the Proposed Initiatives are misleading because they omit the definition of "oil and gas development" and thus fail to notify voters that local governments' authority to regulate is limited to oil and gas owned by the State. Section 2 of the Proposed Initiatives states: "For purposes of this article, 'oil and gas development' means exploration for and production of Colorado's oil, gas, other gaseous and liquid hydrocarbons, and carbon dioxide." (Emphasis added). Petitioners argue that the use of the possessive noun, "Colorado's," indicates that local governments are limited to regulating minerals owned by the state and administered by the State Land Board. 129 Proponents argue that the initiatives apply to oil, gas, other gaseous and liquid hydrocarbons, and carbon dioxide located within Colorado's geographic boundaries, as evidenced by section 2 of each initiative, — 163 — which states that "the people of the State of Colorado hereby vest the right, power, and authority in local governments to regulate oil and gas development within their geographic borders." (Emphasis added). Proponents also argue that because the "not a taking" provision in section 3 applies only to privately-owned resources, Petitioners' interpretation that the Proposed Initiatives apply only to state-owned oil and gas resources makes little sense. 30 The Title Board relied on Proponents' testimony regarding the meaning of the initiatives to conclude that the term "Colorado's" referred to the state's geographic boundaries. See In re Title, Ballot Title & Submission Clause, & Summary for Proposed Initiative on Water Rights, 877 P.2d 321, 327 (Colo.1994) ("It is appropriate for the Board, when setting a title, to consider the testimony of Proponents concerning the intent and meaning of a proposal."). 1 31 We conclude that nothing in the plain language of the Proposed Initiatives limits their application to state-owned oil and gas resources. In construing the text of a proposed initiative, we employ general rules of statutory construction and accord the language of the proposed initiative and its titles its plain meaning. In re 2011-2012 No. 3, 274 P.3d at 565. When read as a whole, "oil and gas development" as used in the Proposed Initiatives means exploration for and production of oil, gas, other gaseous and liquid hydrocarbons, and carbon dioxide located within Colorado's geographic boundaries. We thus disagree with Petitioners contention that the titles of the Proposed Initiatives are misleading insofar as they omit the definition of "oil and gas development." See In re Proposed Initiated Constitutional Amendment Concerning the Fair Treatment of Injured Workers Amendment, 873 P.2d 718, 720 (Colo.1994) (rejecting a challenge to a ballot title because "petitioners' argument is based on their interpretation of the proposed initiative, not on its express language"). H. 132 Section 2 of Initiative #90 states that the "right, power, and authority" granted to local governments includes the ability to enact prohibitions or limits on oil and gas development. Section 2 of Initiative # 98 refers only to local governments' ability to enact limits on oil and gas development. Despite this difference in wording, the Title Board initially set identical titles for Initiatives #90 and #93, and each included the phrase, "allowing local governments to prohibit or limit oil and gas development." (Emphasis added). At the April 16, 2014, rehearing, Proponents raised this issue with the Title Board, and, consistent with the language of section 2 of Initiative # 93, the Title Board amended the title for that initiative by deleting the words "prohibit or." The final title for Initiative #98 therefore states that the initiative "increas[es]} local government authority to limit oil and gas development." (Emphasis added). 133 Petitioners argue that the title for Initiative # 98 fails to indicate that the initiative allows local governments to enact "prohibitions" related to oil and gas development. Although the words "prohibit or" do not appear in section 2 of Initiative # 983, Petitioners contend that the phrase "enact limits" could be interpreted to include the ability to enact prohibitions on oil and gas development. Additionally, they argue that the presence of "prohibition" in section 8 of the initiative ("[alny law, regulation, prohibition, or limit enacted pursuant to this article is not a taking ...") (emphasis added) indicates that "the ability to enact limits on oil and gas development," as set out in section 2, includes the ability to prohibit oil and gas development.5 Thus, they contend that the Title Board erred by removing the word "prohibit" from the title for Initiative # 98. — 164 — 34 In our view, the Title Board appropriately deferred to Proponents' testimony at the rehearing that the omission of the word "prohibitions" in section 2 of Initiative # 98 was intentional. See In re Title, Ballot Title & Submission Clause, & Summary for 1999-2000 No. 25, 974 P.2d 458, 465 (Colo.1999) ("the Board must give deference to the intent of the proposal as expressed by its proponent . without neglecting its duty to consider the public confusion that might result from misleading titles"); In re Proposed Initiated Constitutional Amendment Concerning Unsafe Workplace Env't, 830 P.2d 1031, 1034 (Colo.1992) (consideration of testimony from the proponent is appropriate). In amending the initial title for Initiative # 98 by striking the phrase "prohibit or," the final title now reflects the difference in language of section 2 of the initiative, and accurately distinguishes Initiative #98 from Initiative # 90. Whether, as Petitioners contend, the phrase, "ability to enact limits," in the initiative encompasses the "ability to prohibit" is a question of interpretation, which is beyond the scope of the Title Board's duties when setting a title. See In re Proposed Initiated Constitutional Amendment Concerning Fair Fishing, 877 P.2d 1355, 1362 (Colo.1994) ("It is not the function of the Board to determine the meaning of the language of an initiative.... Nor is the function of the Board to disclose every possible interpretation of the language of the initiative."); see also In re Title, Ballot Title & Submission Clause, & Summary For 1999-2000 No. 255, 4 P.3d 485, 498 (Colo.2000) (the Title Board is generally not required to define a term that is undefined in the proposed measure). We thus hold that the title set by the Title Board for Initiative #938 satisfies the clear title requirement because it is not misleading, and it fairly reflects the language and purpose of Initiative # 98. fil. 185 In their eross-petition, Proponents contend that the Title Board erred in removing the phrase "hydraulic fracturing" from the title for Initiative #906 and that the title should mirror the language in seetion 2 of the initiative authorizing local government regulation of "oil and gas development, including hydraulic fracturing." (Emphasis added). According to Proponents, the revised title is misleading because it fails to advise the electorate of the central purpose of the initiative. £386 In setting a title, the Title Board is "only obligated to fairly summarize the central points of a proposed measure, and need not refer to every effect that the measure may have on the current statutory scheme." In re Title, Ballot Title & Submission Clause, & Summary for Petition on Campaign & Political Fin., 877 P.2d 811, 815 (Colo.1994). The current title for Initiative # 90 includes the central feature of the initiative, which is to expand local governments' authority to regulate "oil and gas development." Aithough section 2 of the initiative makes clear that "oil and gas development" includes "hydraulic fracturing," this method is but one example of the type of "oil and gas development" that may be regulated under this initiative. The title is not misleading simply because it omits hydraulic fracturing or other methods as examples of the types of oil and gas development that can be regulated under the initiative. See, eg., In re 2007-2008 No. 62, 184 P.8d at 60 ("While titles must be fair, clear, accurate and complete, the Title Board is not required to set out every detail of an initiative."); In re Title, Ballot Title & Submission Clause, & Summary for 1997-98 No. 62, 961 P.2d 1077, 1082 (Colo.1998) ("[Wle will not rewrite the titles or submission clause for the Board, and we will reverse the Board's action in preparing them only if they contain a material and significant omission, misstatement, or misrepresentation."); In re Title, Ballot Title & Submission Clause, & Summary for Proposed Initiative on Educ. Tax Refund, 828 P.2d 1858, 1355 (Colo.1991) ("The board is not required to describe every nuance and feature of the proposed measure."). The reference in the title to "oil and gas development" is sufficient to describe the scope of the initiative. We thus hold that the title set — 165 — by the Title Board for Initiative #90 satisfies the clear title requirement because it is not misleading and it fairly reflects the central purpose of the initiative. IV. Conclusion 'I 37 We hold that the Proposed Initiatives contain a single subject-the expansion of local governments' authority to enact laws regulating oil and gas development that are more restrictive than state law. We also hold that the titles set by the Title Board satisfy the clear title requirement because they fairly reflect the purpose of the initiatives and are not misleading. We therefore affirm the actions of the Title Board. CHIEF JUSTICE RICE dissents, and JUSTICE HOBBS joins in the dissent. APPENDIX A-Initiative # 90 and Titles Be it Emacted by the People of the State of Colorado: SECTION 1. In the constitution of the state of Colorado, add article XXX as follows: ARTICLE XXX Local Government Control of Oil and Gas Development Including Hydraulic Fracturing Section 1. Purposes and findings. THE PEOPLE OF THE STATE OF COLORADO FIND AND DECLARE: a. THAT THE CONDUCT OF OIL AND GAS DEVELOPMENT, INCLUDING THE USE OF HYDRAULIC FRACTURING, MAY IMPACT PUBLIC HEALTH, SAFETY, WELFARE, AND THE ENVIRONMENT; b. THAT ANY IMPACTS ARE EXPERIENCED MOST DIRECTLY IN LOCAL COMMUNITIES; AND c. THAT TO PRESERVE THE PUB-LICS HEALTH, SAFETY, WELFARE, AND THE ENVIRONMENT, THE PEOPLE DESIRE TO EXPAND THE AUTHORITY OF LOCAL GOVERNMENTS BY VESTING IN THEM THE RIGHT TO REGULATE OIL AND GAS DEVELOPMENT. Section 2. Grant of authority. THE PEOPLE OF THE STATE OF COLORADO HEREBY VEST THE RIGHT, POWER, AND AUTHORITY IN LOCAL GOVERNMENTS TO REGULATE OIL AND GAS DEVELOPMENT WITHIN THEIR GEOGRAPHIC BORDERS; THIS RIGHT, POWER, AND AUTHORITY INCLUDES THE ABILITY TO ENACT PROHIBITIONS OR LIMITS ON OIL AND GAS DEVELOPMENT, INCLUDING HYDRAULIC FRACTURING. LOCAL LAWS, REGULATIONS, ORDINANCES, OR CHARTER PROVISIONS MAY BE MORE RESTRICTIVE AND PROTECTIVE OF A COMMUNITYS HEALTH, SAFETY, WELFARE, AND ENVIRONMENT THAN LAWS THAT MAY BE ENACTED BY THE GENERAL ASSEMBLY OR REGULATIONS ADOPTED BY EXECUTIVE AGENCIES OF THE STATE. FOR PURPOSES OF THIS ARTICLE, "OIL AND GAS DEVELOPMENT" MEANS EXPLORATION FOR AND PRODUCTION OF COLORADO'S OIL, GAS, OTHER GASEOUS AND LIQUID HYDROCARBONS, AND CARBON DIOXIDE. THE PROVISIONS OF THIS ARTICLE APPLY TO EVERY COLORADO CITY, TOWN, COUNTY, AND CITY AND COUNTY, NOTWITHSTANDING ANY PROVISION OF ARTICLE XX, OR SECTION 16 OF ARTICLE XIV, OF THE COLORADO CONSTITUTION. Section 3. Not a taking. ANY LAW, REGULATION, PROHIBITION, OR LIMIT ENACTED PURSUANT TO THIS ARTICLE IS NOT A TAKING OF PRIVATE PROPERTY AND DOES NOT REQUIRE THE PAYMENT OF JUST COMPENSATION PURSUANT TO SECTIONS 14 AND 15 OF ARTICLE II OF THE COLORADO CONSTITUTION. Section 4. Self executing, severability, conflicting provisions. ALL PROVISIONS OF THIS ARTICLE ARE SELF EXECUTING, ARE SEVERABLE, AND SUPERSEDE CONFLICTING STATE AND LOCAL LAWS AND REGULATIONS. — 166 — LAWS AND REGULATIONS MAY BE ENACTED TO FACILITATE THE OPERATION OF THIS ARTICLE, BUT IN NO WAY LIMITING OR RESTRICTING THE PROVISIONS OF THIS ARTICLE OR THE POWERS AND RIGHTS HEREIN GRANTED. IF ANY LOCAL LAW, REGULATION, ORDINANCE, OR CHARTER PROVISION ENACTED OR ADOPTED PURSUANT TO THIS ARTICLE CONFLICTS WITH A STATE LAW OR REGULATION, THE MORE RESTRICTIVE AND PROTECTIVE LAW OR REGULATION GOVERNS. Ballot Title Setting Board Proposed Initiative 2013-2014 # 90 The title as designated and fixed by the Board is as follows: An amendment to the Colorado constitution concerning local government regulation of oil and gas development, and, in connection therewith, increasing local government authority to prohibit or limit oil and gas development; authorizing local laws and regulations that are more restrictive and protective of a community's health, safety, welfare, and environment than state law; declaring that if state or local laws and regulations conflict the more restrictive law or regulation governs; and specifying that such local laws and regulations are not a taking of private property requiring compensation under the Colorado constitution. The ballot title and submission clause as designated and fixed by the Board is as follows: Shall there be an amendment to the Colorado constitution concerning local government regulation of oil and gas development, and, in connection therewith, increasing local government authority to prohibit or limit oil and gas development; authorizing local laws and regulations that are more restrictive and protective of a community's health, safety, welfare, and environment than state law; declaring that if state or local laws and regulations conflict the more restrictive law or regulation governs; and specifying that such local laws and regulations are not a taking of private property requiring compensation under the Colorado constitution? APPENDIX B-Initiative # 98 and Titles Be it Enacted by the People of the State of Colorado: SECTION 1. In the constitution of the state of Colorado, add article XXX as follows: ARTICLE XXX Local Government Control of Oil and Gas Development Including Hydraulic Fracturing Section 1. Purposes and findings. THE PEOPLE OF THE STATE OF COLORADO FIND AND DECLARE: a. THAT THE CONDUCT OF OIL AND GAS DEVELOPMENT, INCLUDING THE USE OF HYDRAULIC FRACTURING, MAY IMPACT PUBLIC HEALTH, SAFETY, WELFARE, AND THE ENVIRONMENT; b. THAT ANY IMPACTS ARE EXPERIENCED MOST DIRECTLY IN LOCAL COMMUNITIES; c. THAT THE CITIZENS OF LOCAL COMMUNITIES HAVE HISTORICALLY RELIED UPON LOCAL GOVERNMENTS TO REGULATE LOCAL LAND USES AND TO MINIMIZE POTENTIAL LAND USE CONFLICTS BETWEEN INDUSTRIAL DEVELOPMENT AND RESIDENTIAL DEVELOPMENT; AND d. THAT TO PRESERVE THE PUB-LICS HEALTH, SAFETY, WEL FARE, AND THE ENVIRONMENT, THE PEOPLE DESIRE TO EXPAND THE AUTHORITY OF LOCAL GOVERNMENTS BY VESTING IN THEM THE RIGHT TO REGULATE OIL AND GAS DEVELOPMENT. Section 2. Grant of authority. THE PEOPLE OF THE STATE OF COLORADO HEREBY VEST THE RIGHT, POWER, AND AUTHORITY IN LOCAL GOVERNMENTS TO REGULATE OIL AND GAS DEVELOPMENT WITHIN THEIR GEOGRAPHIC BORDERS; THIS RIGHT, — 167 — POWER, AND AUTHORITY INCLUDES THE ABILITY TO ENACT LIMITS ON OIL AND GAS DEVELOPMENT, INCLUDING HYDRAULIC FRACTURING, LOCAL LAWS, REGULATIONS, ORDINANCES, OR CHARTER PROVISIONS MAY BE MORE RESTRICTIVE AND PROTECTIVE OF A COMMUNITYS HEALTH, SAFETY, WELFARE, AND ENVIRONMENT THAN LAWS THAT MAY BE ENACTED BY THE GENERAL ASSEMBLY OR REGULATIONS ADOPTED BY EXECUTIVE AGENCIES OF THE STATE. FOR PURPOSES OF THIS ARTICLE, "OIL AND GAS DEVELOPMENT" MEANS EXPLORATION FOR AND PRODUCTION OF COLORADO OIL, GAS, OTHER GASEOUS AND LIQUID HYDROCARBONS, AND CARBON DIOXIDE. THE PROVISIONS OF THIS ARTICLE APPLY TO EVERY COLORADO CITY, TOWN, COUNTY, AND CITY AND COUNTY, NOTWITHSTANDING ANY PROVISION OF ARTICLE XX, OR SECTION 16 OF ARTICLE XIV, OF THE COLORADO CONSTITUTION. Section 3. Not a taking. ANY LAW, REGULATION, PROHIBITION, OR LIMIT ENACTED PURSUANT TO THIS ARTICLE IS NOT A TAKING OF PRIVATE PROPERTY AND DOES NOT REQUIRE THE PAYMENT OF JUST COMPENSATION PURSUANT TO SECTIONS 14 AND 15 OF ARTICLE II OF THE COLORADO CONSTITUTION. Section 4. Self executing, severability, conflicting provisions. ALL PROVISIONS OF THIS ARTICLE ARE SELF EXECUTING, ARE SEVERABLE, AND SUPERSEDE CONFLICTING STATE AND LOCAL LAWS AND REGULATIONS. LAWS AND REGULATIONS MAY BE ENACTED TO FACILITATE THE OPERATION OF THIS ARTICLE, BUT IN NO WAY LIMITING OR RESTRICTING THE PROVISIONS OF THIS ARTICLE OR THE POWERS AND RIGHTS HEREIN GRANTED. IF ANY LOCAL LAW, REGULATION, ORDINANCE, OR CHARTER PROVISION ENACTED OR ADOPTED PURSUANT TO THIS ARTICLE CONFLICTS WITH A STATE LAW OR REGULATION, THE MORE RESTRICTIVE AND PROTECTIVE LAW OR REGULATION GOVERNS. > Ballot Title Setting Board Proposed Initiative 2013-2014 #93 The title as designated and fixed by the Board is as follows: An amendment to the Colorado constitution concerning local government regulation of oil and gas development, and, in connection therewith, increasing local government authority to limit oil and gas development; authorizing local laws and regulations that are more restrictive and protective of a community's health, safety, welfare, and environment than state law; declaring that if state or local laws and regulations conflict the more restrictive law or regulation governs; and specifying that such local laws and regulations are not a taking of private property requiring compensation under the Colorado constitution. The ballot title and submission clause as designated and fixed by the Board is as follows:. Shall there be an amendment to the Colorado constitution concerning local government regulation of oil and gas development, and, in connection therewith, increasing local government authority to limit oil and gas development; authorizing local laws and regulations that are more restrictive and protective of a community's health, safety, welfare, and environment than state law; declaring that if state 'or local laws and regulations conflict the more restrictive law or regulation governs; and specifying that such local laws and regulations are not a taking of private property requiring compensation under the Colorado constitution? Footnotes [1] The texts and titles of Initiatives # 90 and # 93 are attached as Appendices A and B, respectively. [2] Other versions of this measure are Initiatives 2013-2014 #91 and #92. The titles for these initiatives were affirmed by this court without opinion in 14SA120 and 14S8A123, respectively. [3] Initiative # 93 also contains section 1(c), which states that "the citizens of local communities have historically relied upon local governments to regulate local land uses and to minimize potential land use conflicts between industrial development and residential development." Initiative #90 does not include this language. [4] Petitioners make no claim here, nor did they before the Title Board, that the titles for the Proposed Initiatives fail to provide a clear understanding of the effect of a "yes/for" or "no/ against" vote. Cf. In re Proposed Ballot Initiative on Parental Rights, 913 P.2d 1127, 1130 (Colo. 1996) (refusing to address issue raised by Petitioners that was not raised before the Title Board). [5] In the alternative, Petitioners argue that the Title Board lacked jurisdiction to consider whether or not "prohibit" should be included in the title for Initiative #93 and the Title Board erred in removing "prohibit" from the title because Proponents did not file a motion for rehearing raising this issue. However, Proponents orally raised the issue before the Title Board at the rehearing. Because the Title Board addressed this issue at the rehearing and thereafter amended the title for Initiative #93, and Petitioners raised this issue in their briefing to this court, this issue is now properly before us and we need not comment on the procedure below. [6] Although the Title Board also removed the phrase "hydraulic fracturing" from the title for Initiative #93, Proponents raise this argument only with respect to Initiative # 90.