Proposed Colorado Legislation Would Modify the Reasonable Accommodation Doctrine

Colorado House Bill 16-1310 was introduced on March 2, 2016, by State Senator Morgan Carroll (D) and State Representative Joseph Anthony Salazar (D). Under current Colorado law, to prevail on a claim against an oil and gas operator, the surface owner must present evidence that the operator’s use of the surface “materially interfered” with the surface owner’s use of the surface. Colo. Rev. Stat. § 34-60-127(3)(a). The proposed legislation, however, provides that an operator is strictly liable (i.e. liable without proving fault) if the operator’s oil and gas operations (including a hydraulic fracturing treatment or reinjection operation) cause an earthquake that damages real or personal property or injures an individual. Under the bill, the plaintiff establishes a prima facie case of causation if the plaintiff shows that (1) an earthquake has occurred; (2) the earthquake damaged the plaintiff’s property or injured the plaintiff; and (3) the oil and gas operations occurred within an area that has been determined to have experienced induced seismicity by a study of induced seismicity that was independently peer-reviewed.

The proposed legislation also expands the pool of potential claimants. The current law provides a cause of action to the surface owner, while the proposed bill provides that if the liability arises from an earthquake as described above, then the owner of the property or the injured person would have a cause of action.

Currently, an action under the statute must be commenced within one year of the date of the alleged violation. Colo. Rev. Stat. § 34-60-115. The bill provides that a plaintiff would have five years after discovery of the damages or injury to file an action pursuant to this statute.

The introduction of strict liability is a substantial change to the reasonable accommodation doctrine in Colorado. The full text and status of House Bill 16-1310 may be found at: https://www.billtrack50.com/BillDetail/723088