letter to Gem County
for review/consideration June 2014
(draft letter for BOCC
June 3, 2014
State of Idaho
Office of the Attorney General
700 W. Jefferson Street, Suite 210
P.O. Box 83720
Boise, Idaho 83720-0010
Re: Request for
Legal Clarification – Idaho Statute 47-317
Dear Honorable Lawrence
Since passage of HB464
by the Idaho Legislature and being identified as an Idaho county with
potential for natural gas exploration activities, Gem County and many
of our citizens have cumulatively invested hundreds of hours in the
research and drafting of a Zoning Ordinance Amendment to regulate oil
and gas extraction. In January 2014, we formed a 7-member committee
comprised of Zoning Commission members, interested citizens and
industry representatives to draft a local ordinance in compliance with
Idaho Statute 47-317. Since that time, the committee has held five (5)
meetings and will continue to meet at least monthly until a draft
ordinance is completed and ready to present at public hearings.
One of the underlying
legal questions that we elected officials and the oil and gas
committee routinely face pertains to the relationship of the Local
Land Use Planning Act (Title 67, Chapter 65) to HB464. The bill was
unequivocal about the ability of industry to explore and extract
resources through the State of Idaho’s permit process with limited
local jurisdiction control. We understand that. However, there remains
a question in our minds about the degree and scope of local zoning and
other county regulation that can be applied through the administrative
process granted under Section 47-317(10)(b).
47-317(9), Idaho Code, states the legislature’s intent is to “occupy
the field of the regulation of oil and gas exploration and production
with the limited exception of the exercise of planning and zoning
authority granted cities and counties pursuant to chapter 65, title
67, Idaho Code.” Also, Section 47-317(10), Idaho Code, recognizes “the
responsibility of local governments to protect the public health,
safety and welfare.” Finally, Section 47-317(10)(b) notes that “. . .
extraction may be subject to reasonable local ordinance provisions,
not repugnant to law, which protect public health, public safety,
public order or which prevent harm to public infrastructure or
degradation of the value, use and enjoyment of private property.”
While our committee is
using the model oil and gas ordinance distributed through the Idaho
Association of Counties (which attempted to address and anticipate
some of these issues in HB464), questions about the legal parameters
continue to arise as they deal with public road impacts, noise
controls, well setbacks and similar land use topics. In this light, we
are requesting your office provide a legal opinion on the following:
1. Does HB464
alter or invalidate your January opinion that, "The OGCA does not
‘occupy the field’ of oil and gas regulation to the extent that
preemption of all local land use planning ordinances is implied?” And
if so, how is it altered?
2. Does OCGA
& HB464 "protect public health and welfare" to the extent that LLUPA
and counties are able provide to its citizens?
county ordinance(s), as authorized by §67-6518, impose higher
standards than are required by other statutes regarding the promotion
of health, safety and general welfare to protect property rights and
ensure the economy of the state is protected, etc, do the OGCA
statutes take precedence?
4. Does HB464
and OGCA interfere and prevent counties from imposing higher standards
to protect “the health, safety and general welfare of the people in
the state of Idaho“?
Thank you in advance
for your response. Please do not hesitate to contact any of us or Mr.
Dick Linville, Prosecuting Attorney.
Carlos Bilbao, Chair
Mark Rekow, Commissioner Lan Smith,
(submitted by Joe Morton)