preemption analysis in Colorado

2009"The purpose of the preemption doctrine is to establish a priority between potentially conflicting laws enacted by various levels of government." County Comm'rs v. Bowen/Edwards Assocs., 830 P.2d 1045, 1055 (Colo.1992).

2009See Bd. of County Comm'rs, La Plata County v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1055 (Colo.1992) ("The purpose of the preemption doctrine is to establish a priority between potentially conflicting laws enacted by various levels of government.").

2008"The underlying rationale of the preemption doctrine is that the Supremacy Clause invalidates state laws that "interfere with, or are contrary to, the laws of Congress!" Brubaker v. Bd. of County Comm'rs, 652 P.2d 1050 , 1054 (Colo.1982) (quoting Gibbons v. Ogden, 22 U.S. 1, 211 , 6 L.Ed. 23, 73 (1824)).

2008"The underlying rationale of the preemption doctrine is that the Supremacy Clause invalidates state laws that "interfere with, or are contrary to, the laws of Congress!" Brubaker v. Bd. of County Comm'rs, 652 P.2d 1050 , 1054 (Colo.1982) (quoting Gibbons v. Ogden, 22 U.S. 1, 211 , 6 L.Ed. 23, 73 (1824)).

2016But “an opposing party who fails to object to an untimely affirmative defense and instead chooses to litigate the merits of the defense in a summary judgment proceeding cannot raise a timeliness objection after the trial court has ruled on the summary judgment motion.” GSS Props., LLC, 169 P.3d at 679-80 . ¶ 42 If a preemption defense concerns the choice of law to be applied by the trial court, and not whether the trial court has jurisdiction to hear the parties’ dispute, the defense can be waived.

2009See Town of Carbondale v. GSS Prop., LLC, 169 P.3d 675, 682 (Colo.2007) ("Because a preemption defense based on choice of law is directed to the substance of the applicable law, not to the appropriateness of the judicial forum, ... a preemption defense is waivable if it is not timely raised."); Colorado Permamente Med.

2025This alteration of the typical ordinary preemption analysis (from preemption of state law to authorization of state law) makes sense because the presumption that a state-law cause of action is not preempted is only warranted in "a field which the [s]tates have traditionally occupied." Buckman Co. v. Plaintiffs' Legal Comm. , 531 U.S. 341, 347 (2001) (quoting Rice , 331 U.S. at 230 ). ¶100 In arguing that the correct analysis is one of ordinary statutory preemption, the majority points to a sentence from AEP : "In light of our holding that the [CAA] displaces federal common law, the availabilit

2025However, not only did the Supreme Court never actually conduct such an analysis in AEP (because the parties had not briefed the issue), id. , it seemed to use the term "preemptive effect" in a more general sense than the majority perceives, i.e., merely to make the unremarkable observation that the CAA, not federal common law, would determine the availability of state-law claims. ¶101 The Supreme Court in Ouellette used the idea of preemption in a similarly general sense.

2025See Honolulu , 537 P.3d at 1199 ("Simply put, displaced federal common law plays no part in this court's preemption analysis.

2025Had it done so, it would have had no need to conduct the extensive preemption analysis that followed its statement. ¶55 In City of New York , 993 F.3d at 99 , the Second Circuit opined that state common law tort claims similar to those at issue here were preempted because they would have been governed by the federal common law and "'resort[ing] to state law' on a question previously governed by federal common law is permissible only to the extent 'authorize[d]' by federal statute." (Alterations in original) (quoting Milwaukee III , 731 F.2d at 411 .) As the Hawai'i Supreme Court stated in Hono

2025This alteration of the typical ordinary preemption analysis (from preemption of state law to authorization of state law) makes sense because the presumption that a state-law cause of action is not preempted is only warranted in "a field which the [s]tates have traditionally occupied." Buckman Co. v. Plaintiffs' Legal Comm. , 531 U.S. 341, 347 (2001) (quoting Rice , 331 U.S. at 230 ). ¶100 In arguing that the correct analysis is one of ordinary statutory preemption, the majority points to a sentence from AEP : "In light of our holding that the [CAA] displaces federal common law, the availabilit

2025City of Oakland , 969 F.3d at 901, 907-08 ; see, e.g. , Rhode Island v. Shell Oil Prods.

2025See, e.g. , City of Oakland , 969 F.3d at 907 n.6 ("We do not address whether [federal] interests may give rise to an affirmative federal defense because such a defense is not grounds for federal jurisdiction."). ¶105 Accordingly, federal case law does not support the majority's application of an ordinary preemption analysis that treats historical federal common law as though it never existed. [3] In my view, the majority errs in asking whether the CAA preempts Boulder's state-law claims instead of whether the CAA affirmatively authorizes those claims.

2018See Fuentes-Espinoza v. People, 2017 CO 98, ¶ 19 . ¶ 47 Federal preemption is a question of law subject to de novo review.

2013See, e.g., Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 , 367, 120 S.Ct. 2288 , 147 L.Ed.2d 352 (2000) (state law "penalizes some private action that the federal Act (as administered by the President) may allow"); Geier v. Am.

2013See, e.g., Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 , 367, 120 S.Ct. 2288 , 147 L.Ed.2d 352 (2000) (state law "penalizes some private action that the federal Act (as administered by the President) may allow"); Geier v. Am.

2012Sapp v. El Paso County Dep't of Human Services, 181 P.3d 1179, 1184 (Colo.App.2008); see also Sanchez-Llamas v. Oregon, 548 U.S. 331, 346 , 126 S.Ct. 2669 , 165 L.Ed.2d 557 (2006) (holding that a treaty binds the states under the Supremacy Clause and that the states must recognize the force of the treaty when adjudicating the rights of litigants). ¶ 25 The underlying rationale of the preemption doctrine is that the Supremacy Clause invalidates state laws that interfere with, or are contrary to, the laws of Congress.

2012Sapp v. El Paso County Dep't of Human Services, 181 P.3d 1179, 1184 (Colo.App.2008); see also Sanchez-Llamas v. Oregon, 548 U.S. 331, 346 , 126 S.Ct. 2669 , 165 L.Ed.2d 557 (2006) (holding that a treaty binds the states under the Supremacy Clause and that the states must recognize the force of the treaty when adjudicating the rights of litigants). ¶ 25 The underlying rationale of the preemption doctrine is that the Supremacy Clause invalidates state laws that interfere with, or are contrary to, the laws of Congress.

2012Sapp v. El Paso County Dep't of Human Services, 181 P.3d 1179, 1184 (Colo.App.2008); see also Sanchez-Llamas v. Oregon, 548 U.S. 331, 346 , 126 S.Ct. 2669 , 165 L.Ed.2d 557 (2006) (holding that a treaty binds the states under the Supremacy Clause and that the states must recognize the force of the treaty when adjudicating the rights of litigants). ¶ 25 The underlying rationale of the preemption doctrine is that the Supremacy Clause invalidates state laws that interfere with, or are contrary to, the laws of Congress.

2012Sapp, 181 P.3d at 1184 .

2010Indeed, in Wolens, the Supreme Court, in ruling that state law contract claims survived the enactment of the ADA, remarked that such a conclusion "malde] sense of Congress' retention of the FAA's saving clause." 513 U.S. at 232 , 115 S.Ct. 817 ; see also Charas, 160 F.3d at 1265 ("[The savings clause ... read together with the preemption clause, evidences congressional intent to prohibit states from regulating airlines while preserving state tort remedies that already existed at common law, providing that such remedies do not significantly impact federal deregulation.").

2009Group, P.C. v. Evans, 926 P.2d 1218, 1228 (Colo.1996) (failure to raise preemption at trial or on appeal acts as a waiver).

2009The majority relies heavily upon our decision in Voss v. Lundvall Bros., Inc., 830 P.2d 1061, 1068 (Colo.1992), in which we held that "the state's interest in efficient oil and gas development and production throughout the state, as manifested in the Oil and Gas Conservation Act, is sufficiently dominant to override a home-rule city's imposition of a total ban on [drilling]." We observed that the Home-Rule Amendment, Colo. Const. art.

2009The majority relies heavily upon our decision in Voss v. Lundvall Bros., Inc., 830 P.2d 1061, 1068 (Colo.1992), in which we held that "the state's interest in efficient oil and gas development and production throughout the state, as manifested in the Oil and Gas Conservation Act, is sufficiently dominant to override a home-rule city's imposition of a total ban on [drilling]." We observed that the Home-Rule Amendment, Colo. Const. art.

2009Express and implied preemption are "primarily matters of statutory interpretation." Town of Carbondale v. GSS Props., LLC, 169 P.3d 675, 682 (Colo.2007); cf. Middleton v. Hartman, 45 P.3d 721, 731 (Colo.2002).

2009Express and implied preemption are "primarily matters of statutory interpretation." Town of Carbondale v. GSS Props., LLC, 169 P.3d 675, 682 (Colo.2007); cf. Middleton v. Hartman, 45 P.3d 721, 731 (Colo.2002).