Litigation

Energy Companies | Forced Pooling | Hilcorp Energy | Industrywide Issues | Litigation | Pennsylvania | Regulation | Statewide PA | Utica Shale

Ironic: PA Enviro Court Forcing DEP to Rule on Forced Pooling
November 21, 2013November 21, 2013

A 51-year old forced pooling law in Pennsylvania that strangely does not apply to the Marcellus Shale layer, but does apply to the deeper Utica Shale layer, is being put to the test. In early October, MDN told you that Hilcorp had decided to take “the low road” and sue a landowner in Lawrence County, PA to force that landowner to allow his 14.6 acres to be drilled under using the old law (see Hilcorp Uses PA Forced Pooling Law Against Lawrence Cty Landowner).

The PA Dept. of Environmental Protection balked at invoking the old law to force the landowner and instead tossed this hot potato to the Environmental Hearing Board. The Hearing Board ruled this week that it doesn’t have jurisdiction and that the matter properly does belong back at the DEP. So what will the DEP do now?…
Read More “Ironic: PA Enviro Court Forcing DEP to Rule on Forced Pooling”
Hydraulic Fracturing | Industrywide Issues | Litigation | New York | Regulation | Statewide NY

JLCNY Landowner Lawsuit Against NY & Gov. Cuomo Ready to Go
November 14, 2013November 14, 2013

MDN recently received an email update from the Joint Landowners Coalition of New York (JLCNY)–posted below. The JLCNY reports their “takings” lawsuit against New York State, Gov. Andrew Cuomo, DEC Commissioner Joe Martens and State Health Commissioner Nirav Shah is now ready to go. Cuomo, Martens and Shah together form a cabal working against NY landowners by intentionally denying them their 5th Amendment Constitutional private property rights without just compensation. The JLCNY is ready to expose the cabal by filing this case.

According to JLCNY President, Dan Fitzsimmons, the legal team spent over 300 hours preparing the necessary court documentation, called a “complaint” in legalese (we’ve embedded a copy of the complaint below). The lawsuit will be filed on behalf of six New York landowners. The landowners are not (yet) named in the complaint, but if you read the complaint, you’ll see each one is uniquely identified–these are real people that are ready to go to court…
Read More “JLCNY Landowner Lawsuit Against NY & Gov. Cuomo Ready to Go”
Anti-Drilling/Fossil Fuel | Industrywide Issues | Litigation | Ohio | Statewide OH | Wastewater

OH Energy Co Sues 2 Anti-Drillers for Defamation – and Wins!
November 12, 2013November 12, 2013

Finally! An energy-related company in the Utica Shale with a backbone. A couple of anti-drillers thought they would get away with defaming the good name of Duck Creek Energy, a company that manufactures a road deicer and dust suppressant from processed brine water produced from oil and gas wells. Brine is not frack wastewater but naturally occurring water from the depths that has a lot of minerals it (saltier than sea water). Brine comes out long after frack wastewater has been removed. When processed, brine is perfectly safe and can be used for productive things like deicer and dust suppression on roadways. Duck Creek Energy has been manufacturing their deicer for 10 years now.

The defaming anti-drillers claimed the substance being sold by Duck Energy was leftover frack wastewater and contained dangerous chemicals and radiation. Duck Creek Energy sued them and won, shutting them up from telling the outrageous lies they had been spinning…
Read More “OH Energy Co Sues 2 Anti-Drillers for Defamation – and Wins!”
Energy Companies | Industrywide Issues | Litigation | Pennsylvania | Range Resources Corp | Washington County

PA Judge Forces Range, Contractors to Provide Chemical List
November 6, 2013November 6, 2013

Three families who live near a drill site/frack wastewater impoundment (“pond”) in Cecil Township, PA have a long-running (since May 2012) lawsuit against Range Resources claiming Range’s drilling and wastewater impoundment has contaminated their well water. The Pennsylvania Dept. of Environmental Protection (DEP) investigated and found no contamination. Even the federal EPA looked at it last year and never filed any violation notices–meaning they didn’t find anything either (see EPA Investigating Range Drill Site in Western PA).

However, the families maintain they have been harmed by toxic chemicals used during drilling, and so a judge has ordered Range and all of their subcontractors to provide a list of every conceivable chemical compound used at the site since 2009–right down to the kind of oil used in the engines of vehicles visiting the site–and she’s giving them 30 days to do it…
Read More “PA Judge Forces Range, Contractors to Provide Chemical List”
Accidents | Energy Companies | Industrywide Issues | Litigation | Lycoming County | Pennsylvania | Wastewater | XTO

PA AG Pressures Judge to Step Aside in XTO Spill Case
November 5, 2013November 5, 2013

A quick update on the political persecution being shamefully conducted by Pennsylvania’s new Attorney General Kathleen Kane against XTO Energy (see PA AG Abuses Her Authority, Files Criminal Charges Against XTO). Kane is attempting to turn a 3 year-old accidental spill into a criminal case–beyond imagination.

Kane continues to abuse her power. She has pressured the judge who would have heard the XTO case to recuse himself because he has a share/interest in a gas lease. The judge’s lease is not with XTO, but that’s not good enough for anti-drilling Kane. She wanted him gone–so he’s gone…
Read More “PA AG Pressures Judge to Step Aside in XTO Spill Case”
Industrywide Issues | Litigation | Pennsylvania | Regulation | Warren County | Wastewater

Waste Treatment, PA DEP Respond to CWA Lawsuit
October 30, 2013October 30, 2013

Yesterday MDN told you about a wastewater treatment plant in Warren, PA that has been sued by Clean Water Action with claims the plant continues to receive, process and dump frack wastewater into the Allegheny River (see CWA Sues/Accuses Waste Treatment Corp of Continued Shale Pollution). Waste Treatment Corporation’s Warren operation was supposed to have stopped that practice in May 2011. The lawsuit says it’s still happening, based on the results of tests from last year by the state Dept. of Environmental Protection (DEP).

Both Waste Treatment Corp. and the PA DEP have responded with statements addressing the CWA allegations and lawsuit. Waste Treatment says they did stop processing Marcellus Shale wastewater in 2011. The PA DEP says the agency filed its own lawsuit against Waste Treatment in September of this year. Frankly, it’s not at all clear to MDN what the real facts are in this case–yet. After reading the responses, we have more questions than answers…
Read More “Waste Treatment, PA DEP Respond to CWA Lawsuit”
Beck Energy | Energy Companies | Industrywide Issues | Lease & Royalty Payments | Litigation | Monroe County | Ohio | Utica Shale

Beck Energy Sues OH Attorneys for Lease “Interference”
October 30, 2013October 30, 2013

An interesting court case that landowners in Monroe County, OH with old (30 year-old) non-Utica gas leases will be interested in following. Beck Energy holds many of those old leases (originally signed for an average $50/acre) which allows them to drill vertically into the Clinton sandstone for natural gas. However, the old leases prevent landowners from signing new leases (at much higher signing bonuses) to allow Utica Shale drilling. Apparently some enterprising attorneys have taken up the cause by shopping (i.e. advertising) for plaintiffs and Beck is none to happy about it. Beck has filed a lawsuit against the attorneys and their law firms to stop them from making mischief with “their” leases.

After reading the details of whose done what to whom (below), it seems to MDN no one will come out of this one smelling clean…
Read More “Beck Energy Sues OH Attorneys for Lease “Interference””
Hydraulic Fracturing | Industrywide Issues | Litigation | New York | Regulation | Statewide NY

When Will We Know if NY Will See Fracking? June 2014
October 29, 2013

A question MDN is frequently asked… Q: When will the issue of fracking in New York State really and truly be decided–and by whom? A: June 2014, by the NY Court of Appeals. “Not by Gov. Cuomo?” you ask. Nope. He’ll come around, eventually. The real issue has always been whether or not entire towns can ban fracking based on the vote of 3 or 4 people who sit on a town board–a vote that denies every citizen in that town their Constitutional private property rights. Two cases now before the New York Court of Appeals will decide the issue once and for all.

Thanks to the lead attorney for one of those cases–Scott Kurkoski, attorney for the “Middlefield” case–we now have insight into how and when this will all progress from now through June of next year. It started yesterday when briefs were filed by Kurkoski (for Middlefield) and by Albany-area attorney Tom West (for the “Dryden” case) with the Court of Appeals…
Read More “When Will We Know if NY Will See Fracking? June 2014”
Health Impacts | Hydraulic Fracturing | Industrywide Issues | Litigation | Pennsylvania | Regulation | Statewide PA

PA Doctor’s Act 13 Lawsuit Tossed Out, Judge Says No “Standing”
October 28, 2013October 28, 2013

Last Wednesday a Pennsylvania federal judge ruled against a doctor who sued the state over it’s new Act 13 law (passed in 2012). The new law requires doctors to sign a confidentiality agreement before discussing chemicals workers may have been exposed to as part of the drilling (specifically fracking) process in shale drilling.

U.S. District Judge A. Richard Caputo dismissed the lawsuit filed by Dr. Alfonso Rodriguez saying he hadn’t proven he had been harmed by the law (i.e., no “standing”)…
Read More “PA Doctor’s Act 13 Lawsuit Tossed Out, Judge Says No “Standing””
Energy Companies | Forest County | Industrywide Issues | Litigation | McKean County | Minard Run Oil | Pennsylvania | Regulation | Warren County

Final Appeal? Court Says Drilling in Allegheny Natl Forest Legal
October 17, 2013

When the federal government digs in its heels and is intent on obstructing justice, it can take a long time to remedy via the courts. But (sometimes) justice does prevail in the end. We now have–hopefully–a final resolution in the ongoing series of cases known as Minard Run Oil v. United States Forest Service. We wrote about this case back in 2011, but it goes back much further, to 2009 (see Drillers Sue US Govt over Allegheny National Forest Delays). As a brief background, the federal government purchased a number of parcels of land in 1923 that became the Allegheny National Forest (ANF) in northwestern Pennsylvania. However, the government did not purchase the mineral rights under most of the land–seems that back in 1923 the government didn’t just print the money it wanted (“quantitative easing” anyone?).

Even though they don’t own the mineral rights, in 2009 the U.S. Forest Service (federal agency managing the ANF) entered into what was an illegal out of court settlement with environmentalist groups stipulating that the National Environmental Policy Act (NEPA) will govern all oil and gas drilling in the ANF. It effectively shut down any new drilling in the forest, denying private citizens the ability to benefit from their private property (mineral) rights. The drilling industry sued and the case has now gone through three appeals. The most recent appeal was heard by the federal U.S. Court of Appeals Third Circuit. The court ruled, once again, in favor of private property rights…
Read More “Final Appeal? Court Says Drilling in Allegheny Natl Forest Legal”
Energy Companies | Hess | Industrywide Issues | Jefferson County (OH) | Lease & Royalty Payments | Litigation | Ohio | Statewide OH

Hess Will Challenge OH Court Decision to End Lease
October 17, 2013October 17, 2013

A few weeks ago MDN told you about the court case Hess lost where they tried to tie up the leases for Ohio landowners beyond the initial 5-year term (see Hess Loses OH Court Case, May Owe Big Bucks to 300 Landowners). What it amounts to is that Hess doesn’t want to pay them more money. The landowners who sued and won–Stephen and Melissa Griffiths from Jefferson County, OH–received an initial $6,500 in bonus payments in 2007 for their 228 acres. If they were signing a lease today they would get something like $1.5 million! Hess didn’t drill on the property during the 5-year term called for in the lease, but instead claim some cockamamie extension in the lease terms allows them extra time before they drill. Sorry Charlie, the judge said no.

Hess is miffed and says they will “vigorously challenge” the court decision, tying up the Griffiths’ lease for perhaps another year while this works its way through yet another court…
Read More “Hess Will Challenge OH Court Decision to End Lease”
Delaware County | Hydraulic Fracturing | Industrywide Issues | Litigation | New York | Regulation | Statewide NY

When Do/Don’t Municipal Frack Bans Violate the U.S. Constitution?
October 17, 2013October 17, 2013

When do (and when don’t) municipal bans on natural gas drilling violate the U.S. Constitution? It’s a sticky question and it takes an ace legal mind to tackle this broad and complex topic. An ace attorney has done just that. MDN friend and litigator Ken Kamlet from the Binghamton law firm Hinman, Howard & Kattell (HHK) does a deep dive on the topic of when town bans violate the Constitution. This is not a theoretical exercise for Kamlet. The lawyers at HHK are currently suing (on behalf of landowners) the village of Sidney, NY (Delaware County) over a ban they passed in February 2013 (Exclusive: Sidney, NY Sued by Landowners over Fracking Moratorium).

HHK is also the law firm that sued the City of Binghamton, NY over their illegal frack moratorium and won (see NY Judge Throws Out Binghamton Fracking Moratorium). HHK knows the law, knows the Constitution, and is well-equipped to write about when bans do, and do not, violate the Constitution…
Read More “When Do/Don’t Municipal Frack Bans Violate the U.S. Constitution?”
Hydraulic Fracturing | Industrywide Issues | Litigation | Ohio | Regulation | Statewide OH

Home Rule Case Before OH Supreme Court – Background
October 14, 2013October 14, 2013

In 2004 the Ohio legislature passed a law that gives “sole and exclusive authority to regulate the permitting, location and spacing of oil and gas wells” to the Ohio Dept. of Natural Resources (ODNR). However, like Pennsylvania, New York and West Virginia, local municipalities have bridled against a law that says locals have no say in where an oil or gas well may be drilled. And like those other Marcellus/Utica states, Ohio municipalities have sued to overturn the law.

In June MDN told you the Ohio Supreme Court has accepted a case that challenges the 2004 Ohio law restricting so-called “home rule” or the right for municipalities to zone oil and gas wells (see Home Rule Case Heads to Ohio Supreme Court). With that case now under active consideration by the OH Supremes, here’s a bit more background…
Read More “Home Rule Case Before OH Supreme Court – Background”
Energy Companies | Forced Pooling | Hilcorp Energy | Industrywide Issues | Lawrence County | Litigation | Pennsylvania

Hilcorp Uses PA Forced Pooling Law Against Lawrence Cty Landowner
October 8, 2013October 8, 2013

This is not the kind of story we enjoy sharing with you. Hilcorp, a major driller in the Utica and Marcellus Shale, has decided to take what we consider “the low road” and is using a 1961 Pennsylvania law to sue a landowner to allow them to drill under their property. It’s called “forced pooling,” “compulsory integration,” and a variety of other terms. MDN does not support it. Our argument is simple: My neighbor should not have the right to tell me I can’t drill on and under my land, and I should not have the right to force it on my neighbor if they don’t want it. We believe it’s the only defensible position in the drilling debate.

Regardless, Hilcorp has moved forward with a legal action against a landowner in Lawrence County, PA who owns just 14.6 acres in a drilling unit leased by Hilcorp–and that 14.6 acres apparently prevents Hilcorp from drilling. So off to court they go…
Read More “Hilcorp Uses PA Forced Pooling Law Against Lawrence Cty Landowner”
Hydraulic Fracturing | Industrywide Issues | Litigation | New York | Regulation | Statewide NY

NY Frack Ban Cases Make (Glacial) Progress, Some Dates to Share
October 7, 2013

In August MDN told you that New York’s highest court, the Court of Appeals, would hear the twin cases of Dryden and Middlefield (see BREAKING: NY Court of Appeals will Hear Dryden/Middlefield Case). There are two things that keep shale drilling away from New York right now: (1) Gov. Andrew Cuomo’s spineless inability to take a stand and do the right thing to allow it, and (2) the Dryden/Middlefield cases. MDN believes the court cases are the more important of the two. Cuomo will come around sooner or later–he has to. However, if the court says a majority vote from a local town board can ban fracking thereby denying property rights for landowners throughout an entire township–that’s the death knell for drilling in New York. No sizable driller will gamble with hundreds of millions in lease money to see a local town simply vote to shut it all down. Too risky. (For our analysis of the New York situation, see the post: Anti-Drillers Attempt a Brave Face with NY Appeals Court Decision.)

So the Dryden/Middlefield cases are of supreme importance in the fight for property rights and to allow drilling for New York’s landowners. What’s the latest in those all-important cases? They’re moving along at the speed of a glacier–but at least we now have some dates to share…
Read More “NY Frack Ban Cases Make (Glacial) Progress, Some Dates to Share”
Anti-Drilling/Fossil Fuel | Hydraulic Fracturing | Industrywide Issues | Litigation | Ohio | Regulation | Statewide OH

Muskingum Watershed Taken to Court by Anti-Frackers (Yawn)
October 3, 2013October 3, 2013

MDN has long chronicled the Muskingum Watershed Conservancy District’s (MWCD) challenges with selling a relative thimble-full of its vast water supplies to Utica Shale drillers. Not only are they now selling water, they’ve leased a good number of acres for drilling–some of it under lakes and reservoirs. That really ticks off the eco-nuts.

Anti-frackers have thrown tantrums and have done their darnedest to stop the MWCD from allowing drilling and from selling water to frackers–for a time they even bullied them into a retreat (see Muskingum Watershed Reverses Decision to Sell Water to Drillers)–but ultimately the anti-frackers have failed. So now it’s off to court to see if they can convince a liberal judge somewhere to put the breaks on progress in Ohio…
Read More “Muskingum Watershed Taken to Court by Anti-Frackers (Yawn)”