Lenape Resources has made good on their threat to sue the DEC. They just don’t say why exactly. Nor is it clear from reading their complaint. Plus they are claiming damages for voluntarily turning off their own wells. (Why didn’t I ever think of that when gas prices were down ?) And damages for all the money they might have made prospecting for dry shale gas at the fringe of the Marcellus and Utica, if they had new permits to do so – from the DEC – who they just sued. Makes sense, right ? As a fracking publicity stunt. Lenape’s attorney, Michael Joy, who is neither a real estate nor a land use lawyer, has evidently not bothered to read the Dryden, Middlefield, or Binghamton decisions (which are not even reference in his complaint). Or New York real estate law on regulatory takings claims. Or understand the purpose of a moratorium on new wells, which the whole state has been under. You know, real estate and land use law that might be material to the lawsuit. Unless of course the lawsuit is a fracking publicity stunt. From a lawyer that was on the “advisory board” of the infamous Buffalo Shale Shamstitute. Here is Lenape’s lawyer Michael Joy on the demise of the Shale Shamstitute, after the Trustees had shut the hoax down. Dissembling starts at 42:30.
When the law is not on your side, argue the facts. When the facts are not on your side, argue the law. When neither the facts nor the law are on your side, throw some poop together for a fracking publicity stunt.
1. Lenape voluntarily shut in their own existing vertical gas wells in protest of a town moratorium on new gas wells, enacted while there was a state-wide moratorium on shale gas wells, and while all gas well regulations were under-going an update by the state. Those existing wells are “grandfathered” land uses – which were not subject to a moratorium on new wells. The town did not force Lenape to shut the wells in, Lenape did so out of spite, then went on the talk show circuit to boast about it – and came up with some hair-brained excuses as to why they did it.
2. Lenape then threatened to sue the DEC for not “preventing” the town from enacting a moratorium, which is entirely outside of the DEC’s purview – unless it involves a dispute over a new well permit- which Lenape does not have. Had Lenape have filled for a new well permit, the DEC would take local land use ordinances into consideration before it issues the new permit. Lenape filed after the DEC has said publicly it would let the courts decide on Home Rule as applied to gas wells – since that is where the issue now lies – with the courts – not the DEC .
“This issue is before the courts and we will let that process progress,” DEC spokeswoman Emily DeSantis said Thursday in response to a question about the Lenape lawsuit.
The DEC’s lawyers will issue a blanket denial, since, as a regulatory agency, they do not meddle in local land use issues – and will not do so while the matter is under judicial review. Suing the DEC will not change that, since the adjudication of the matter is up to the courts. Even had the DEC intervened, it would have been in the context of issuing a new permit to Lenape – not opining on a local land use law. Naming the DEC as a defendant is 100% publicity stunt
3. Leanape has sued the town over some of the same issues that have already been found in favor of towns in Dryden, Middlefield and Binghamton. So at best that is redundant, and at worse, a bit frivolous – the issue is already in front of the appellate court. So this claim reads as a publicity stunt.
4. Lenape also alleges that the town ordinance was not properly enacted. If it was properly enacted, that claim will fail. If it was not properly enacted, the town can go back and do it right. If the ordinance is deemed a properly enacted moratorium – done to enable the town to revise its comprehensive plan – then Lenape’s claim is probably frivolous. Since properly enacted moratoriums are lawful – without a revised land plan. Kind of like a statewide moratorium to update the regulations. If the ordinance was properly enacted, Lenape’s lawsuits fails.
If the court finds that the moratorium was a land use ordinance, then the court will have to decide whether it was properly enacted. Doing a land use ordinance right in the first place is strongly advised – start with a comprehensive plan, dutifully amended, then a lawfully enacted or amended land use ordinance. Start with a good land planner. Who can amend or make a comprehensive plan – in conjunction with a good land use attorney.
5. Lenape is also claiming that they have been damaged – but for what ? Lenape turned its own wells off – the town did not order them to. And there is no indication that producing dry shale gas in that location would be economic under current or projected conditions. Nor had Lenape applied for any new gas permits from the DEC. So any regulatory taking claim is based on either self-inflicted damage (!) or purely speculative ones. There has never been a successful takings claim involving a gas lease – anywhere – And there won’t be one here. Not even close. Lenape has no valid damage claim against the town – zero. Claiming one is pure publicity stunt.
Lenape has sued the permit-issuing agency, the DEC over nothing – there is no actual claim spelled out in the lawsuit against the DEC, nor are any damages claimed. They claimed they’ve been damaged – for turning off their own wells. Nothing more. Suppose that all makes sense. As a fracking publicity stunt.