Just when you thought the Fracking Fairy Tale of Shale Gas in New York could not get much weirder – landowner fracking-wannabes have now put out a cut ‘n paste draft of a “lawsuit” against the Governor of New York, the DEC, the DOH, and All That is Holy alleging a “takings” of property because their John Doe plaintiffs say that the DEC has supposedly denied them the right to frack themselves silly, despite the fact that none of them either bothered to apply for a drilling permit on their property – before or after the de facto moratorium for one narrowly defined type of fracking went into effect.
The Joint Landowners Coalition of Central New York – the JLCNY (pronounced “JLCNY”) has sketched out a skeletal pleading without one named plaintiff in its Fracking Publicity Stunt against the state of New York. Their Shale Shyster will fill in the blanks to walk the papers over to the courthouse. As soon as they find the biggest fracking sucker in the Southern Tier to pay the Shale Shyster.
No plaintiff, no takings case, no legal precedents or takings case law to stand on, but they do a have a lawyer that needs to be paid. So that’s a start, right ? And all this is supposed to endear the landowners to the AG, the Governor and the DEC. Slick move, Jethro.
A draft lawsuit from a pro-drilling landowners group claims Gov. Andrew Cuomo has arbitrarily delayed a decision on hydraulic fracturing for no “valid, rational or legally defensible reason.”In a newsletter sent to its members Tuesday, the Joint Landowners Coalition of New York sent out the lawsuit it intends to file against the state, Cuomo and the commissioners of the Health and Environmental Conservation departments. But the group is trying to raise additional money to help fund the challenge before it sues, according to the letter.
In addition to the lack of the filing fees, a few rather glaring shortcomings pop out :
1. They have no plaintiff that can prove a takings – at least none that they will actually identified. The Shale Shyster has not even been identified. They are shopping this vapor suit to raise money.
2. They have no actual claims – because they would have to establish the value of what they have hypothetically “taken ” And that is impossible to do on speculative shale gas wells in New York. Come to the show in NYC on January 16 th and we will explain how iffy NY shale gas really is.
3. They are out of time – all of the ghost leases cited were signed before the de facto moratorium went into place in 2008. But no HVHF well permit applications were made on them.
4. None of the acreage in question would qualify for a HVHF well permit under the proposed regs – None of them meet the minimum spacing unit requirement of 640 acres. Nothing “taken” here.
5. Any of the plaintiffs could have applied for a HVHF well permit, but none of the companies they leased to evidently bothered to do so. This despite the fact that the moratorium only applies to one type of fracking = only those that use over 80,000 gallons of water. Any other well, vertical or horizontal, is allowed. So technically, they will have to prove all loss of value – based on the temporary inability to frack a horizontal shale well with more than 80,000 gallons of water. Bring on the pricey expert witnesses !
6. The de facto moratorium would not preclude an operator from filing for an HVHF well permit – and pursue the permit under individual SEQRA review.
7. The de facto moratorium is temporary, not permanent – a taking claim involves the loss of all rights permanently – not a temporary diminution of rights.
8. By suing the state, the ghost plaintiffs/ the company they leased to just went to the back of the queue to ever get a drilling permit on the property. Nice move, Jed !
9. Whoever drafted this has evidently never actually pursued a bone fide takings claim – for instance they refer to “highest and best use” when this is not the standard in a takings.
These John Doe plaintiffs cannot claim that they have been denied any rights, when no rights to drill a well have even been attempted or asserted, none of them would qualify for a permit under the spacing unit requirement, and no damages could be proven on a wildcat shale gas well. Other than that, good to go to the news media ! The legal phrase “Not ripe” comes to mind. . . As does “publicity stunt by a shale shyster trying to shake down clueless landowners”
(Full Disclosure : As a real estate developer, I won a $16M takings claim against a town, only to have it overturned on appeal. Buy me a 4 pack of Ommegang and I will tell you about it sometime while choking back sobs.)
|Dear Friends, Coalition Leaders, Landowners, and Natural Gas Supporters,I am pleased to report that we have completed the complaint against New York for its failure to issue the SGEIS governing high volume hydraulic fracturing.
The complaint can be viewed opening the linked PDF file here or by visiting the JLCNY Landowner Defense Lawsuit Complaint webpage (http://www.jlcny.org/site/
Our legal team has spent over 300 hours preparing the complaint. Their work included interviewing over a hundred potential plaintiffs, reviewing well permits and applications, researching legal theories, describing the half decade history of the State’s inaction, collecting supporting evidence and consulting with national experts.The complaint contains several legal theories giving landowners the best opportunity for success.
Takings claims are brought under the 5th Amendment of the U.S. Constitution and Article 1, § 7 of the New York State Constitution.