As part of the on-going implosion of the Law Farce of Tom West, an appeal has been filed on the farce majeure (which means ‘major farce’ in Latin) case, whereby oil and gas companies are claiming that their leases are still in effect because New York state’s de facto moratorium on fracking has kept them from fracking the living daylights out of the leases. There are just a few fundamental fracking factual problems with their arguments, to wit:
1. There is no moratorium on fracking in New York State. (Surprise !) The “moratorium” is only on fracks over a certain number of gallons. A well could be fracked below that amount with slick water, or with propane. Or with any amount of compressed air or nitrogen – all of which have been used successfully to frack wells. Oil and gas wells are drilled every day in New York – by high class frackers like Johnny Hole Co.
Wells have been drilled and fracked into shale – Carrizo did that and it leaked, and they left the state. Gastem did that and proved where the Utica is not. So did Norse Energy, who went bust drilling gas wells in New York. But the operators claiming farce majeure never even bothered to drill a well. They didn’t even bother to apply for a permit to drill.
2. There is no moratorium on drilling a horizontal well thru shale in New York State. (Still surprised ?) There is no moratorium on drilling horizontal wells. An operator could drill one under Central Park from Lincoln Center.
3. The operators never bothered to file for a drilling permit on the leases in question. Courts have held in other states (to my complete astonishment) that merely filing for a drilling permit application can hold the lease. But the New York plaintiffs never actually bothered to file an application to drill a well. The only thing they did was call Tom West to defend their bogus farce majeure claim.
Other operators have filed HVHF shale gas well permit applications – and are in the queue to drill and frack shale gas wells – even next to trout streams in the Catskills. But the operators bringing the farce majeure claimed couldn’t be bothered to even apply for a permit. Why do that when you can just hire that frack-up Tom West ? (The phrase “not ripe” comes to mind)
Irene Weiser, “The Irene” (the tiara is implied) sent me this notice of appeal, here’s a copy of the appeal wherein the Law Farce of Tom West prepares to go 0-13 as the Losingest Fracking Lawyer in America. West is defending the frackers in this against the interests of his other clients the Disjointed Landowners Coalition. Giving new meaning to the term Frack Ho.
2nd Circ. Asks Top NY Court To Examine Fracking Leases
If such an event did occur, the Second Circuit also wants to know if that would allow industry to extend the leases under another part of the contracts called the habendum clause.
Thomas S. West, who represents the industry, said Friday that the decision to push the case to Court of Appeals was surprising “given the fact that the case relates to straightforward oil and gas lease language.” (Which says if the operator doesn’t do anything, they lose the lease)
“We have some concern whether the New York Court of Appeals will entertain the first certified question, which is inherently factual in nature. Given the limits on jurisdiction of the New York Court of Appeals relative to factual issues, they may decline certification. That being said, we look forward to getting whatever guidance the New York Court of Appeals is willing to provide,” West said. (Meaning the Supremes will remand it to a trial court – where it will get tossed – again – on summary judgement, since the plaintiffs failed to do anything on the lease – other than claim farce majeure. JLN)
He added that “when parties agree that drilling delays should extend their lease, the courts should enforce that expressed intention.” (The only ‘drilling delay’ here is that the drillers delayed to drill. Or file a permit to drill. JLN)
The landowners are likely motivated to exit the contracts because it’s widely believed they could get better returns by entering new deals because of rising natural gas prices.
The leaseholders are represented by Robert R. Jones and Peter H. Bouman of Coughlin & Gerhart LLP.
The energy companies are represented by Thomas S. West of the West Law Firm PLLC.
The case is Beardslee v. Inflection Energy, case number 12‐4897, in the U.S. Court of Appeals for the Second Circuit.
–Editing by Andrew Park.