Small Town USA embodies big time fracking issues in NY Governments face challenges over free speech, land rights

The Town of Sanford, N.Y., population 2,400, sits in the Delaware River watershed in the foothills of the western Catskill region. If you want to get a close up look at the moral and legal complexity of the shale gas debate, Sanford and neighboring towns and villages to the west are a good place to start. The issues pitting neighbor against neighbor here extend beyond economics and environmentalism to broad ideological interpretations of freedom.

Conflict over what can be said or can’t be said at a town board meeting, and whether the state is interfering with landowners’ rights to extract assets from their properties embody monumental questions about Constitutional rights surfacing with the shale gas story. With New York’s moratorium on shale gas development pending an environmental review in its fifth year, these interwoven conflicts are heading to court for disentanglement.

The tension between rights to exploit resources versus rights to be protected against exploitation is a familiar theme in the extraction industry, and I will get to the latest develop on that in a minute. A fight over citizens’ rights to talk about these issues at a town meeting, on the other hand, is a unique wrinkle in the shale gas debate, at least in the town of Sanford, which is on the front line of the controversy.



As recounted in Under the Surface, Sanford is the place where Town Supervisor Dewey Decker organized landowners to form a group to collectively negotiate terms to lease land during the height of the shale gas boom in 2008. The coalition of several hundred landowners agreed to a deal with XTO Energy (now part of Exxon Mobile) to lease 50,000 acres for $110 million (plus 13.5 percent royalties). The terms made many farmers, including Decker, millionaires before a well was drilled. It also served as a wake up call to the rest of the state about the stakes being put into play with shale gas development.

Since then, Sanford has been in the middle of the controversy, owing partly to its position on the edge of the New York City watershed and partly due to the money on the table that reflects the value of natural gas deposits in both the Utica and Marcellus shales underlying the region. Activists from both local and regional anti-fracking groups have made the Town of Sanford and the broader Catskill region a strategic part of their efforts to ban high volume hydraulic fracturing and, consequently, shale gas development.

In September, members of the Sanford Town Board, apparently fed up with the fracking debate, passed a resolution banning further discussion of the matter during the public comment period at town meetings. Town officials with significant financial stakes in shale gas development, meanwhile, have not been silent. Acting in the capacity of Town Supervisor (rather than landowner), Decker sent a letter to Gov. Andrew Cuomo three days before the town ban urging the state to expedite the pending health and environmental review of shale gas development, and complaining that a delay was “only empowering opponents.” Prior to that, the board passed a resolution urging the state to move forward, and rejecting calls for the town to ban fracking.

The board surely has a right to take a position, but it has put itself in a vulnerable spot with its ban on speech at town meetings. True, open meetings law allow towns certain “reasonable restrictions” to manage public comment periods. But from a journalist’s view, it will set a frightening precedent if elected officials are allowed to single out certain topics for censor, especially if those topics deal with matters of overwhelming public interest, such as shale gas development. Moreover, it’s an egregious act of bad faith when the censor targets citizens following accepted protocol in an open forum designed for their input.

Not surprisingly, the Town of Sanford speech ban is being challenged. The Natural Resources Defense Council and Catskill Citizens for Safe Energy filed a suit earlier this month asking the U.S. Court of the Northern District of New York to rule that the resolution banning fracking speech at Sanford Town meetings is a constitutional infringement because it “unlawfully bars plaintiffs’ members from speaking at Town Board meetings about a matter of substantial public interest that has generated significant political activity.” The town has until March 14 to respond to the complaint. The timing from there depends on the town's response and court's schedule, said Kate Sinding, an attorney for the NRDC.

The lawsuit against the Town of Sanford is one of many that will be playing out as various stakeholders chart new legal ground related to shale gas development. On the other side of the fence, lawyers are working on a suit on behalf of landowners, like Dewey Decker, who claim government is taking away their rights to develop natural gas under their land. As reported by Gannett’s Jon Campbell today, Dan Fitzsimmons, president of the Joint Landowners Coalition of New York, said the group is looking for four people to serve as plaintiffs in a lawsuit against the Department of Environmental Conservation. The action will argue that the state’s hold on shale gas permitting, pending the outcome of a health review with no timeline, amounts to an illegal “taking” of property rights. “The lawsuit against the state will focus on claims where the failure to grant (high-volume hydrofracking) permits has deprived landowners of all economically viable uses of their real property or interfered with reasonable investment-backed expectations,” Fitzsimmons wrote to members.

The group is represented by Binghamton attorney Scott Kurkoski, who told Campbell “we’re now recognizing that the state has no intention of ever completing the SGEIS.” Kurkoski was referring to the Supplemental Generic Environmental Impact Statement, the document that includes both the health and environmental reviews necessary to proceed. (DEC Commissioner said the review will be completed within weeks, although he would not say when or whether the state will begin issuing permits.) Kurkoski’s clients collectively own sizable parts of New York’s southern Tier that cover lucrative swaths of both the Marcellus and Utica shales. It’s where the controversy continues after four and a half years, and it will continue to keep lawyers busy into the foreseeable future.