Wednesday, January 8, 2014

Trespassing case tests driller’s control over leased land Activist banned from parks, schools, stores w/ Cabot lease

Vera Scroggins in front of a drilling rig in Dimock Township
PHOTO JAMES PITARRESI
After being charged with trespassing, anti-fracking Vera Scroggins has been banished from land leased by Cabot Oil & Gas. That’s no small deal. The Texas drilling company has leases on more than 200,000 acres -- nearly 40 percent -- of Susquehanna County where Scroggins lives, including rights to property of friends, neighbors, stores, parks and schools.

The Cabot v. Scroggins trespassing case might have been relegated to a journalistic footnote in a national conflict over shale gas development and high volume hydraulic fracturing. It has long been standing practice (and common sense) for companies to restrict access to operations where crews are using heavy equipment and hazardous chemicals under high pressure to drill wells and fracture bedrock a mile deep in the ground.

Scroggins admittedly crossed into designated work areas on occasion, but there were no signs denoting trespass zones, she said, and her ventures into drilling territory in each case were in good faith to openly ask questions and seek information. (Some background on this in a moment.) The remarkable and possibly groundbreaking aspect of this case, however, is not the charge or the defense, but the resulting preliminary injunction the Susquehanna Court of Common Pleas issued on October 21, 2013. Pending trial of the case this spring, the order forbids Scroggins from setting foot on land owned or leased by Cabot, “including but not limited to” well sites, well pads, and access roads. That language, interpreted by Scroggins lawyer Gerald Kinchy, in effect forbids Scroggins from going to certain school grounds, her auto mechanic of 23 years, many other businesses, the county jail, and homes of dozens of friends, among other places. Doing so puts her at risk of contempt of court. (See the full order, embedded below.)

Cabot’s action raises the broader issue of how much control energy companies have over land they lease. While mineral extraction is their stated intention, many standard leases give companies ill-defined and seemingly limitless discretion over land use. “When drilling companies lease rights to land for mineral extraction,” Kinchy said, “does that mean they have rights to exclude other people from that land, even property owners?”

Apart from the Scroggins case, that question has mostly applied to practical matters of daily extraction operations. A company such as Cabot might own rights to a large tract, but it is generally concerned about gaining or restricting access to active work areas. Conflicts might crop up over where exactly a company might build a pad, access road, or pipeline, and at what inconvenience or loss of land use to the landowner. When that happens, lease language and the respective parties’ appetite and resources for litigation come into play, with the company often in a position of leverage.

The Scroggins case breaks new ground. Issues of practicality (and enforcement) aside, it probes whether a company can legally keep a person from stepping foot on leased land outside of established work zones, including public spaces where others are allowed.

Now for some background. Cabot Oil & Gas operations have drawn numerous violations from the state and much national and international media coverage due to recurring water pollution problems in Dimock Township. The company has been a particular target for critics and activists, including Scroggins, who lives in the neighboring township of Brooklyn. (More about that here.)

In Under the Surface, I describe Scroggins this way:

 … a grandmother, amateur videographer, and advocate for many causes, including home births, home schooling, and no mandated childhood vaccinations. In 2009, she took up the cause as a watchdog against oil and gas operators who began leasing large tracts of northeast Pennsylvania to develop the Marcellus Shale. “We’re extra eyes and ears for the DEP,” she told [a community organizer]. “They don’t have enough workers and we have to pick up the slack.”  
Footage from some of Vera’s vigilante patrols in 2009 shows encounters with roughnecks and pipeline workers, some reacting with amusement or annoyance to the woman with a home video camera showing up at these remote and often inaccessible work sites and peppering them with questions. Some called her “ma’am” and briefly addressed her questions; some directed her to the foreman, who almost always asked her to leave; and some simply ignored her or walked away. These brief encounters typically punctuate long unedited footage of vacuum trucks, excavation equipment, and hay bales. Vera also taped public forums and interviews with residents … recounting their experiences with gas development. These videos she posted online, where they joined a broad and growing collection of depictions of Susquehanna County gas development by other independent media, advocates … and professional news outlets. They generally … presented aspects of drilling that lent themselves to visuals: truck traffic, derricks, flaring, fracking, and heavy machinery cutting swaths through the countryside.

Until the injunction, Vera had intensified her efforts, serving as a tour guide for parties interested in seeing and learning about drilling and fracking from a perspective other than that offered by company tours and commercials. On occasion, she has helped me locate operations in the region (viewable from  public roads.)

Cabot poses a sound argument that those venturing onto work sites without permission pose an annoyance, distraction, and/or safety threat. But Vera’s presence has become iconic of another kind of threat to the company – bad public relations and control over its image. The scope of the injunction against Scroggins invites wonder whether Cabot attorneys who crafted the language were unintentionally imprecise, or whether they are testing a strategy to eliminate their Scroggins PR headache once and for all, while sending a message to other activists.

George Stark, a company spokesman, was unavailable to answer this and other questions.





35 comments:

  1. Tom, Do you have a speaking schedule for 2014 set up?

    Thanks, Fred

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  2. Wow. This freaks me out. My opinion is that Cabot is overstepping its authority, but doing what O&G does. Pennsylvania, on the other hand, is a failed state.

    An operation like oil and gas drilling is dangerous and should have areas demarcated and restricted to qualified personnel only. Had Vera jumped a fence and entered an exclusion zone, Cabot would be in the right. Drilling is similar to infrastructure construction, where areas are zoned off and access restricted, regardless of who owns the property.

    I really don't see too much of a problem with taking videos and photos from a distance. Chatting with workers outside of work zones would be annoying to the foreman - but not at all out of the ordinary. Keeping workers from working would piss off the project manager, but he/she should be a big boy/girl and learn to deal. Dealing with "the public" during any construction activity is a normal project activity. Especially for a highly intrusive and disruptive project like oil and gas drilling, processing and transmission. Cabot should have had hired personnel to deal with land owners and neighbors. Plus, there's usually onsite security on construction projects to move pesky and annoying persons along. Kindly.

    My guess is that Pennsylvania is dirty, i.e. corrupt. The environment and natural resources departments have become contractors and consultants for oil and gas. Police, at all levels, have become private security for Oil and Gas. Cabot is doing what oil and gas companies always do. Kind of like what a bear does. The State, in this case Pennsylvania, should be acting at a minimum like an ombudsman between parties. Preferably, act as an agent for protecting the residents and landowners over oil and gas.

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    1. " Pennsylvania is dirty ,i.e. corrupt " ....Sooo True !!

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    6. Tom and other responding to him. I have deleted comments that ventured into personal character attacks, defenses, and related backlash. Not all of these comments were out of bounds, but some were – and pulling some and not others becomes a road I would rather not venture down here. I do appreciate everybody’s participation. Character, integrity, and motives of players in the shale gas story (on all sides of the issue) are sometimes of relevant public interest. But please keep it to the facts rather than value judgments.

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  4. Our rights as PA citizens should always override the rights and interests of foreign or alien corporations (foreign meaning not PA chartered and alien meaning not US based). Owners rights trump all but commonwealth rights. No one, not one person, that ever signed a gas lease ever dreamed it would mean that the lessee (the tenant) could keep private citizens off their property. These corporations have no duty to the public, by law, their sole duty is to bring profits to legally protected stockholders. And they don't even do that very well. Trusting them to be the stewards of our land for future generations to enjoy is pure folly.

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    1. Well stated. PA is a Commonwealth and Gov Corbett has ignored the laws and the will of the people!

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  5. Why have so many comments been removed? I did not get to read any of them

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  6. This WILL backfire on Cabot and the industry in general as folks have had it with the frackers taking too much liberty with the surface property in accessing the subsurface.

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  7. Seems this Blog only wants to hear pro gas comments .The true one's are deleted !! Keeps things just right for them ......RIGHT !!! .....wrong .

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  8. Of the comments that have been removed, I saw only Thomas Shepstone's comment, my own (of course), and Vera's, so I don't know what was in the remaining comments and I must admit I would have been interested in reading them. That being said, I can understand Tom's reasons for removing the comments. I think we have all seen instances on the internet in which formerly interesting and constructive conversations morphed into a long string of personal attacks, defenses against the attacks, counterattacks, and so on.

    One observation I would like to make, however, is that the lawsuit described in this blog entry could reasonably be judged to be part of a larger pattern of intimidation by the gas industry--a pattern that includes other lawsuits (like the ones brought against towns trying to ban drilling), homeowners being forced to sign non-disclosure agreements in order to get a supply of drinking water, landmen telling landowners that if they don't sign a lease their land will be fracked anyway via compulsory integration, and so on. And I would like to note that in some instances, personal attacks by the gas industry have been a part of that pattern.

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    1. Mary, fair enough. The comments that were removed after Tom Sheptone’s comment attacking Vera’s character included colorful but un-informing instances of vitriol, or responses or defenses attacking Sheptone. Not all of them crossed the line, but I eliminated the entire thread --- including Sheptone’s provocation -- because they collectively became a distraction from the discussion, at least in my mind. (In your well-chosen words they “morphed into a string of personal attacks.” I will add that It becomes a very touchy thing to remove comments and this is the first time I have done it on Shale Gas Review (aside from brazen spamming). I believe that a robust, open, and sometimes caustic debate in such matters of public interest is a healthy thing. But in this instance, I felt my decision was warranted. Thanks for understanding.

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    2. This America Freedom(TM) right here. The discourse has to be cleaner than the air, water and land. Oh well, a nicely written, insightful and bias free article should be the perfect antidote.

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  9. I'm appealing this court order with my attorney , Gerald Kinchy. This is a civil rights and landowners rights issue. I want to be able to freely visit leased friends and businesses and schools in my county and also be able to report and show what this Industry is doing to our county : it's air and water and our health....

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    1. In the blog, I see a hearing date of Jan. 2, 2014. Did that hearing occur or was it postponed?

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    2. Ed, I'm not sure of the status of the Jan. 2 hearing. Kinchy told this week that the matter is scheduled to go to trial in the spring, so the injunction is in effect.

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    3. WHY are these drillers so afraid of the TRUTH? Their crimes against the environment have all been VERA-fied and cannot be denied.

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  10. The gas industry seeks to do their deeds without a witness, they demand secrecy for the chemicals they use. they make non-disclosure deals with people who blame them for spoiling their well water. They obviously know they are doing harm and doing wrong or why hide it? Since Vera's rights as a free citizen are at risk somebody else better get out there with a camera.

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  11. The truth is, Tom, that you're not allowing relevant information about the character and nature of an individual to be told, an individual to whom you are assigning a very positive character in your description of her. You are creating an image of her intended to engender empathy and won't allow facts that might get in the way to be told.

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    1. The truth is, Shepstone, that Vera is exposing information that might negatively affect YOUR image. TRUTH matters.

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    2. "relevant information about the character"

      TF: Ad hominem again, Mr. Shepstone.

      Censorship, yes, but my "side" had a good teacher. Are you enjoying your own medicine?

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    3. Then lay out the facts for us! Tom's article didn't stir up any unnecessary emotions one way or another. I still don't know how many grandkids Vera has and if she bakes cookies for them. As usually, Tom's work was an excellent piece of journalism. I'd have preferred a cuss word ladened rambling rant, but that's me.

      There would be another side of the story to tell if:

      - There is no natural gas to heat our furnaces.

      - Mean environmentalists had bankrupted the entire oil and gas industry for not allowing hydraulic fracturing anywhere near Pennsylvania.

      - Oil and gas and the state of Pennsylvania had done preliminary and thorough environmental impact analysis with public comment and establishment subsurface and surroundings baseline conditions.

      - The United States Grandmother Political Action Committee (USGPAC) had lobby spent billions on pro environmental protection and anti fracking legislation. Beating out oil and gas lobbyists like API more than 10 to 1 in spending.

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    4. In many cases, the employment and/or investment history of commenters who have ties to the gas industry is relevant information, but it is not common to see full disclosure of such information in comments.

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    5. Tom, when is character assassination relevant in disclaiming what Vera and others expose about the negative effects and dangers of fracking? You would serve your side better by sticking to the "facts" about the gas industry that you love so much. Notice I said facts instead of that constant regurgitation of how safe it is without facts to back your statements up. With all the latest, negative information coming out over the past several months, you have a lot of damage control to concentrate on instead of character assassination.

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  12. My hearing for a permanent injunction in now for May 1st. and the hearing for the appeal is for March 24th. in Montrose at 9 am... I still do Citizen Gas Tours and go through Cabotland and keep on the road or the edge of the road and show folks what is happening to our neighborhoods the past 5 years and whether they want this industrialization in their neighborhoods. We have five other gas companies industrializing other areas of our county and I show those companies' work also from the road. I show elected officials from NY and other parts of the world, media and farmers and citizens what is developing next to homes, on school property, next to businesses and see if this type of intensive, pervasive energy development is what we really want and show them the families that are harmed with contaminated water, contaminated air and noise and traffic and the danger of having explosive gas in high pressure pipelines throughout our county. It's a very simple thing; All you have to do is look around and see if this is an acceptable way to transform communities for an energy that is finite and polluting.

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    1. Most people appreciate your due diligence, Vera. You are informing many of us about the dangers that lurk unseen, and we are thankful. Many people are fed up with these corporations who are raping us of our rights!

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  13. There has been a lot of discussion about the relevancy of Vera's character, but really, in a case in which a private company is trying to effectively bar a local citizen from setting foot in 40% of her county, aren't most people going to empathize with the citizen whether that citizen is Vera or someone else entirely? After all, if Cabot can do this to Vera, can't they do it to the rest of us too?

    What if all properties in the town had been leased except for Vera's--would Cabot be insisting that Vera remain under house arrest? If she wanted to leave, would she have to be air-lifted from her yard to avoid setting foot on leased land? Could Cabot prevent citizens from going to church or to school or to a doctor's appointment? And what about the actual owners of the leased properties--do they have a say in who can visit them, or is that all up to Cabot now?

    All citizens--not just those of us who admire Vera--should be concerned about this bizarre and frightening situation.

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  14. there are a number of landowners who are shocked and disapproving of this ruling and lawsuit and are appalled that Cabot is telling landowners who can or can not visit them. Cabot has made a big mistake with this lawsuit and opened a can of worms. Now it will be further opened in additional court hearings. Why are they making a big deal of my presence? Is it because I have been showing elected officials from NY and other countries and celebrities the horrors of industry next to homes, schools and businesses in our rural neighborhoods? I am still doing Citizen Gas Tours in the restricted areas and taking video of Cabot operations that are close to the road and have a strong, zoom lens....Cabot won't be able to shut us up forever or keep us away; They have gag orders on our residents and are hiding the harm they have done, but it continues to be revealed by me and others...

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  15. Prodigy oil and gas is accused of selling at least $463,768 in unregistered securities to a Massachusetts investor who was cold-called about investing in an oil well operation.

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