Monday, March 24, 2014

Cabot v Scroggins = heat over land rights, speech, fracking Pa. court considers injunction to limit activist’s actions

Vera Scroggins and her lawyers (left) at the Montrose courthouse Monday
A confrontation over free speech and land rights that began inside a courthouse in Montrose, Pennsylvania this morning grew more contentious outside, as lawyers and demonstrators took their arguments to the courthouse steps and parking lot.

The hearing, in the Court of Common Pleas before Judge Kenneth Seamans, involved what degree Cabot Oil & Gas can limit activist Vera Scroggins in her attempts to videotape drilling operations and related activity. The company has faced public relations and environmental problems in Dimock township after the state Department of Environmental Protection held Cabot's operations responsible for polluting an aquifer that supplies dozens of homes in Dimock Township.

Scroggins has taped and posted hundreds of video files on You Tube showing drilling operations in Susquehanna County since 2009, including spills, clean-ups, and discharges. The videos cast operations in a way that runs counter to the industry’s portrayal as clean and safe. Scroggins has also lead tours for political action groups, academics, journalists, and other interested parties visiting the area to learn more about drilling and the controversial practice of high volume hydraulic fracturing to stimulate the gas wells.

Scroggins’ vantage point was mostly from public roads by drilling sites, although Cabot claims that she also trespassed onto private land under lease by the Texas drilling company, posing a safety risk to herself and others.

One basic question before the court was whether Scroggins willfully and habitually trespassed. Her lawyers said that drilling zones were not always clearly marked with no trespassing signs, that Scroggins' ventures into drilling territory in each case were in good faith to openly ask questions and seek information, and that she always complied if asked to leave.

Two other questions, however, make the case a potential landmark test of a company’s control over property it leases but does not own. The first question is whether Cabot can legally keep Vera away from leased land, including access roads, with a buffer zone that extends into adjoining public roads and right-of-ways. The second question is whether a party that owns sub-surface rights but not surface rights can legally act as “gatekeepers” for who can and cannot come onto the land. Can a mineral rights lessee forbid a person who has been invited onto the land by the property owner to view operations?

Seamans granted the injunction in October, after Vera appeared in court without an attorney to answer the trespass charge.  Since then, the case has generated interest and outrage among activists who say Cabot is restricting limits on Scroggins’s constitutional right to report what is happening in her community, and its actions have a chilling effect on others. Attorneys Scott Michelman, of the Public Citizen Litigation Group in Washington, D.C. and Gerald Kinchey, in private practice in Sayre, Pa., have taken up Scroggins’ case pro bono.

Ostensibly, the injunction was designed to keep Scroggins away from work areas for safety reasons. But technically, the language 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 phrasing is what makes the case a possible watershed. 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, schools and health care providers. Obeying the injunction has required both active research to find out what land is leased, and also avoidance of places that she would normally go without thought.

At today’s hearing, Cabot proposed an alternative plan that would ban Scroggins from 150-foot setbacks from access roads and 500-foot buffer zones from work sites. Cabot attorney Amy Barrette, of Norton Rose Fulbright, argued the setbacks were necessary because “given Ms. Scroggins’ past conduct, if you give her an inch, she will take many, many miles, and she will be up on the well pads.”

Michelman argued that the order went well beyond addressing safety concerns and posed “a chilling effect” on the speech and actions of activists who wanted to call attention to fracking operations. An injunction that prevented Vera from entering designated work sites would be reasonable, he said, but not a buffer zone. He pointed out that such a zone could keep Scroggins from certain parts of public roads as well as areas that property owners are allowed on, even if they invited her to go with them.

The broad scope of the injunction is not about safety, but a ploy to intimidate activists, Michelman said in an interview after the hearing. “It tells them you will pay for exposing what is going on at these sites. You will pay for speaking out against the big oil and gas companies.”

During the hearing, Kinchy argued that, unless it is specifically written in a lease, the lessor of sub-surface rights does not have the right to dictate who can and cannot come onto leased property. That principal will be relevant if the case goes to trial. Jeremy Mercer, a lawyer for Cabott, rebutted that Pennsylvania case law does in fact give mineral rights holders such rights.

Seamans adjourned the hearing after attorneys from each side agreed to send the court versions of the order that they could live with. Judging by the arguments, that would be in Scroggins’ case an injunction that keeps her from well pads, work areas, and access roads, and in Cabot’s case an injunction that keeps Scroggins from both these areas and specified setbacks from these areas. The case is scheduled to be tried May 1 unless the parties can come to terms.

A small group demonstrated support for Cabot 
More than 120 people attended the hearing, many of them activists from outside the area who were there to support Scroggins. A contingent of a half dozen or so drilling proponents, including some local landowners, demonstrated support for Cabot’s position.

After the adjournment, the crowd swarmed outside the courthouse where both pro-drilling and anti-fracking groups held press conferences. In a rally on the courthouse steps, drilling supporters held signs that said “Drill Baby Drill” and “Vera Get Off Our Land.” At the same time, a mix of Scroggins supporters and adversaries gathered in the corridor that lead to the back parking lot. Vera had sat quietly during the hearing and let council do the talking. Now, flanked by her lawyers, she used the platform to criticize the industry’s safety record and to call for more scrutiny.

“It sends a message that if you speak out, you will pay. This is an outrage,” she said, citing violations that the state has issued the company. “Why are they allowed to operate?”

Barrette (right) argues with Michelman over intention of Scroggins injuncttion
After about 10 minutes, a sheriff’s deputy told the crowd to go outside because the congestion in the hallway was posing a hazard. About this time, Barrette, Cabot’s attorney, shouldered her way through the crowd to Michelman, who was standing next to Scroggins. After an exchange, they exited to the parking lot. Some of the conversation was lost in the noise, but it had to do with the merits of the injunction and the way it was written.

“Did you draft that order?” Michelman said as the two faced each other in the parking lot.

“Yes, and the order was not sought to keep her from the hospital or any of those other places,” Barrette replied.

“Its language was categorical,” Michelman said. “If you wanted something different, you should have drafted it more carefully, and if you didn't like what the court entered you should have moved to modify it. You could have done that in the last five months.”

“We gave you a very narrow proposal that you rejected many times,” Barrette said, as a cluster of reporters and spectators caught up with them. “We'll let the court decide.” Barrette referred questions from reporters to George Stark (a company spokesman who has not returned my calls) and she walked away to rejoin the pro-drilling group in the front of the courthouse.

Shale Shock Media captured some of the events following adjournment, including the confrontation in the parking lot, in the video below:


  1. Cabot is part of an industry that: sites gas wells, pipelines, and compressor stations ridiculously close to homes and schools; deprives landowners of control over their property via forced pooling and eminent domain; has secured exemptions to major federal environmental laws; has been reluctant (to say the least) to provide full details of the chemicals it uses; and has a bad safety record for its own employees. And now we're supposed to believe that Cabot is deeply concerned about buffer zones, trespassing, and safety.

    Don't get me wrong--I understand why a company that is engaged in dangerous industrial activities might want to limit access to its area of operations. But I strongly suspect that Cabot's draconian measures in this case have little or nothing to do with safety, and everything to do with trying to prevent Vera from continuing to film and give tours of the NE PA gas fields.

  2. The most disturbing part of this event was the demonstrations by people from the JLCNY, including one board member violating title 18 section 5102. You can not demonstrate in or around a court house in PA.

  3. Right now it seems like the focus is on Vera, but this is not just about banning one individual from taking photos and shining a light on corporate actions. This is, in many ways, an extension of "ag-gag" laws, and one step from banning anyone, including journalists, from sharing what they see (even if taking photos from the edge of the road).

    1. Sue, excellent point. This goes way beyond Vera. More on Ag Gag and implications for fracking here.

    2. I agree--this is much larger than one individual and much larger even than one industry. But I think Vera has shown incredible persistence and courage in trying to fight Cabot's heavy-handed tactics and also in making everyone else aware of those tactics, and so in that sense, this is about Vera.

    3. Mary, as much as Vera is the star, there's one hell of a supporting cast. Michele Michelman, the lawyer trying her case pro bono. Tom, the journalist writing about Vera. And Shaleshock Media, the producer of the video on Vera. Among others.

      O&G, its politicians and its PR contractors want us all to become isolated individuals and strident bootstrapping libertarians. It's easier to do land grabs and gut environmental protection. It's called divide and concur. And it's assumed everyone has a price in a libertarian petrostate.

    4. Yes, Michael, I agree. Vera is one among many, not just as far as this particular case is concerned, but in a much larger fight that encompasses not only the struggle against shale fracking, but the struggle for individual rights. However, in this particular instance, if Vera had not been willing to make her case in court--if she had allowed herself to be intimidated into silence--very few people would have ever heard/read about Cabot's heavy-handed injunction. This is the sort of thing that makes one wonder how many others, nationwide, have been intimidated into silence through non-disclosure agreements and other tactics.

    5. Mary, I got lost in PA regs (see my comment below) upon reading Tom's post. I spent way too much time on something that doesn't impact me. Based on a mediocre reading comprehension skill level and a gut feeling, my guess is that PA's enviro and minerals regs are not written for protection of the individual, with respect to rights anywhere within or without gas operations. They're written for protection of corporations and cover for the state. [And maybe content creation for environmental documentarians and journalists. That was satire] The regs are the thing.

    6. Yep--it does indeed appear that PA's mineral regs are written for protection of the corporations and cover for the state. That's why it's particularly galling that Cabot's attempts to silence Vera Scroggins are presented in a way that makes it sound as if Cabot is deeply concerned about safety, when in fact, a tour of Susquehanna County will demonstrate that Cabot has no qualms about siting gas wells incredibly close to occupied buildings and busy roads.

    7. You are so spot on, Sue. We need to examine the entire intersection of private property rights and exploitation. Ag-gag needs to go away and some "eminent citizen-journalism domain" needs to rise to allow people to monitor all our resource extraction sites.

      We should promote mandatory insertion of a "Scroggins Clause" into all relevant permits, a legal framework by which Vera and any of us may lawfully transit upon resource exploitation sites 24/7, with whatever sensing and/or recording gear we wish, to observe and share whatever is going on, subject to whatever personal safety gear may be necessary from time to time.

      ~ Privacy ends where exploitation begins ~

    8. I just wanted to continue the train of thought of my most recent comment: not only are PA's mineral regs insufficiently protective of the public and the environment, but Cabot cannot seem to manage to operate within even these insufficient regs. and has piled up a very, very long list of violations in PA. That's how much Cabot really cares about safety.

    9. Mary, if I can give any words of wisdom to residents and citizens of the US it's this: read the regs. Start with the act upon which a regulation is based. And then read citations. Especially as environmental oversight becomes increasingly voluntary and industry lead. There will still be regulation in this new world. They'll just read more like a credit card agreements and stock perspectives.

      This may sound overly burdensome. It's not. Once you read and get the flow pattern down. The rest goes fast. It's funny, contractors read regulations and permits much more closely than engineers and consultants. And sometimes lawyers.

      Sadly, many on the right complain about regulation. It's not regs per se, it's regs they don't like. Circuitous and confusing regs that put the onus on the individual - those are OK to many who complain about regulation. They just don't mention this to their constituents. And they can afford really high paid regulations writers and lawyers.

  4. For more still photographs of this important day, please see:

  5. Here is the cheery grandmother at work on private property -

  6. This comment has been removed by the author.

  7. Please note: I went a little blue on the comment above so here it is again.

    From googling of "public access restriction and oil and gas well setbacks and exclusion zones" I found this from PA DEP:

    "Landowners and Oil and Gas Leases in Pennsylvania: Answers to questions frequently asked by landowners about oil and gas leases and drilling"

    It's a FAQ for landowners and mineral lease holders. It seems to me that if you're a land owner and not a leaseholder - you're not the focus. I'm sure if you're a member of the public at large, doing walkabouts and look-sees, you're not even in the frame.

    From the quick review of the cited regs in the FAQ, environmental and health protection onus is put on the individual, which seems lopsided and unfair.