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: