Sullivan County Legislator David Sager vs. “Goliath” John Bonacic?


Before   Sullivan County Legislator,  Dr. David Sager,  (District 1)  took the podium  at his press conference this afternoon,  he arranged a pair of yellow and blue campaign signs on either side of the podium.  The signs proclaimed,  “Sager  for State Senate. No nonsense. Honest Leadership.”

Literally, the  announcement may  change the face of  NYS Senate District 42.

Not only did Sager  announced his intention to  challenge long-time incumbent Republican John Bonacic, but   he will do it as a Democrat.

Sullivan County Democratic Chair, Steve Wilkinson,   introduced Dr. Sager and welcomed   Delaware County’s  Democratic  Chairwoman Cindy Lockrow-Schimmerling and various other Democratic Party notables.

“I’d like to address the large elephant in the room,”  Mr. Wilkinson began.  “David  is changing his  political affiliation from Republican to Democrat.  This is not an opportunistic change but a a philosophical change,”  Mr. Wilkinson  continued to loud applause.   “To borrow from Winston Churchill,  ‘There’s nothing  wrong with change as long as it’s in the right direction.’  Democrats wholeheartedly welcome David to the Democratic Party. For too long  the New York State Senate has been the log jam to realizing change in New York. It has been mired in its own personal politics.”

Obviously, it  was not just any elephant Mr. Wilkinson was talking about.  Dr. Sager has held his  Sullivan County Legislative seat as a Republican.  In order for him to face Bonacic as a Democrat  in a  General Election,  he must get the nod from the  Democratic Chairs of the four  counties  which  comprise District 42:  Sullivan,  Ulster, Delaware and  a piece of Orange.

Ulster  County Legislator, Susan Zimet  (D, District 10)  campaigned against John Bonacic in 2006.  Although her effort fell short by roughly 12,000 votes,  it was a strong showing against the then-16-year incumbent. (Bonacic first became a member of the New York State Assembly in  1990 and has served in the NYS Senate since 1998.)  Zimet’s  2006 campaign website is still  up and available for viewing here.

Dr. Sager’s opening remarks  perhaps signaled  the tone he hopes to strike during the upcoming campaign.  “During the course of my service on the Sullivan County Legislature,  I have been honest and passionate. I have not been afraid of issues that were unpopular or complex.  If you liked me as a Republican, you will like me even more as a Democrat.  I will contuinue to champion fair and just causes and it won’t  matter to me if an idea is Republican or Democratic as long as it’s a good idea.  After  years of consideration,  I have changed my party enrollment and  have done so in good conscience.   I still stand  for fiscally  responsible and accountable government but my social views have evolved and are more in concert with core Democratic Party values.”

Taking on some who have criticized him  for  verbal  gaffs,  Sager said,  smiling at  The Times-Herald Record’s reporter,   “I have a reputation for having a  salty tongue — per The Times-Herald Record.  I will continue to be candid and fight for what’s  right. I will put the people first. Our state government is broken…and our current State  Senator is a long-time part of the problem. Unfunded state mandates have crippled  local governments and placed the burden on local taxpayers.”

“State Senator Bonacic  advocates for unfettered gas drilling.  I want a society and  government that asks at what price do we support industrial development that is potentially lethal to us  all.    At what point do we say no to large corporations who put their profits  first?   Gas drilling must be safe, legal, economically beneficial to all and subject  to local controls. We must take a hard look at a comprehensive  Environmental Protection Agency  study of gas drilling.  We must  support the Englebright bill which will institute a drilling moratorium in New York State until 120 days after the EPA releases the results of its study.   It’s a simple, sensible bill.  We can  wait for the science. We have a responsibility to provide safe drinking water to our children and families…. Safe drinking water is a right not a privilege.  Senator Bonacic  has been misguided [about gas drilling] while  I have been demanding a rational approach.  There must be a return to  local control. ‘Drill,  baby,  drill’  is a slogan not a policy.”

At a recent County Legislature meeting, Dr. Sager said  that the drilling issue  should not pit  farmers against non-farmers.  “It’s not an agricultural issue.  It’s about the industrialization of New York.”

“We must ask,  ‘Will the growth we advocate be sustainable?  How will  New York State and  District 42 grow?’  The 42nd District is in the process of becoming an important economic link to New York City  —  an important link to  a  sustainable lifestyle —  industrially, personally and agriculturally.”

On other topics, Dr. Sager  reminded the audience,  “I have sponsored sweeping and meaningful ethics reform for Sullivan County and  I will be at the head of it in New York State.”

“I will champion property tax reform and will be joining  Sullivan County Treasurer, Ira Cohen,  in  continuing to  review  tax exempt policies.  Large tracts of land and living complexes end up off  the tax rolls.  People cannot continue to vacation in the 42nd district for free.”

“I will fight for our schools, teachers and students so students can afford the college education they need and I’m determined to ensure our region has  the  infrastructure it will need  to benefit small businesses.”

“I’m going to need your help.  We need people who passionately support our cause. We need volunteers who will go door-to-door.  Please contact us at:  sagerforsenator@gmail.com until we get our website up and running which will be very soon.”

After his prepared remarks, Breathing asked Dr.  Sager  what he had to  say about local drilling issues and ethics reform.

“The county is in the  process, because of  my fierce prodding, of completely re-doing  our ethics policy.   As to drilling, I have not taken an anti  approach but there has been a general and blind pursuit of drilling without a necessary analysis of the science.  DEC’s  [NYS Department of Environmental Conservation] employees have  said the draft Supplemental Generic Impact Study is seriously flawed and no local official should be questioning that statement.”

Dr. Sager was also asked  how changing his  political party affiliation will affect his status with the Sullivan County Legislature.   “I’ve got a great working relationship with Jonathan [Rouis] and Woody [Elwin Wood]. I intend to caucus as a Democrat.”

A member of the  public  asked,  “Are you going to support green technology that  will help us avoid dependence on  Middle East  oil?”  and Dr. Sager reiterated,  “I want to turn the 42nd District into an area that promotes green technology. It’s how we’re going to grow our area.”

When Breathing asked a Sager supporter about  the candidate’s “salty tongue” remark,  the long-time patient of   “Dr. Dave”  said,  “Does he step in it sometimes?  Yeah.  He’s a passionate guy.  He’s not always smooth but that’s why I like him.  He does his homework and doesn’t have a lot of patience for  political games.”

For information on the amounts of money  NYS Senator Bonacic has raised in the past,  comprehensive postings have been made available  FROM PROJECT VOTE SMART and FROM THE DAILY KOS. Dr. Sager should hold on to his hat because both sites have published campaign war chest  figures for the Senator  in the $700,000 range.

Standing Room Only: Delaware Town Board: 4-21-10


Last month, one member of the public attended  the Delaware Town Board meeting.  Last night,  attendance was standing room only.

Highway Superintendent Bill Eschenberg made an appeal to the public for patience  as he cited to reduced funding from both New York State and the federal government.  “Please remember we’re all in this together if you find yourselves driving over potholes this winter.  We’ve got no idea what will happen with our CHIPS funding.”

CHIPS is  the Consolidated Local Street and Highway Improvement Program and according to page 76 of Governor Patterson’s  Budget Briefing Book for 2010-11, “…the Executive Budget maintains the State’s core Trust Fund investment in the highway and bridge program at 2009-10 levels and also preserves funding for local highway and bridge projects under the Consolidated Highway Improvement Program (CHIPS) at prior-year levels.”   Those figures may change depending on action by the NYS Legislature.

Kara McElroy,  the Town’s Grants Coordinator,  reported,  “We met with the Rural Water Association (RWA) about our sewer plant problems and it looks as if there are several funding streams available to us for help.  We’ve had an application  with the United States Department of Agriculture (USDA)  for a long time so  the RWA met with us to suggest engineering directions we might pursue.”

Ms. McElroy also  reported that “the Town’s Community Development Grant application will be submitted this Friday and  our application for  Upper Delaware Council (UDC) funds will be sent tomorrow.”  (For more on these grants and the programs involved, please see  Breathing’s coverage of last month’s Town meeting.)

According to Ms. McElroy,  “We’ve been awarded a Category B Renaissance Grant for which the Town will be the lead agency.”  To help with the project, please email townofdelaware-ny.us

Harold Roeder,  Chair of the UDC and  the Town of Delaware’s  representative to the Council,  also spoke to the  fiscal  theme  struck by  Superintendent Bill Eschenberg by explaining that the UDC has been operating under the auspices of the National Park Service (NPS) since its inception.  “The Council was established  to protect property  rights and to protect water  quality in the Delaware River Corridor.  We get funding  from the NPS but  the amount hasn’t changed for twenty years.  That lack of increase results in less grant monies for our member townships.”

According to the UDC website,  the Council helps ensure the responsible actions of property owners through its  “…commitment to local land use controls and voluntary actions by landowners to protect the resources on their own private property, as opposed to federal ownership of the land in the river corridor.”

Ms. Ginny Boyle reported on The Callicoon Creek Park’s  recent “Work Day” which was coordinated with student volunteers from The Delaware Valley Job Corps.  She also referenced the many summer  events being planned for  The Park which include  music and art festivals,  weekly farmers’ markets  and a  May 22nd Plant Swap.  (The Park Committee’s  website and blog  will be “going live” on  or about May 1st so stay tuned for news on that.  Until then,  see notes at the end of this article for specific events and dates.  Breathing was very pleased to participate in the “Work Day”  with the  kids from Job Corps and had a great morning!)

While thanking the Town for refurbishing the Park’s entryway,  Ms. Boyle asked if funds  could be made available to replace damaged fence railings.  Although Town funds are not available, Councilperson Matt Hofer said Hofer Log and Lumber would donate whatever materials might be needed.

Councilperson John Gain reported on his tour of many of the Town’s  flooding trouble spots with  representatives of the  New York State Department of Transportation (NYSDOT),  Soil and Water Conservation and Mr. Jim Hughson,  owner of a local excavating company.  Mr. Gain described problems with rubble  under  the SR 52 bridge near Dick’s Auto Sales where the brook is seriously narrowed and several problems with culvert pipes.  “NYSDOT needs to get a digger from West Virginia that’s used to clear   rubble from coal mines but there’s no way of knowing when that will happen.  We’re facing significant erosion issues and it looks like  the pipes will have to be replaced.”

Mr. Hughson’s company, Jeff Sanitation, was awarded  a contract for the Town Clean-up Day.  (Please call  the Town Hall  at 845-887-5250  for details of that program  and another which permits residents and businesses  to dispose of electronic equipment on two separate days.)

Town Clerk, Ms. Tess McBeath  outlined steps that still need to be taken before the Town can incorporate  Farmland Protection into its Comprehensive Plan.

“The Gas Drilling Resolution,” which was tabled without comment last month,  passed this month with the removal of  an item calling for  “Inspections done by locally trained and qualified inspectors.”   According to Supervisor James Scheutzow,  the Board received a petition signed by forty residents  in support of the Resolution.  Council members Cindy Herbert, Harold Roeder and John Gain voted yes  “with reservations”  while Matt Hofer voted no and James Scheutzow voted in favor.

PUBLIC COMMENT

Mr. Matt Murphy of  the Stewart-Murphy Funeral Home asked why  Howard Fuchs, the Town’s Building Inspector,   cited him for  violations of the Americans with Disability Act (ADA) when many other Town of Delaware businesses listed by Mr. Murphy  do not provide handicap access as mandated by the law.  The Board promised to look into the matter, discuss it with Mr. Fuchs and get back to Mr. Murphy.

Mr. Roy Tedoff,  a landowner in the Town of Delaware,  described  NYS Assembly Bills 10490 and 10633.  “A10490 asks that a moratorium  be declared in NYS  until 120 days after  the Environmental Protection Agency (EPA) has issued a report on  the impacts of  gas drilling and hydraulic fracturing on drinking water.   A10633 gives Towns the right to use zoning regulations to control where drilling can take place.   This Town Board should contact the Assembly and  state the Board’s approval of the proposals.”   Supervisor Scheutow said he didn’t know about the Bills but would look into them.

Although a resident in the Town of Fremont rather than Delaware, Mr. Noel Van Swol spoke at length several times.  He is  a leading public voice on the issue of gas drilling and hydraulic fracturing.   He was also a leading opponent of  the  National Park Service’s involvement  in the Delaware River Corridor twenty years ago when  he made the  argument that local people could police themselves and keep The River safe.  Now, he and Mr. Bill Graby of the Sullivan-Delaware Property Owners Association, are  committed to drilling and hydraulic fracturing as “the only thing that will save us economically.”

In response to Mr. Tedoff’s  request that the Town support Assembly Bills  10490 and 10633,  Mr. Van Swol said,  “Those Assembly bills would further delay  drilling in New York State.  Our landowner group represents 9,215.24 leased acres in Delaware Township.  That’s more than 14 square miles.  Our organization has  to oppose the Board supporting the Bills.  Local property owners have been the silent majority while environmentalists have promoted their  hidden agenda to stop the drilling.  We’ve heard tonight of dire [economic] times and the only solution is this vital new drilling industry. New York State Senator  John Bonacic has said that upstate NY is dead.  Only  drilling can give it a heartbeat.  Hydraulic fracturing  has  been around since the 1940s.   As Jack Danchak commented recently,  there have been more than one million  wells fracked in the US and not one  serious instance of  trouble.”

Mr. Danchak  is a local sportsman who writes a regular column on fishing and hunting for the Sullivan County Democrat.  Although  he’s right that “fracking” has been around since the 1940’s, the  new slick water, high pressure,  horizontal hydraulic fracturing  technology proposed for New York and pioneered in Texas in 2002,  has some  scientists and the Environmental Protection Agency worried.

Gas extraction companies had known for years about the immense gas reserves in the Marcellus and Barnett Shales, but  there was no  viable way to remove it.  According to a gas industry publication,  The Permian Basin Petroleum Association Magazine,    “…when Devon Energy Corporation acquired Mitchell Energy in 2002, it drilled down vertically to the Barnett Shale, turned the drill bit, and continued drilling horizontally…. The combination of the water fracs and horizontal drilling revolutionized the unconventional shale gas play.”

Reports of  accidents and contamination in Dimock, Pa.,   DISH, Tx., Pavillion, Wy.,  Fort Worth, Tx  and other areas,  contradict assertions  by Mr. Danchak and Mr. Van Swol  that  “not one serious instance of trouble” has been caused by the  technology. (Milanville resident, Josh Fox, has documented some of those occurrences in his award-winning film, “Gasland.”

Mr. Van Swol continued his speech with a reference to New York’s dairy farmers who are still being paid at 1970’s  milk prices  and asked,  “What’s worse?  Some gas wells or farmers  going out of business and subdividing their properties and the environment being polluted by septic systems?”

Many family  farmers in New York  have been forced out of the dairy business due to abysmally poor pricing supports and federal underwriting of  gigantic  “factory farms”; but  people concerned with the impacts of  gas drilling have responded to Mr. Van Swol’s question in public hearings  by stating  that the carcinogens found in hydraulic fracturing fluids are not found in septic systems.

Mr. Bill Graby said, “We property owners have been working with the gas companies for almost two years. We’ve developed lease agreements that protect everyone.”

Mr. Tedoff replied, “Please make those contracts public.  We’ve been hearing about all the protections you’ve gotten,  but  all we  have is your word for it.   Until you stop keeping your leases secret, it looks like you  want to get all the gas out,  make the money and leave the rest of us so we can’t drink the  water.  Lease protections wouldn’t be so important if the gas drilling companies were regulated under The Clean Water Act.

A new resident and professional baker,  Ms. Elizabeth Finnegan said, “I also want to encourage the Town to support the moratorium Bill.   Let the EPA do its job.  If our water, soil and animals aren’t safe,  it won’t matter what kind of money’s available for grants.”

Steve Lundgren, another Town of Delaware resident  said, “Drilling is not the only solution to our economic problems and two years is not too long to study it.  Not everyone will benefit from drilling.   I understand  the farmers’ plight but only a small number of  leaseholders  will benefit.”

“The  NYS Department of Environmental Conservation (DEC) is  responsible for protecting us,”  said Mr. Van Swol.  “If you don’t trust the State…they haven’t found problems in New York.”

The Environmental Protection Agency (EPA) has issued reports on DEC’s inspection and enforcement record which contest Mr. Van Swol’s assertion and recently, Department of Environmental Conservation (NYS DEC)  Commissioner Grannis admitted at a conference that his agency,  which oversees gas extraction, is understaffed.

(In a comment at Breathing, Jennifer Canfield, a long-time local realtor addressed one piece of the prosperity issue at Breathing by providing a list of banks  “who will not fund leased properties, based upon environmental risk, as per information gained from a mortgage broker who is still looking further into the situation:

First Place Bank
Provident Funding
GMAC
Wells Fargo (will know for sure in a few days)
FNCB
Fidelity
FHA
First Liberty
Bank of America

“A few local lenders who underwrite their own are still lending, ”  Ms. Canfield continued.  “We are trying to also get a determination from the sources at Freddie Mac, Fannie Mae and Ginnie Mae.”)

Additionally, FHA rules (Federal Housing Adminstration) state,   “No existing home may be located closer than  300 feet from an active or planned drilling site.  If an operating [gas] well is located in a single family subdivision, no new or proposed house may be built within 75 feet of the operating well.”

Another long-serving realtor, David Knudsen responded at his site, “When a property has a gas lease on it that permits use of the surface for drilling, a third party essentially has the rights to materially change the property. Environmental concerns notwithstanding, those material changes to the surface could affect the value of the property, possibly devaluing the asset that the bank has lent on. Likewise, appraisals become difficult. Any piece of real property comes with a ‘bundle of rights’ that comprise its value. A gas lease essentially severs one of those rights, gas extraction, from the real property, so it becomes difficult to determine the value of the property without that right to transfer with the real property. It makes valuation very complicated. And in this still-tight lending environment, most lenders don’t want to deal with anything complicated or with an unquantifiable risk.”

Mr. Paul Hindes, the Town of Delaware’s  representative to  the Multi-Municipal Gas Drilling Taskforce (MMTF),  explained the MMTF has been focused on creating Road Use Agreements the Taskforce hopes will provide asset protection in the event that gas drilling comes to its eight  member towns.  “We want all eight towns to have identical road use laws that take into consideration not only the weight of industrial trucks on our roads but also the weight of those trucks over a cumulative period of time.”

Bill Eschenberg,  the Town’s  Highway Superintendent,  said he didn’t see any  evidence of harm from gas drilling during his trip to  “Susquehanna”  where Dimock, Pennsylvania is located. “If trucks wreck roads, they won’t keep running over them.  They need to fix them for the benefit of their own equipment.”

In contrast,   after a trip to  Dimock during  this past winter,  Breathing reported, “Throughout  Dimock, signs of poverty are  clearly visible and  the state of  dirt roads traveled by heavy drilling trucks was impossible to ignore.  Ruts were so deep and continuous that   humps as high as 8-9″ threatened  the under carriages of low-riding vehicles and, in part,  may have prompted  the Mayor’s question in Callicoon… about the state of our  local roads.”  (Mayor Tillman’s description of the gas industry’s  economic and environmental impacts on his town of DISH, Texas is available here.)

In his final comment, Mr. Van Swol said,  “Don’t worry about  money for  DEC inspectors.  The New York State Legislature will give us whatever we need  due  to all the money  coming from drilling and a severance tax.”

Virginia Andkjar,  one of the Town’s  Assesor stated,  “Unfortunately, it looks like the severance tax  will  be just a pittance.”

According to pages 98-99 of  Governor Patterson’s Budget Briefing Book,  the severance tax amounts to 3% on some gas extraction companies,  won’t be levied  until 2011-12 and is predicted to garner only  $1 million in revenues.

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CALLICOON CREEK PARK SCHEDULE (not including regularly-scheduled  Sunday Farmers’ Markets):

May 22 at 10:00 AM :  Plant Swap.  Email me at  Ljbucar@earthlink.net for details

July 10,  31 and August 21 or 28 (still in flux):  Under the Moon in Callicoon Concert Series.   Janet Burgan, coordinator. Keep your eyes and ears pealed for details!

July 17 : Art Fair.  For more information,  see Robin at  The Callicoon Wine Merchant

Gas Drilling : Inverse Condemnation : Private vs. Public Interests


EDITORIAL

Imagine a Neandrathal  stumbling upon a luscious piece of trail-kill 30,000 years ago  and debating  whether to share it with his hungry tribe or  eat it  himself.

Would survival of the fittest have trumped  his community’s needs?  Or would he have recognized  that food (like water) was  a Neandrathal utility — a resource essential to  the tribe’s survival  —  its consumption regulated with the common weal in mind?   Would Neandrathal society have  concocted some system of head thumps to ensure  that  fortunate ones shared with the hungry many?

Long-enshrined in our societal  understanding of survival  are two fundamental concepts that we treat with varying importance depending on the situation.

  • “A chain is only as strong as its weakest link.”  (Our community prospers when it  fosters and defends  the rights and strengths of  its members.)
  • “Ask not what your country can do for you  — ask what you can do for your country.”   (The strength of our  community  depends on the responsible generosity of its members.)

Some of the wildest and most contentious cases in Supreme Court history have attempted to resolve conflicts between  individual rights and  the community’s expectation that its larger, more inclusive  interests will predominate.

In  the earliest days of our Republic, Eminent Domain was  recognized as a  tool  inherent to the Federal Government’s mandate to “defend and protect.”   For  the  “public good,”  soldiers were billeted in Colonial homes during the Revolution  but  seizure of  private lands for permanent use  was  onerous to most early Americans and the “public use” restriction in the Fifth Amendment’s Takings Clause was strictly interpreted as a  protection against such seizures.

As  our population grew  and technology created a more mobile citizenry,  public works demanded more land for  roads, bridges and railroads.  In more recent years and in response to a landscape crammed full of skyscrapers, derricks, residential and shopping mall sprawl,  eminent domain has been used to protect open space for public enjoyment.   (The “public good” in this instance being protected  from the narrower interests of a few developers.)

Of particular interest to us in the Delaware River Basin is the  legal concept of  “inverse condemnation” which we hear with increasing frequency from  property holders demanding  they be compensated  when  regulations prohibit gas drilling on their properties.  According to a Fifth Amendment Annotation,** “While [the Fifth Amendment]  established that government may take private property, with compensation, to promote the public interest, that interest also may be served by regulation of property use….‘The distinguishing characteristic between eminent domain and the police power is that the former involves the taking of property because of its need for the public use while [police power] involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest.’ 251 But regulation may deprive an owner of most or all beneficial use of his property and may destroy the values of the property for the purposes to which it is suited. 252 The older cases flatly denied the possibility of compensation for this diminution of property values, 253 but the Court in 1922 established as a general principle that ‘if regulation goes too far it will be recognized as a taking.”’ 254

Later, in a 2002 case,  (Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency)  The U.S. Supreme Court found that, “Moratoria on all development in Lake Tahoe Basin area for a period totaling 32 months, imposed by a regional planning agency while formulating a land use plan for the area, were not per se takings of property requiring compensation under the Takings Clause.”

In a seemingly oblique but related development,  corporations attained “personhood”  when The U. S. Supreme Court stated in  Minneapolis & St. Louis Railroad Co. v. Beckwith (1889) “…corporations are persons within the meaning of the [Due Process and Equal Protection clauses of the Fourteenth Amendment]….    We admit also… that corporations can invoke the benefits of provisions of the constitution and laws which guaranty [sic] to persons the enjoyment of property, or afford to them the means for its protection, or prohibit legislation injuriously affecting it.”   (Bold added for emphasis.)

As the trend toward  condemnation of privately held lands has become more usual,  eminent domain actions have increasingly benefited “corporate  persons” in the guise of  public interests.  This trend  occasioned public outrage in 2005,  when The Court ruled in   Kelo v. New London that  privately-held  property could be  seized by a government  and handed over to  a private corporation  for the public benefit —  while said corporation stood to reap a boatload of  profits.

I would never deny just compensation to landholders whose property is seized for the public good but as I write this,  Congress has just launched  an investigation into  gas drilling practices  and their  potential harm to the environment.   Perhaps we should await its findings before deciding that those practices are either legal or in the public interest, as NYS Senator Bonacic has contended.

In that context, NYS  Senator John  Bonacic, the Northern Wayne Property  Owners’ Association (NWPOA) and energy corporations  have  begun a campaign of hostage-taking.  In an  “Alice-Down-The-Rabbit-Hole” logical warp,  they have demanded that millions of people who depend on water from the Delaware River Basin and New York City Watershed pay  landholders NOT to risk  that water supply with a toxic soup of corporate fracking fluids.

“Bizarre-o!”  as my friend Amanda might say.  Or more elegantly,  I refer you to  Cliff Westfall’s analogy of a few days ago, “What if I decided to burn down the woods on my land, claiming it was the cheapest way to clear a field, with no concern for preventing its spread to my neighbor’s house?  Of course the government could regulate that. The bottom line is this: the government may prevent you from doing things on your property when those actions would harm public welfare.”   In further explanation of Mr. Westfall’s comparison,  please understand that  fracturing fluids  used in gas drilling are injected underground,  may travel as much as 6,000 feet and their  direction is neither predictable nor controllable…like a forest fire.

It is inconceivable  that Senator Bonacic and the NWPOA  truly believe that in our current economic crisis any governmental entity (or body of taxpayers) has the means to pay the ransom.  The national unemployment rate is blowing up in our faces.  Tax revenues are plummeting.  Small businesses are dying.  Our infrastructure is crumbling and our children are moving back home and forsaking dreams of college.  In the event NWPOA or some other organization of  lessors prevails in  a lawsuit demanding compensation for the value of their  mineral rights,  every taxpayer, student and worker who does not  benefit from gas royalties will lose.  And the sure winners?  Drilling companies who stand in the background ready to reap the  profits.

Given the latest U.S. Supreme Court decision which found in Citizens United v. Federal Election Commission —  a la George Orwell’s  Animal Farm —  that some “persons”  and their lobbyists  “are more equal than others,” we should not doubt the risk faced by our water and our Republic.

And given the evolutionary demise of Neandrathal,  I can’t help but wonder if  he decided to eat the whole thing all by himself.

Urge the Delaware River Basin Commission and the US Congress  to  enact moratoria  on drilling. It’s for the “public good”  because,  as more and more people are beginning to remember,  “We cannot drink gas  nor grow our food with it.”

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*   “…nor shall private property be taken for public use, without just compensation.”

**In general, compensation must be paid when a restriction on the use of property is so extensive that it is tantamount to confiscation of the property.

In the Mahon case, Justice Holmes for the Court, over Justice Brandeis’ vigorous dissent, held unconstitutional a state statute prohibiting subsurface mining in regions where it presented a danger of subsidence for homeowners. The homeowners had purchased by deeds which reserved to the coal companies ownership of subsurface mining rights and which held the companies harmless for damage caused by subsurface mining operations. The statute thus gave the homeowners more than they had been able to obtain through contracting, and at the same time deprived the coal companies of the entire value of their subsurface estates. The Court observed that ”[f]or practical purposes, the right to coal consists in the right to mine,” and that the statute, by making it ”commercially impracticable to mine certain coal,” had essentially ”the same effect for constitutional purposes as appropriating or destroying it.” 255 The regulation, therefore, in precluding the companies from exercising any mining rights whatever, went ”too far.” 256 However, when presented 65 years later with a very similar restriction on coal mining, the Court upheld it in Keystone Bituminous Coal Ass’n v. DeBenedictis. 257 Unlike its precursor, the Court explained, the newer law ”does not merely involve a balancing of the private economic interests of coal companies against the private interests of the surface owners.” 258 Instead, the state had identified ”important public interests” (e.g., conservation, protection of water supplies, preservation of land values for taxation) and had broadened the law to apply regardless of whether the surface and mineral estates were in separate ownership. A second factor distinguishing Keystone from Mahon, the Court explained, was the absence of proof that the new subsidence law made it ”commercially impracticable” for the coal companies to continue mining. 259 The Court rejected efforts to define separate segments of property for taking purposes–either the coal in place under protected structures, or the ”support estate” recognized under Pennsylvania law. 260 Economic impact is measured by reference to the property as a whole; consideration of the coal placed off limits to mining as merely part of a larger estate and not as a separate estate undermined the commercial impracticability argument.

In a case examining a Moratorium imposed on development in the Lake Tahoe area, the U.S. Supreme Court has decided that a moratorium on development is not necessarily a taking, and that regulatory takings cases must be decided on a case-by-case basis rather than on categorical rules, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (U.S., Apr 23, 2002) (NO. 00-1167).  …the Court held that because the regulation was temporary, it could not constitute a categorical taking.”

DRBC Hearing On Stone Energy Draws Nearly Unanimous Opposition


I apologize for the delay in posting these notes on the February 24, 2010   Delaware River Basin Commission’s  (DRBC)  Public Hearing  at which two applications by Stone Energy were considered.  (Like most of you, we’ve been trying to find our driveway and a couple of  buried vehicles.)  For a better understanding of the comments reported here,  please  View Draft Dockets D-2009-013-1and D-2009-018-1.


All but five  speakers who addressed  Stone Energy’s  applications opposed  them.  Virtually all those opponents asked the Commission to impose a moratorium on gas drilling until the cumulative impacts of  the industry’s activities could be studied.

Small business owners testified that they were hesitant to build or expand enterprises in the Delaware River Basin for fear of  the adverse economic impacts of drilling and hydraulic fracturing.

Susan Blenkensap  stated,   “My neighbor is  a  lifelong  resident. She had  a real estate agency  for   30 years.  She closed her doors because she couldn’t, in conscience,  sell property  to   people   when the land is under threat of drilling.”

Ryan Wood-Beauchamp  was concerned about property values.  “What if we can’t sell our homes?  And what about the  FHA [Federal Housing Administration]?”  (It was an allusion to FHA rules which state,   “No existing home may be located closer than  300 feet from an active or planned drilling site.  If an operating well is located in a single family subdivision, no new or proposed house may be built within 75 feet of the operating well.”)

Jessica Corrigan owns an outdoor experience business.   “Our house burnt down,” she said.   “We don’t know what to do.   Should we rebuild  under this threat?

One landowner who has joined the Northern Wayne Property Owners’ Association  — an organization  that supports drilling and  claims to represent  80,000 leased acres — says he has not leased and lies awake at night hoping that drilling does not come to his area.

Al Benner is  contemplating developing an organic  farm but he’s “hesitant to do it. People aren’t thinking about the long term impact on our quality of  life.  We have  hundreds of summer camps.     That revenue will be wiped out  if reports surface about  benzene and toluene  in the  water up here. Drilling  could decimate this region for generations.”

Like many other speakers, Greg Schwartz, an organic vegetable farmer in the Upper Basin insisted the Commission  quantify  all  the  potential  drilling operations  in  the Basin.  “If  you don’t make a decision about the cumulative impacts,  you will abrogate your legal   responsibility  to the  Basin and that would be actionable.  I am an organic vegetable farmer.   I   rely on  biologically healthy soil.  I’m afraid  drilling will destroy  my business.  I urge  you to resist  today’s political pressure.”   (Breathing has presented information on  the  growth of organic farms nationally and in New York State.)

Bernard Handler  addressed Stone Energy’s documented  illegal activities in the Basin,  “Stone Energy has already violated the rules of the DRBC by drilling in The Basin without permission.  They were also non-responsive to the Commission’s requests to respond, ignoring letters, etc.  Now they come with hat in hand and we are  supposed to believe they are the good guys.  They have already set up a drill pad,  drilled 8350 feet,  transported toxic water out of  The Basin and buried drill cuttings underground without following the DRBC’s guidelines.”

A DRBC press release on 6/9/08 “announced that [the DRBC]  has informed Stone Energy Corporation that it will need to apply for and receive approval from the Commission before it can extract natural gas in Wayne County, Pennsylvania…”

The letter was an official statement from the DRBC that Stone Energy  had violated DRBC regulations by commencing drilling without  obtaining DRBC’s  approval.

DRBC’s own Docket No. D-D-2009-18-1 says  that Stone Energy drilled   the vertical well  on a date uncertain “between  May 9, 2008 and June 2, 2008.”   Because he DRBC’s knowledge of many of the well’s specifications is not first-hand, the Commission has been forced to rely  on  Stone Energy’s application which “indicates it  was constructed in accordance with PADEP  [Pennsylvania Department of Environmental Protection] Chapter  78 Subchapter D regulations.”  There is nothing in the Docket describing the diligence or  scope of  PADEP’s oversight of Stone Energy’s construction of the well,  the company’s  subsequent withdrawal and transport of   toxic water,  nor its burying of its drill cuttings.

Because drill cuttings are recognized as a source of toxins, The Pennsylvania Legal Code describes the  required  disposal procedure.

It is also important to note that as a matter of law,  the DRBC’s  rules supersede Pennsylvania’s Department of Environmental Protection.

According to the Docket,  on  June 6, 2008,  “the DRBC  requested that an Application for  the M1 Well Site be submitted to the Commission for review and approval.”

Four months later (December 2008) after  “Stone drilled and cased the M1 well without Commission approval,   a settlement agreement between Stone and the Commission required Stone to submit an application to the DRBC for  review and approval of the well and to  pay a fine as specified in the settlement agreement.”  According to The Upper Delaware Council’s meeting minutes from March 5, 2009,  Stone Energy paid a fine of $70,000. The well was capped before gas was extracted.  (See faulty well casings cited in Ohio house explosion.)

Finally, two months later (February 13, 2009)  “Stone submitted an application to the Commission for approval of the  existing M1 Well”  and this past Wednesday,  Mr. Handler’s outrage that the DRBC would consider granting two applications by Stone Energy was echoed over and over again by  Hearing attendees.  “After all,  how can the DRBC even consider approving  an application from a corporation which has already treated the Commission, its rules, The Basin and its environmental health with such disdain.  To even hold a hearing on the application makes the DRBC complicit in  rendering itself  ethically and, perhaps, legally irrelevant,”  said one speaker.

One man who lives within a few miles of the existing well  was overcome by emotion and was unable to complete his statement which began,   “It’s upsetting to me  how   our community’s being divided,  neighbors against neighbors.    It’s about the companies being  given leeway to run roughshod  over everybody.    I’m  not angry at my neighbors for leasing  their land. We’re all having a  tough time.  But if  you’re going to lease the land, at least accept there’s some dangers here.  I see people shaking their  heads  about proven   damage that’s happened.  At least  accept that if you lease  you’re  taking a  risk.  I’m pissed.  Taxpayers fund these corporations.”

Marian Schweighofer, founder of the Northern Wayne Property Owners’ Association and an  advocate of gas drilling and hydraulic fracturing,  supported approval of  Stone Energy’s applications.    Holding up a map of Wayne County,  she announced that her membership represents 80,000 leased acres.   She addressed  the issue of  “inverse condemnation”  which prevents  landholders from leasing their  mineral rights but does not provide them with compensation for the resultant loss of revenues and reduction in the value of their properties.   In fact, her  sentiments  have been echoed  by New York State Senator John Bonacic,  in response to New York City’s demand for a moratorium on drilling in the New York City Watershed, “Let them buy the development rights,” he says. “For those landowners who want to sell their gas rights, let the City pay the same market rate to keep the land undeveloped. We buy agricultural development rights for tracts of land we want to preserve. Let those who oppose the lawful exploration and extraction of gas in the Catskills (do the same).”

Opponents of  compensation believe Bonacic’s idea  is an open-ended scheme with a wide range of unintended consequences. For instance,  Cliff Westfall asks in a reply to Ms. Schweighofer, “What if I decided to burn down the woods on my land, claiming it was the cheapest way to clear a field, with no concern for preventing its spread to my neighbor’s house?  Of course the government could regulate that. The bottom line is this: the government may prevent you from doing things on your property when those actions would harm public welfare.”

Fracturing fluids injected underground may travel as much as 6,000 feet.  Their  direction is neither predictable nor controllable.

Although the Fifth Amendment  of the Constitution ensures against ” private property [being]  taken for public use, without just compensation,”  courts have generally supported the  common good over the pecuniary benefit of a few.  In  Penn Central Transportation Co. v. New York City,  The U.S. Supreme Court held, among other things, that  “In a wide variety of contexts, the government may execute laws or programs that adversely affect recognized economic values without its action constituting a ‘taking,’ and, in instances such as zoning laws where a state tribunal has reasonably concluded that ‘the health, safety, morals, or general welfare’ would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land use regulations that destroyed or adversely affected real property interests.”  *
Sandra Folzer owns a 50 acre farm in  Tioga County and   was offered  250 thousand dollars to sign  a lease.  She refused.  “Water  is more important than gas.  I can’t drink  gas.   My neighbor  is  pushing me to sign  but fracking is not  tried  and true.  Fracking   the  shale has only been happening  since 2005.  New Mexico  has to tank in all its own water.  Aquifers are being depleted in Florida.   Mexico City is sinking because too much water is being taken from its aquifers.  Israel  buys its water from Turkey.    Remember  the Alamo?  It’s  dried up.”
One speaker said,  “Everyone talks about their rights.  They don’t talk about their responsibilities, though.”

A bus load of  residents  traveled  three hours to comment at the hearing and were adamant that the DRBC schedule additional hearings   in the Lower Delaware River Basin. “Philadelphia gets all its water from The Basin,”  was a common refrain.

Tanyette Colon  said she is a mother first and foremost.  “Norway  and  Italy are in  Pennsylvania  subsidizing  fracking efforts  but they won’t allow  it  in their own countries.  If this application is granted,  it  will  send a message to  gas companies  that it’s okay to  illegally   drill wells  because they’ll  get a slap on the hand  but ultimately get their way.   Residents  of Pennsylvania  don’t deserve it.”

Several speakers addressed  the environmental impacts of Stone Energy’s applications  on The Lackawaxen River  which  was named  “Pennsylvania’s River of the Year” by the Department of Conservation and Natural Resources.  Joe Zenes carried a picture of the proposed withdrawal site and, while waiting for the Hearing to begin,  worried what Stone Energy’s proposed minimum  5.9  cubic foot per second (cfs)  stream flow  would do to the stream.  “It’ll disappear,”  he grunted.  “It’ll be a trickle.”

David Jones who owns and operates Kittatinny Canoes,  supported Stone Energy’s  plans and suggested allowing  greater  withdrawals when the Lackawaxen is running higher. “Store it when there’s more volume.  This project is the start of something.  The world, the  country, our   area  needs this   industy.   This is our future.  It will save our area.  It’ll protect it from development.   Let’s not forget about  private property.  It’s  our right to harvest it.     Lengthy studies are a delay tactic.    Let’s  study  every single industry that takes  water from the basin.  Why just gas drilling?  I  depend on this water for my livelihood.  New York City  wastes  100  million  gallons  of water   regularly.    This withdrawal  represents   an olympic size   swimming  pool.   Dockets are approved all the time.  This   is discrimination.”

Bruce Ferguson responded to Mr. Jones’ claims  that  lengthy studies are the reason for delays.  “The [gas]  industry  is slowing down the process.  Let   studies go forward  so we can   move forward.   The  [Fracturing and Awareness of Chemicals Act]   would   restore  protections we lost in 2005.  It’s a very modest piece of legislation and it’s being fought tooth  and nail  by an  industry that simultaneously claims   fracking is  perfectly safe.”

*********

*Practically speaking and considering New York State’s 8.8% unemployment rate (10.4% in New York City) should taxpayers be  forced to underwrite landholder compensation for mineral rights  just as Congress launches  an investigation into  gas drilling practices  and their  potential harm to the environment?

(Inverse Condemnation is not a simple issue and Breathing would very much appreciate Ms. Schweighofer amplifying her point of view in an article  that will be published  in its entirety.  Likewise,   Mr. David Jones  and I spoke for a quarter hour or more during a break in the Hearing  and I’ve asked him to submit an article which I will publish as  written.  I think we would all benefit from their contributions to this forum. I would also like to express my appreciation to Mr. Jones for his attendance at The Light Up The Delaware River Party.  Most attendees were decidedly against drilling in The Basin and  he should be congratulated for joining us.  Kudos,  Mr. Jones!)