Judge Upholds Frack Ban

Denies injunction, but drilling can continue

Morgantown Dominion Post
25 June 2011
By David Beard

Morgantown had a small legal victory regarding its horizontal drilling and fracking ban Friday.

Judge Russell Clawges denied a motion for a preliminary injunction and temporary restraining order to stop the city from enforcing its law.

City Attorney Steven Fanok said that won’t halt Northeast Natural Energy’s drilling at the Morgantown Industrial Park Marcellus gas well pad, but will prevent the company from fracking when drilling is complete.

On Friday, land and mineral owner Enrout Properties LLC joined a civil suit filed Thursday in Monongalia County Circuit Court by Northeast Natural Energy regarding the ban.

The suit requested the preliminary injunction. City manager Terrence Moore said Friday’s 2 1/2-hour hearing on the injunction ended with Clawges ruling in the city’s favor.

“The city will proceed from there,” Moore said.

Fanok said Clawges merely stated that at this time, a temporary restraining order would be inappropriate.

The suit states:

The state Department of Environmental Protection issued Northeast two permits to drill and frack gas wells in the Morgantown Industrial Park.

The Morgantown Utility Board (MUB) subsequently sought and obtained certain extra safety measures to protect the city water supply. Those measures were incorporated into the permits.

Despite the agreement with MUB, the city on Tuesday passed a horizontal drilling and fracking ban within one mile of city limits. In its law, the city declared such actions a public nuisance. Because the activity is permitted, plaintiffs state, it can’t be a public nuisance.

State code makes it clear that the DEP, not cities, permits and regulates oil and gas wells.

The city ordinance is a land-use ordinance, and state zoning codes do not permit zoning outside corporate limits.

The city law infringes on Enrout’s rights as a land and mineral owner and amounts to an unconstitutional taking.

By failing to read the ordinance in its entirety, the city failed to follow its own charter, thereby invalidating the ordinance.

The suit asks the court to void the ordinance and grant any other appropriate relief. It also requests a temporary restraining order and preliminary injunction, citing irreparable harm in halting operations already under way.

At the hearing, Fanok said, it was explained to the court that the gas well operation wouldn’t be in violation until fracking would begin. Northeast can continue drilling until then.

Northeast President Michael John issued this statement Friday:

“While we had hoped to avoid legal action, it has become apparent that the judicial system is the only recourse to protect our rights and investment in our wells in the Morgantown Industrial Park. ... While we understand and appreciate the court’s ruling on this initial request for a temporary restraining order, we remain confident that the ultimate question of the validity of this proposed ordinance will be answered in our favor.

We are encouraged that the City admitted in today’s hearing that we are not currently in violation of its proposed ordinance, and we appreciate the opportunity to clarify the confusing nature of how the city intends to apply this proposed ordinance.

We are also encouraged that the court recognized that the city of Morgantown has changed the rules after we have invested more than $7 million in this project and we will seek full compensation for Morgantown’s attempt to unlawfully take our property rights.”

Attorneys for the plaintiffs also could not be reached for comment after business hours Friday.
CORRECTIONS/CLARIFICATIONS

Based on unclear information, Saturday’s story on court action regarding the civil suit by Northeast Natural Energy and Enrout Properties LLC against Morgantown contained an error. Monongalia Circuit Judge Russell Clawges ruled only on the temporary restraining order, not the request for a preliminary injunction. Morgantown clarified its position that its new ordinance bans only fracking, therefore Northeast may continue drilling, and the 10-day restraining order was unnecessary.