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Pro-frackers: Development is a landowner’s right

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In Capital Confidential
Posted on May 9, 2012 at 2:39 pm by Rebecca Melnitsky in Hydrofracking, Tom Libous

The Joint Landowners Coalition of New York presented its “Declaration of Rights” today for property owners who wish to drill on their land. They were joined by Republican state Sens. Tom Libous and Tom O’Mara.

JLCNY President Dan Fitzsimmons said, “If you own land you can farm it, you can mine it for gravel, you can harvest the timber, you can build on it consistent with local codes. Today, however, there is a movement to deny people the right to develop their land.”

“All of us believe that environmentally safe drilling can take place,” said Libous, whose Binghamton district sits in the heart of the Marcellus shale region. “It’s not something that’s going to be determined by politicians, it’s not going to be something that’s going to be determined by lawyers, and quite frankly at the end of the day it’s not going to be determined by landowners. It’s going to be determined by the experts at the DEC — those scientists, doctors, health officials, geologists, those who understand the issue and we support that concept.”

“Nothing that the JLC stands for contradicts what we’re trying to do in New York through the DEC,” O’Mara said, “and that is to develop a protocol in New York to provide for responsible and safe drilling in the Marcellus shale in New York State as we’re seeing going on in shale plates across the country.”

A member of JLCNY, dairy farmer Jennifer Huntington of Middlefield, said that she signed a gas lease to allow fracking on her land but is currently stopped by her town’s fracking ban. She is now suing her town.

With the money from fracking, Huntington said, “We would have updated our anaerobic digester that we installed in 1984. It’s 30 years old, needs to be refinished, refurbished. We would have purchased a better oil seed press to more efficiently press soybeans for biodiesel. We would have invested in our farm, our land, and our employees. This would have benefited the entire community. Every dollar that a farmer spends is respent many times in the local economy.”

“But we were prevented from doing this by my town,” Huntington added. “So in effect, the town took away my rights.”

Here’s the text of JLCNY’s Declaration of Landowner Rights:

A Declaration of Landowner Rights
Many New York state residents hold valuable mineral rights, including rights to natural gas deposits in the Marcellus and Utica shale formations. The right to develop one’s property is beholden to the individual and is a fundamental tenet of rights afforded us under the Constitution. As founding father John Adams asserted, “No part of the property can, with justice, be taken from him, or applied to public uses, without his own consent.” The state’s current hold on permits for high volume horizontal hydraulic fracturing – a technique used to develop natural gas trapped in shale – has severely restricted the rights of property owners to sell, lease, and profit from mineral ownership.
We, as residents, taxpayers, and property owners of New York State, have set forth the following “Declaration of Rights” to reclaim ownership of our property and make our voice heard as New York finalizes a plan for allowing shale development that protects our environment and benefits our communities.
Be it resolved, that all New York property owners have a right to:

  • Timely development of private property. State officials must pursue the timely adoption and implementation of sensible development rules. The delays have potentially cost property owners millions of dollars in lease payments and lost income from development of their resources contributing to further direct hardship for many families.
  • Reasonable and timely expansion of permitted development areas. Restrictions on development should reflect a sound scientific basis and a legitimate regulatory concern. Natural gas drilling can be conducted in a safe and responsible manner when consistently regulated under guidelines based on sound science. We have confidence that after over four years of thorough investigation, New York officials will finalize guidelines that allow permitting of safe development to proceed.
  • A uniform standard for natural gas development. There must be uniform standards for natural gas development implemented by knowledgeable, trained state regulators. New York’s system cannot be distorted by a confusing legal patchwork that impedes private property rights, hinders progress and limits viable economic opportunity.
  • Local moratoriums are graying the lines of where and what types of mineral development will be allowed. Legislation has even been proposed that would allow local municipalities to pass additional regulations potentially at odds with state rules. These are not sound governing principles and impede positive economic opportunities.
  • Redundant and overlapping authority among local governments, state officials, and regional or federal bodies has created a scenario in which the absence of clear authority reduces the potential for economic benefits. Left unaddressed, the current legal uncertainty in New York will continue to impede safe development and take property rights of landowners. These impediments to reasonable development of private property and economic liberties cannot be allowed to stand in direct conflict with our protected rights.
  • Right to pursue economic opportunities for all citizens of our communities. Landowners inherently are the best environmental and economic stewards of our assets. We stand for protection of our rights, including the protection our land, its natural resources, the surrounding environment and our communities’ interests. It has been proven that job creation, not only in gas development, but in a broad array of locally based businesses has followed the safe development of shale gas. Further, that landowners can structure agreements under clear regulatory guidelines that preserve our property rights, minimize land disruption and protect our air and water.
  • Transparency and disclosure by well operators. Industry and regulators alike should disclose all information necessary about activity related to our land and minerals to assure and protect the public. For industry, that means continued disclosure of all additives used in the hydraulic fracturing process and the results of water testing near wells, in accordance with state law.
  • Reasonable protections of our land and water through flexibility in locating wells and well pads. Setbacks from waterways, water wells, and flood plains are reasonable environmental considerations. Landowners want to protect their environment and their communities. Limitations must achieve a commercially viable balance and be based solely on sound science and best practices that reasonably mitigate potential impacts.
  • Arbitrary setbacks and excessive regulations serve no public interest. Overly restrictive setbacks amount to a taking of private property rights and a ban on development. Where setbacks do not halt development outright, they severely limit landowners’ ability to negotiate or dictate the location of well pads on their own property. The adoption of any setbacks by state guidelines should include a sunset clause for their expiration after a reasonable period of time with development occurring free of major incidents of contamination.
  • Property owners deserve the flexibility to negotiate their own commercially reasonable terms with gas developers that protect the best interests of their land. Reasonable flexibility in situating well pads benefits property owners, neighbors, and communities alike.

The basic property rights outlined above will be the standard by which our 70,000 members measure the success of state officials in balancing the rights of property owners with legitimate issues of public concern.
We further encourage our membership, families and businesses in our communities to hold local and state elected officials accountable to these principles by supporting property rights advocates for elected office.

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