Article 78 Takings Case
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The Joint Landowners Coalition of New York Is Accepting
 
Donations For A Lawsuit Against New York State

 

Donations are now being accepted by the Joint Landowners Coalition of New York for its lawsuit against New York State for a constitutional taking of our property rights under the United States and New York Constitutions.

Donations for the lawsuit can be made payable to “Landowner Defense Fund” and mailed to

 

JLCNY
 
PO Box 2839
 
Binghamton, NY 13902
 
Attention: Landowner Defense Fund

 

Donations can also be made by credit card by visiting the Landowner Defense Fund PayPal Link on the Left

 

The JLCNY is a 501(c)(6) non profit corporation. Contributions or gifts to the Landowner Defense Fund through the JLCNY are not tax deductible as charitable contributions.

 

Lawsuit Goals
 
The goals of this lawsuit are consistent with the goals of the JLCNY – to protect the constitutionally guaranteed rights of NY landowners and push the State closer to approving the SGEIS and permitting wells in the Marcellus and Utica shales. We believe that moving forward with natural gas development will bring the greatest financial benefit to all New Yorkers, have an immediate impact on climate change, clean our air, dramatically reduce health impacts from air pollution and will allow our nation to come closer to achieving energy independence.

 

Funding
 
The action will not be commenced until the JLCNY has received sufficient funding. We are also closely monitoring the two year moratorium bill passed by the New York State Assembly. We want to add this legislation to the lawsuit if it is passed by the Senate and signed by the Governor.   For strategic reasons, we will not announce our financial goals. However, we will need a large war chest to proceed with the litigation.  All of the funds donated for this effort will be administered by the JLCNY’s bank, Chemung Canal Trust Company (“CCTC”), in a non-interest bearing account.

 

The JLCNY will deduct from the Landowner Defense Fund ongoing expenses incurred for the lawsuit including, but not limited to, fees and expenses for attorneys, experts, accountants and CCTC fund administration (“Lawsuit Expenses”).  Provided that donors have provided accurate identification and mailing information, a proportional share of donations remaining after deduction of the Lawsuit Expenses will be returned to the donors for any donations of $100 or more (*$103.50 or more for credit card donations) when the case is resolved. The balance of donations of less than $100 will be donated to the JLCNY general fund. For example, if a donation of $10,000 is made and the donor’s proportional share of expenses is $1,000, then $9,000 will be returned to the donor. If a donation of $99 is made and the donor’s proportional share of expenses is $50, the balance of $49 will be donated to the JLCNY general fund.  Multiple donations from a single donor will each be treated as a single donation so that a donation of $200 would be eligible for a return of a portion of the unused funds but a second donation of $99 by the same donor would not since it is less than $100.

 

* Pay Pal credit card payments: Pay Pal deducts a transaction fee from each donation and will credit the Landowner Defense Fund with the net balance. In order to be eligible for a return of funds after the case resolution, credit card donations of $100 will need to add $3.50 for a total donation of $103.50.

 

If an appeal is necessary, it will be the beginning of a new fund raising stage. Funds remaining in the initial stage will be used for the appeal stage. If the funds in the initial stage have been substantially depleted, the JLCNY reserves the right to limit reimbursement after the case resolution to the donors making donations in the subsequent fund raising stages. Any appeals to a higher appellate court will commence a new fund raising stage.

 

It is difficult to predict how the case will proceed and how long it will take. The DEC could approve the SGEIS and begin granting permits for HVHF prior to filing the complaint, soon after filing or after protracted litigation and discovery. The JLCNY is committed to proceeding with the lawsuit until the State authorizes HVHF permits or until a court gives us a ruling in our favor, whichever comes sooner.

 

In addition to landowner support, financial support from other stake holders will be necessary.  The JLCNY is seeking support from other businesses and organizations that believe, as we do, that natural gas development in New York is crucial for our economy, our environment and our energy security.

 

Why Not a Class Action?
 
A number of people have asked whether this will be a class action or an action that will involve hundreds of landowners.  While we would like to include a large number of plaintiffs in the action, the economic reality is that numerous plaintiffs would make the action too costly to prosecute.  Each property will require experts to value the mineral rights and economic loss. We expect expert witness fees to be in excess of $100,000.00 with just a few plaintiffs in the action.  A large number of plaintiffs would cost millions of dollars in expert witness and attorneys’ fees.

 

Circumstances Have Changed
 
Landowners have been asking the JLCNY to commence this lawsuit for over two years. Until now, delay by itself was not enough to commence the claims. But, circumstances have changed. It is widely recognized that the SGEIS and the regulations have been completed.  The SGEIS was prepared to be released on or about Labor Day 2012.  The decision to further delay the release of the SGEIS was the Governor’s decision entirely based upon politics, not science.  New York started a new health review even though the Department of Health had already completed a 2012 health review and found that there were no health impacts from the process of hydraulic fracturing.  New York’s dysfunction was further exemplified by Ohio which completed its HVHF regulations in 8 months and Illinois which was able to draft HVHF legislation in just 14 months with collaboration among landowner, environmental and industry groups.

 

Ideal Plaintiffs

  • The lawsuit will primarily focus on landowners who own only the sub-surface mineral rights - and do not own the surface.  The purpose of this strategy is to bring the best claims under existing law on takings in order to establish legal precedent. The owners of sub-surface oil and gas rights have no use for their property other than exploration and development of oil and gas.
  • We have also sought landowners who were under a lease where their company applied for a Marcellus or Utica Shale drilling permit but the company was unable to proceed because of the State’s actions.
  • We have focused our efforts on the core regions of the Marcellus and Utica shales where there is little or no activity in other formations.  The viability of the Herkimer, Oneida and Trenton Black River formations leave us open to arguments that the property has other economic values and can be drilled by conventional means, unlike the Marcellus and Utica shales.
  • We have sought properties in the Susquehanna River Basin as opposed to those in the Delaware River Basin.  For this first action, we do not want the DRBC’s failure to promulgate rules to be a defense to our lawsuit against the State.

 

The Law
 
The takings claims will be brought under the 5th Amendment of the U.S. Constitution and Article 1, § 7 of the New York State Constitution. The claims are predominantly controlled by the law in two cases: Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978).

A “Lucas” taking is regulation that denies all economically beneficial or productive use of land. It is a per se taking where the determination is made without regard for the government’s justification. You must show a “complete elimination of value” or it does not qualify.

Absent a permanent deprivation of all value of the property, a “Penn Central” taking is governed by a fact-specific balancing test considering the following: 1) the economic impact of the regulation; 2) the extent to which the regulation has interfered with reasonable investment-backed expectations; and 3) the character of the governmental action.

Takings claims are difficult claims to make against the government.  A landowner who claims that land regulation has effected a taking of his property bears the heavy burden of overcoming the presumption of constitutionality that attaches to the regulation and of proving every element of the claim.

We are evaluating many legal theories which could be alleged against the State in order to increase our opportunity for success. Those theories include, but not are limited to, temporary or de facto takings, equal protection, civil rights violations and declaratory judgment relief based upon the unconstitutionality of the State’s conduct.

We have been speaking with national experts on the relevant law and the facts of our case. We intend to consult with these experts prior to filing our complaint, assuming sufficient funding has been received.

 

 

Our national leaders agree that we must move forward with development of our natural resources.

 

President Barack Obama

“In the meantime, the natural-gas boom has led to cleaner power and greater energy independence. That’s why my administration will keep cutting red tape and speeding up new oil and gas permits.” . . . .“we produce more natural gas than ever before – and nearly everyone’s energy bill is lower because of it. And over the last four years, our emissions of the dangerous carbon pollution that threatens our planet have actually fallen.” President Barak Obama 2013 State of the Union Address

 

 

Former Secretary of State Hillary Rodham Clinton

“That means we are less reliant on imported energy, which strengthens our global political and economic standing and the world’s energy marketplace.” “So protecting our own energy security calls for us to make progress at home and abroad. And that requires American leadership.”Secretary of State Hillary Rodham Clinton, Energy Diplomacy in the 21st Century,Georgetown University, October 18, 2012

 

NYC Mayor Michael Bloomberg

"It is up to the governor, but I personally have said we should be fracking, not in the watershed, but we should be fracking. … About 13,000 people get killed every year by the pollutants from coal-fired plants. … [Also, as] Boone alluded to, getting oil from outside this country is expensive and it transfers our wealth to people who are trying to destroy our lives. … Of all the things we can do, natural gas isn't perfect, but it certainly looks like it can make this country energy-independent and reduce dramatically the pollutants going into the air," NYC Mayor Michael Bloomberg,  SNL:New York should start fracking, say T. Boone Pickens, Michael Bloomberg, February 21, 2013, http://www.snl.com/InteractiveX/article.aspx?CDID=A-17037268-12588&KPLT=8

 

We truly hope our leaders in Albany will agree that it is time to move forward with natural gas development in New York.  But, until New York moves forward, the JLCNY is committed to protecting the constitutionally guaranteed rights of New York landowners.

 

Our team of attorneys is dedicated to filing this lawsuit as soon as possible. If you have questions or comments about the lawsuit, please contact:

Levene Gouldin & Thompson, LLP
 
Attn: Scott R. Kurkoski, Esq.
 
P. O. Box F-1706
 
Binghamton, NY 13902
 
607-584-5620
 

 

 

Questions or comments about fundraising should be directed to my attention at:

Dan Fitzsimmons
 
This email address is being protected from spambots. You need JavaScript enabled to view it.

Thank you for your assistance with this important endeavor.

Warm Regards,
 
Dan Fitzsimmons, President
Joint Landowners Coalition of New York, Inc.

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