American Oil and Gas Reporter - March 2016 - 84

ConventionSection: Pennsylvania Independent Oil & Gas Association
and liability, originally set for March 7,
has been delayed until May 16, he reports.
By then, Moody says he hopes the judge
will have decided on several motions for
summary judgment PGE and the township
have filed.
The rationale in Grant Township's fillings claim is that it has a right to local
self-government, which it terms a fundamental right that trumps state and federal
laws, Moody says. In the Nov. 4 elections,
township residents voted to replace the
community bill of rights ordinance with
a home rule charter that contains the
same provisions, he says.
"PIOGA contends that does not change
anything," Moody indicates. "The judge's
motion for judgment is based on state
law grounds, including the second class
township code under which the ordinance
was adopted. Grant Township says that
after it adopted the home rule charter,
the ordinance is gone, and so that ruling
does not apply because it is a home rule
charter, like a local constitution. It is
such a ridiculous and bizarre position
because our state constitution places essentially the same restrictions on home
rule communities."
Among PGE's filings is a request that
the court require the township and CELDF
to pay attorney fees and expenses because
their defense of their actions constitutes
frivolous conduct-with no basis in law
nor a good-faith basis for a reasonable
extension of law, Moody says.
"The township wants the court to
decide a political question, and the court
simply cannot do that," he suggests. "The
courts also lack any power to change or
rewrite the state or federal constitutions,
which is what the township needs for its
asserted right to supreme local self-government. This is not about interpreting
the constitution, which judges could do."
Frivolous Pursuit
Moody says CEDLF acknowledges
its stance includes the need to rewrite the
Pennsylvania Constitution and the U.S.
Constitution.
"The Grant Township bill of rights
has a section that says the ordinance is a
request for amending the state and federal
constitutions to acknowledge this selfgovernment right," he points out. "That
is internally inconsistent. It enacts an ordinance that it says is based on the existence of this right, yet there is a provision
that says the constitutions must be changed
to recognize that right."
84 THE AMERICAN OIL & GAS REPORTER

PGE argues the U.S. Constitution does
not provide that right, and Moody says
PIOGA's legal brief extends that reasoning
to the Pennsylvania Constitution, and
also argues that the way the township
and CELDF have proceeded is not a
lawful way to amend the constitutions.
"If the court accepts that argument,
that provides the basis for sanctions
against CELDF, because if the judge
rules this right has no legal basis, and the
township is asking the court to do something through litigation that the court
simply cannot do, that is the very definition
of frivolous," he states.
A motion favorable to PGE could be
the beginning of the end for CELDF, especially in Pennsylvania, Moody holds.
"It would be a federal court decision, applying both Pennsylvania and federal law.
That should put any reasonable organization on notice to stop these actions or
face significant financial penalties."
In addition to threatening CELDF's
finances directly, Moody says an adverse
legal decision could influence the large
organizations funding the group with
multimillion dollar donations. "This should
send a message to those organizations
that they shouldn't be trying to accomplish
what they want in this unlawful manner,"
he poses.
Moody adds that although a legal
defeat also will leave the township with
hundreds of thousands of dollars in legal
fees, he doesn't expect PGE to pursue
those costs.
"That is part of the problem with all
this. The township knows PGE wants to
be a good neighbor and corporate citizen,"
he says. "That is why these local governments continue to press these things, because in none of the municipalities where
these ordinance have been thrown out
has a company pressed to actually bankrupt
these municipalities."
State Forest Plan
Pennsylvania's attempt to control the
mineral estate on state forest and park
lands also continues to be a legal problem
for PIOGA, Moody indicates. The Pennsylvania Department of Conservation and
Natural Resources issued a draft state
forest resource management plan late last
year, and PIOGA joined other trade associations in submitting comments.
He says one of the several legal flaws
in the draft plan is the state's failure to
acknowledge the Pennsylvania Supreme
Court's 2009 decision in Belden & Blake

v. DCNR, which affirms the supremacy
of the mineral estate over the surface
estate in a split-estate situation, Moody
says.
"Just because it owns the surface, the
commonwealth cannot require unreasonable measures from the subsurface owners.
The report does not acknowledge that,
and PIOGA submitted comments that
supplemented PGE's saying that DCNR
should acknowledge that decision because
it cannot unilaterally tell the industry it
has to do this or that just because the
commonwealth is sovereign," he says.
PIOGA also points out the draft plan
supports the legitimacy of Governor Tom
Wolf's moratorium on developing oil and
gas resources in state parks and forests,
Moody indicates. In this respect, he says
DCNR ignored a Commonwealth Court
decision issued late in 2015-a few weeks
before Wolf's moratorium-that rejected
then-Governor Tom Corbett's authority
to modify a similar prohibition by his
predecessor, Governor Ed Rendell.
According to the court decision, the
DCNR secretary, not the governor, holds
authority to manage oil and gas development on state parks and forests.
The third legal issue PIOGA's comments highlight involves the Pennsylvania
National Diversity Index, he says. The
draft report continues the Department of
Environmental Protection's use of the
term "species of special concern" in discussing endangered and threatened species,
and PIOGA continues to assert that the
term is imprecise and is not a substitute
for the statutory term "critical communities."
"There is no category of species of
special concern. That is a description of
all species: threatened, endangered, candidate, rare, whatever you want to call
them," Moody says. "Trying to say there
are some subcategories of protected species
represented by this description is just
wrong."
❒

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American Oil and Gas Reporter - March 2016

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