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May 5, 2014

Holdout property owners file for injunction

NEW CASTLE — Holdout landowners are asking Commonwealth Court to declare that forced pooling violates the state constitution.

Attorney Omar K. Abuhejleh of Pittsburgh said he filed a petition late Friday, asking for declaratory judgment and preliminary and permanent injunctions against use of the 1961 Oil and Gas Conservation Law as the basis for trying to force landowners to sign leases.

He said he plans to file today for a stay which would put the forced pooling hearings on hold until their constitutionality is decided.

Abuhejleh states in his complaint that Hilcorp Energy Company’s application for forced pooling “is an attempt at fitting the proverbial square peg in a round hole because the Conservation Law was never intended for horizontal drilling.”

He further states that if the gas drilling company “simply directs the bore around the properties of non-participating owners, there will be minimal, if any, drainage of gas from the shale formations underlying those property owners’ lands.”

He adds, that if the property owners “...value their clean water over the economic benefits of royalty payments, they certainly should not be forced to forego that choice.”

The surprise case filing on the unconstitutionality of the law itself came on the heels of a delay in hearings, which had been set for this Wednesday and Thursday. The hearings were to decide whether Hilcorp could use the law to force several holdout landowners to allow oil and gas drilling under their land.

The delay was announced Friday to give Abuhejleh time to prepare a case since he was retained by three of the holdout landowners — Martin and Suzanne Matteo, Robert and Carole Valentine and Steve Emery, all of Pulaski Township — less than two weeks ago. The landowners also won permission last week to formally intervene in the case, making them parties to the action, along with Hilcorp and the DEP.

Abuhejleh is asking that: the Conservation Law be declared an “unconstitutional taking” and an improper exercise of the eminent domain power; that it be repealed insofar as it is inconsistent with the Property Rights Protection Act; that as applied to the facts of this case, is a violation of the petitioners’ procedural due process rights; it is “unconstitutionally vague, as applied to the facts of this case; and that its dual purpose of preventing waste and protecting correlative rights does not apply to horizontal drilling.”

He also wants a preliminary injunction halting the proceedings on Hilcorp’s application and a permanent injunction forbidding the DEP to accept any more applications for horizontal drilling into shale formations under the Conservation Law.

He states that the landowners will be “significantly irreparably injured by enforcement of the Conservation Law as it will forever alter their rights in the properties where they live.”

(Email: grzebieniak @ncnewsonline.com)

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