Judge grants City of Denton’s request to return lawsuit back to Denton County; “That is where the property the state owns and complains about is as well as the citizens who suffer the consequences of the drilling and fracking ban.”

Judge sends fracking case to Denton County by Max B. Baker with contribution by Jim Malewitz, February 20, 2015, Star Telegram
A judge in Travis County granted a request Friday to move the Texas General Land Office’s lawsuit challenging Denton’s hydraulic fracturing ban to a hometown court.

Attorneys for the city of Denton argued that the lawsuit should be heard in a local court.

“It is back where it needs to be in Denton County,” said Terry Morgan, a Dallas attorney who represented the city. “That is where the property the state owns and complains about is as well as the citizens who suffer the consequences of the drilling and fracking ban.”

Morgan said he will ask that the case be sent to state District Judge Sherry Shipman, who is presiding over a similar lawsuit brought by the Texas Oil and Gas Association. Both lawsuits were filed less than 24 hours after the ban was approved by voters in November.

The industry association lawsuit says the ordinance exceeds the limited power of home-rule cities and intrudes on the authority of state agencies, particularly the Texas Railroad Commission, which regulates the oil and gas industry.

The Texas General Land Office filed its suit in Austin, seeking to protect money flowing into the Permanent School Fund. The land office said that it owns land and mineral rights in Denton County and that the ban would deprive it of money it could make from those interests.

Like the Texas Oil and Gas Association, the land office argues that the ban is unconstitutional. The agency is seeking a permanent injunction.

The city has fired back, saying that some activities associated with fracking — such as heavy truck traffic, liquid spills and vibrations —are the kind of public nuisances that cities routinely regulate.

The city also contends it is not usurping the power of state agencies if it takes steps to control activities that have caused “conditions that are subversive of public order.”

Jim Suydam, a spokesman for the land office, declined to comment on State District Judge Tim Sulak decision to transfer the case.

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On October 1, 2012, during a case management call on the Ernst vs Encana lawsuit heard by Justice B.L. Veldhuis, Encana, the ERCB and Alberta Environment (HMQ) requested the case be moved to Calgary for the convenience of the defendants’ lawyers despite the fact that Drumheller is clearly the court with the closest connections to the lawsuit.

Alberta Environment (HMQ): “It clearly tips in favour of the defendants’ position, that it ought to be in Calgary and not in Drumheller”

Glenn Solomon, lawyer for the AER (then ERCB), argued Ernst ought to do the driving, because she is only one.

Encana lawyers argued they would not drive 1.5 hours to Drumheller if the hearing was held there even though the company has a massive office there and endless Encana vehicles drove to Rosebud to perf yet another gas well above the Base of Groundwater Protection near Ernst’s already contaminated water well on the day of the hearing.

Encana’s Drumheller Office

Subsequently, the request to move the hearing to Calgary was granted by Judge Veldhuis and Alberta’s Chief Justice. 

Ernst decided to take a stand to get this wrong corrected. Ernst attended her hearing, where by the court rules it was supposed to be, in Drumheller.

Ernst’s statement to the Calgary Court of Queen’s Bench, was read into the court by Murray Klippenstein, January 18, 2013, heard by Justice Barbara L. Veldhuis:

I wanted to attend today’s hearing, but I decided not to attend because I feel strongly that my lawsuit should be heard in the judicial district of Drumheller as it is the courthouse with the closest connection to my dispute. This is where I live; this is where my water is; this is where coalbed methane wells were drilled; and this is where my water is contaminated. It seems to me that it is important to rural Albertans that disputes and harms that occur in our communities are also judged in our communities. Today’s application is not a minor or merely procedural step – it will determine the core issue of whether a landowner can sue the Energy Regulator for failing to protect rural Albertans from the harmful effects of the oil and gas industry.

I have a lot of respect for the court, and because of this respect, I feel it is important to make my position known. I will continue to request that all major applications be heard in Drumheller with the closest connection to my dispute.

2013 01 18 Jessica Ernst standing for rural Alberta and her water, Drumheller Court House, while hearing taking place in Calgary

Jessica at Drumheller Court, 10 AM, January 18, 2013. Jessica spent the day in the waiting room (after asking permission), with a witness. Main stream media wrongly reported that Ernst watched the proceedings by special live link. Video was not offered or provided to Ernst, requested or the heart of the matter.

The next hearing on April 18, 2014 was back where it belonged, in Drumheller:

Cory Wanless, Jessica Ernst, Murray Klippenstein

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