Range Resources and Lipsky Frack Suit Should Be Reheard, Appeals Court Says

Gas Co.’s Fracking Defamation Suit Sent Back To Trial Court by Dan Prochilo, April 2, 2013, Law360
A Texas appeals court on Monday halted its review of Range Resources Corp.’s defamation suit against two homeowners in a hydraulic fracturing dispute, saying a new trial court judge should get a chance to hear the homeowners’ argument for dismissal after the initial judge was replaced. The Texas Second District Court of Appeals said it was required to give Judge Craig Towson — who took over for the judge who declined to dismiss the case, Judge Trey Loftin — an opportunity to re-examine his predecessor’s decision….

Range Resources frack suit should be reheard, court says by Bloomberg, April 3, 2013, Fuelfix
Range Resources Corp. (RRC)’s lawsuit against Texas landowners who accused it of fouling their water by hydraulic fracturing should go back to the trial court, a state appeals court said after the judge who originally let the case proceed stepped down from the bench. … “The court must abate the proceeding to allow the successor to reconsider the original party’s decision,” the Texas Second District Court of Appeals said in a letter yesterday.

The appeals panel had been considering whether Loftin ruled properly last year when he found that a state law that bans litigation meant to stifle public protest didn’t bar Range’s lawsuit. Landowners Steven and Shyla Lipsky sued Fort Worth-based Range in June 2011 in state court after the U.S. Environmental Protection Agency issued an administrative order saying the gas driller was responsible for contaminating their water with dangerous levels of methane and benzene, which can cause cancer.

Range countersued, alleging in court papers that the couple and a consultant, Alisa Rich, conspired to persuade the EPA to intervene. The company is seeking $3 million in damages. Rich and the Lipskys asked Loftin to throw out the countersuit on the ground that it violated a Texas law prohibiting so-called Strategic Lawsuits Against Public Participation, or SLAPPs. Loftin rejected that argument in February 2012 and the case was appealed. The appeals court ruled in August that it lacked jurisdiction to overturn Loftin’s ruling. The appeals panel instead said it was would hear a petition for mandamus, an order blocking the lower court from enforcing Loftin’s ruling. That matter has been pending before the court.

Matt Pitzarella, a spokesman for Range, said in an e-mail that the company is still considering the court’s question. “But we’re confident that regardless of who considers the issue, the ruling by Judge Loftin is correct and Range’s claims, based on the false allegations against it, should proceed to a trial,” he wrote. Pitzarella said that state regulators determined Range neither caused nor contributed to the methane in the Lipsky couple’s well and the EPA withdrew its order and lawsuit against the company. … Pitzarella said naturally occurring methane is well- documented in the aquifer in question, “which is why the local municipal water authority has ‘flammable’ signs at their facilities.” He said the Lipskys’ next-door neighbor had a six- foot flame shooting from his water well when it was drilled several years before Range drilled its wells. [Emphasis added]

Range Resources Frack Suit Should Be Reheard, Court Says by Tom Korosec, April 2, 2013, Bloomberg
Range Resources Corp. (RRC)’s lawsuit against Texas landowners who accused it of fouling their water by hydraulic fracturing should go back to the trial court, a state appeals court said after the judge who originally let the case proceed stepped down from the bench. An appeals court in Fort Worth said that a new judge had replaced Judge Trey Loftin of Weatherford, Texas. “The court must abate the proceeding to allow the successor to reconsider the original party’s decision,” the Texas Second District Court of Appeals said in a letter yesterday. Judge Craig Towson took the bench in January after beating Loftin in a May primary and winning the general election in November. The appeals court said that it would not send the case to Towson if the judge and both sides agree by April 11 to let the appeal go forward.

The appeals panel had been considering whether Loftin ruled properly last year when he found that a state law that bans litigation meant to stifle public protest didn’t bar Range’s lawsuit. Landowners Steven and Shyla Lipsky sued Fort Worth-based Range in June 2011 in state court after the U.S. Environmental Protection Agency issued an administrative order saying the gas driller was responsible for contaminating their water with dangerous levels of methane and benzene, which can cause cancer. Range countersued, alleging in court papers that the couple and a consultant, Alisa Rich, conspired to persuade the EPA to intervene. The company is seeking $3 million in damages. Rich and the Lipskys asked Loftin to throw out the countersuit on the ground that it violated a Texas law prohibiting so-called Strategic Lawsuits Against Public Participation, or SLAPPs. Loftin rejected that argument in February 2012 and the case was appealed. The appeals court ruled in August that it lacked jurisdiction to overturn Loftin’s ruling. The appeals panel instead said it was would hear a petition for mandamus, an order blocking the lower court from enforcing Loftin’s ruling. That matter has been pending before the court. Brent Rosenthal, a lawyer for the Lipskys, said in an interview he hadn’t decided whether to agree to waive reconsideration by the trial court. “There are all sorts of angles in this,” he said. “Each side has veto power on that decision.” Matt Pitzarella, a spokesman for Range, didn’t immediately respond to an e-mail seeking comment on yesterday’s court filing. Range alleged in court papers that the Lipsky couple and Rich engaged in a conspiracy to defame the company and used false and misleading evidence as “a pretext for getting the EPA and the media to wrongly label and prosecute Range as a polluter of the environment.”

The EPA case is U.S. v. Range Production Co., 11-cv-00116, U.S. District Court, Northern District of Texas (Dallas). The case in Texas state court is Lipsky v. Durant, 11-cv-0798, 43rd District Court of Texas, Parker County. The appeal is In re Steven and Shyla Lipsky and Alisa Rich, 02-12-00348-cv, Court of Appeals, Second District of Texas. [Emphasis added]

[Refer also to:

Range Resources, Texas Fracker, Accused of Bully Tactics

Welcome to Steve Lipsky’s nightmare: Flaming well water “This has been a nightmare,” he said. “I would not wish this on my worst enemy.”

Source: Hydraulic Fracturing turns gardenhose to flamethrower by TXsharon, January 24, 2013
Range Resources hydraulically fractured a Barnett Shale gas well in Parker County, Texas. Shortly after that methane was found in nearby water wells. An EPA study found thermogenic gas in the water well that matches the fingerprint of the gas in the Range Resources recently fracked well.

Groups Urge EPA to Resume Legal Action in Range Fracking Water Contamination Case

Ed Rendell Intervened For Oil Company to Stop EPA Contamination Case Against Range Resources

Lipsky Methane Contaminated Water Case, Range Resources and EPA changed course after Range protested

Fight Over Fracking and Flaming Water in Parker County Hits Snag in Appeals Court

Range Wins Appeal In Suit Against Texas Landowners

Texas Judge Steps Aside in Gas Case He Used in Campaign

How One Man’s Flaming Water Fired Up a Battle Between Texas and the EPA, Steve Lipsky’s epic battle and what it means for the future of fracking ]

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