Give and take

In a recent presentation to the Upper Delaware Council (UDC), Noel van Swol, co-founder and president of the Sullivan-Delaware Property Owners Association (SDPOA), an organization of property owners interested in signing natural gas drilling leases, declared that by describing gas drilling as an “incompatible use” in the river corridor, the UDC could be seen as engaged in “wrongful taking.”

To begin with, the UDC’s words have no legal force, so it can talk all it wants to without taking anything from anybody.

Secondly, “incompatible use” in this case means specifically incompatible with the mission of the Upper Delaware Scenic and Recreational River as stated in the Organic Management Act of 1916, which is “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” That natural gas drilling is in this sense incompatible is an obvious truth. The only question is whether we should do anything about it.

On that question, van Swol has a point. To tell landowners who might be able to make hundreds of thousands or millions of dollars on their land that they are forbidden to do so would be a form of financial deprivation. Nor can this always be simply dismissed as greed. There are plenty of farmers out there, for instance, in debt, unable to pay medical bills, without hope of retirement, for whom it would be especially harsh to take away what could be their last chance out of a deep hole.

But we also think that the issue of what a wrongful taking might be in the case of gas drilling, and who might be doing it to whom, is a lot more complicated than van Swol makes it appear. If landowner A leases his land, so that the neighborhood is overrun with drilling equipment, noise, lights and constant heavy vehicle traffic on the adjoining roads, and landowner B’s property drops 50 percent in value as a result, it might not be a “wrongful taking” in the strict legal sense of that term—but it is certainly so in the name of justice, and as such may well be subject to civil litigation.

Van Swol objects to the possibility that some action might prevent him from increasing his wealth; shouldn’t taking action that decreases someone else’s wealth be considered at least equally harmful?

Nor is money the only good of which one can deprive people. If landowner A’s neighbors’ wells are contaminated, if they or their livestock or their pets become ill or die, would not that also be considered a wrongful taking— one even more serious than depriving someone of prospective wealth?

Mayor Calvin Tillman of natural gas drilling town DISH, TX feels that something else has wrongfully been taken from his constituents: their civil rights. The drilling companies initially came into DISH with stories about how inconspicuous and harmless their operation would be; now their facilities and operations are overwhelming the area and the townspeople can’t do anything to stop it. “It seems as though there is little we can do to stop the constant violation of our civil rights. How is it that a for-profit company can decide that we here in DISH are the ones whose property becomes worthless…? I foolishly thought that we had protections from these assaults, left to us by the founding fathers. I don’t recall the story in the history books that told of the for-profit company who could destroy your way of life, your property rights, and quite possibly your health….”

At the very least, we would like the property owners who would see it as a wrongful taking if they were prevented from leasing their properties to recognize that the sword cuts both ways. If the government should tell them they can’t sign gas leases under any circumstances (which it hasn’t), perhaps it would be a wrongful taking and they would have a right to sue. But would they be willing to concede that if the aquifer is destroyed, if habitat fails, if surrounding property values fall, if people fall ill, that the people damaged should have just as much of a right to sue them?

At the end of his presentation, van Swol spoke of “compromise.” It’s not a bad idea. But it doesn’t mean giving SDPOA everything they want, down to telling the UDC that it can’t call a spade a spade. It means two sides sitting down and recognizing that they are going to have to give as well as to take. Threatening to sue a party whose words are powerless to constrain you for daring to state an obvious truth is not a good beginning.

Dr. Punnybone

Planning a Head