JLCNY In the News
Times Herald-Record
Published: 2:00 AM - 03/04/12

BETHEL — Landowners say they could lose millions of dollars for the mineral rights beneath their land when towns like Bethel ban gas drilling.

That's why the Rural Bethel Landowners Coalition has already put the Sullivan County town on notice that it plans to “take legal action” when it bans drilling, says coalition founder Harold Russell, a dairy farmer and former Bethel supervisor who has 111 acres of land he hopes to lease.

“What gives them the right to take it?” asks Russell, standing near one of his red barns.

He says he could have leased his land for $2,500 an acre a few years ago. But he held off to help form the coalition and get a better financial and environmental deal for himself and his fellow landowners who have some 14,000 acres of lease-ready land, much of it in the farms and fields of Bethel.

Like the Sullivan towns of Highland and Lumberland, Bethel plans to soon enact a ban on drilling. Tusten has already passed one.

The legal action that Russell and other landowners are planning doesn't necessarily challenge the types of specific zoning laws banning drilling that were just upheld in two upstate cases.

The landowners simply claim that the government is illegally taking away the use of the mineral rights they own beneath their land.

Even if those drilling bans are ultimately upheld by the higher courts, that “takings” claim would still exist.

That's because a landowner's right to his land is guaranteed by the Fifth Amendment of the U.S. Constitution, says the lawyer for the largest landowners group in the state.

and they don't seem to care.”
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‘Just compensation' at issue

“The Constitution says that private property shall not be taken for public use without just compensation,” says Binghamton's Scott Kurkoski, who represents 15 landowner groups with some 400,000 acres in the Joint Landowners Coalition of New York State.

Local landowners say they want to be compensated.

“On my deed it clearly states that I own the mineral rights,” says Al Larson, also of the Rural Bethel Landowners Coalition. “If you're going to take this away from me, you clearly must reimburse me for those rights.”

The leader of the region's largest landowners group agrees.

Noel Van Swol of Long Eddy, who co-leads the Sullivan-Delaware Property Owners Association with more than 60,000 acres – about 5,000 in Bethel – says that “(legal action) is almost a certainty” if drilling is banned.

“When local owners are losing $5,500 an acre and 20 percent royalties (what he claims they could get for their land), that's a taking. It's something that happens in Venezuela or the Soviet Union. In America, you just can't take people's property.”

But Bethel Supervisor Dan Sturm feels his town is on “solid legal ground” – especially since it's been guided by lawyers who've prepared drilling bans for towns throughout New York.

“We're zoning out an industry that could potentially harm us in the long run,” he says, noting there are still other legal uses to profit from land where drilling is banned.

“I'm not comfortable with the regulations (for drilling) the state has currently proposed. We have to be prudent to protect any potential damages to our land and water.”

Still, corporations that have leased those mineral rights in towns that have banned drilling might also sue to be compensated for those rights, says Dan Fitzsimmons, who heads the Joint Landowners Coalition.

And the lawsuits might happen regardless of whether the gas beneath the land in places like Sullivan County proves to be productive or not.

“We've already put the town on notice a month ago,” says Russell. “We told them we're prepared to take legal action and they don't seem to care.”

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