Judge sends fracking case to Denton County

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 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 voters approved the ban in November.

The association’s 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 income 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.

Denton 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 that 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’s decision to transfer the case.

While Sulak was issuing his opinion, activists who backed the fracking ban were meeting with representatives of the oil and gas industry and others about legislation now being considered by state lawmakers. Rep. Drew Darby, R-San Angelo, the new chairman of the Energy Resources Committee, called the 30 stakeholders together to figure out what role the Legislature may play.

Cathy McMullen, leader of the grassroots Denton Drilling Awareness Group, which brought the ban to voters, said the industry stressed that what it wants is “regulatory certainty.”

“It was good. It was worth the long beating of a trip and hopefully something good comes out of it,” she said.

Jim Malewitz of The Texas Tribune contributed to this report, which includes material from the Star-Telegram archives.

This story was originally published February 20, 2015 at 5:08 PM with the headline "Judge sends fracking case to Denton County."