Shepstone Management Company, Inc.
The Community Environmental Legal Defense Fund (CELDF) may have finally committed harakiri. Court sanctions could put this genie in a bottle and cork it.
Few fractivist groups are more detestable than the Community Environmental Legal Defense Fund or CELDF. It’s really not a fractivist group, in fact, but a bunch of spoiled brat revolutionaries intent on throwing out our Constitution and substituting some Marxist system that puts them in charge of everything. It latches on to whatever radical cause will float that boat at the moment and rides it until the next issue comes along. It’s gotten away with it for years due to underserved tax-exemption as a “charity,” which has allowed it to capture big money from wealthy foundations with radical agendas.
The CELDF has also benefitted by a tolerant society (which it dearly desires to destroy) that has tended to view the group has a harmless bunch of kooks. That may be coming to an end as one company has finally risen to the occasion to take on the group and expose them for what they are – very dangerous kooks intent on bankrupting communities and upending our legal system to get their way.
That company is Pennsylvania General Energy Company, LLC (PGE) and it is represented by the Babst Calland law firm, which some readers will recall also was involved in this case, as well as this one and this one, too. The background story is told here in a nice summary by another excellent law firm, BakerHostetler.
It’s about Grant Township, Indiana County, Pennsylvania (see topo map above showing several strip mines), which was enticed by the CELDF to adopt one of its “Community Bill of Rights” ordinances in a foolish attempt to thwart the development of some injection wells by PGE. PGE then took the township to Federal Court and won big-time, which was followed by an arrogant (to say nothing of ridiculous) motion for reconsideration by Grant Township, authored, of course, by the CELDF:
The court agreed that the Ordinance overstepped Grant Township’s authority, as granted to it by the Pennsylvania legislature under the state’s Second Class Township Code. It held:
– Because Sections 3(a) and (b) of the Community Bill of Rights Ordinance were enacted without legal authority in violation of the Second Class Township Code, these Sections are invalid;
– Because Sections 3(a) and (b) of the Community Bill of Rights Ordinance are exclusionary in violation of Pennsylvania law, they are invalid;
– Because Sections 4(b) and (c) of the Community Bill of Rights Ordinance were enacted without legislative authority in violation of the Second Class Township Code, these Sections are invalid;
– Because Section 5(a) of the Community Bill of Rights Ordinance is preempted by the Limited Liability Companies Law, this Section is invalid;
– Because Sections 5(a) and (b) of the Community Bill of Rights Ordinance are preempted by the Second Class Township Code, they are invalid.
…After entry of this order, the case was set to continue to determine to what damages PGE may be entitled; however, on October 26, 2015, Grant Township filed its Motion for Reconsideration of the October 14, 2015, order. The crux of its Motion is as follows:
Grant Township submits that the Court erred (1) in failing to expressly rule on whether the people of Grant Township have an inalienable and constitutional right of local community self-government, and (2) by omitting consideration of the Pennsylvania Constitution’s Environmental Rights Amendment as an independent legal basis for the Community Bill of Rights Ordinance.
Babst Calland attorneys wrote to Tom Linzey, the big kook at the CELDF who’s never had a real job and proceeded with this entertaining gig immediately upon graduating from law school, warning him they weren’t going to stand for any more of this nonsense and would be demanding court sanctions against his organization if he did not withdraw the motion. That was on December 2, 2015, and, of course, Linzey – ever intent upon martyrdom – did nothing. So, a formal motion for sanctions has been made, and it makes for some good reading and provides hope the judge in this case will finally end the CELDF charade so well presented in this speech by Linzey himself (watch for a minute or two and you’ll see what I mean).
The motion speaks for itself and you can read the whole thing here, but check out these excerpts (emphasis added and extraneous references deleted):
CELDF and its attorneys knew or should have known that Grant Township’s legal claims and defenses would not succeed and were well beyond reasonable arguments to modify existing law.
CELDF and its attorneys have a duty to analyze the legal legitimacy of the claims, yet CELDF has conceded in numerous forums that Grant Township’s claims and arguments are not warranted under existing law.
For example, in the pleadings filed in this matter, CELDF and Grant Township have admitted the following: a. In Grant Township’s Brief in Support of its Motion for Judgment on the Pleadings (“Brief in Support”), Grant Township asserted that it “understands that arguments in later sections of the brief raise issues related to what may be considered ‘well-settled’ law.”
Grant Township alerted this Court that it sought relief that is contrary to the law and asked this Court to render a decision against well-settled legal precedent. With respect to the long-standing limits on local governments, Grant Township made the following startling admission:
“Community lawmaking as the legitimate exercise of self government by people where they live has generated mostly critical, occasionally derisive treatment form legislators, jurists, and commentators since the time of the founding. Consistent with this attitude, American jurisprudence has developed legal doctrines to infringe the right of local, community self-government, both by denying it outright, and by severely restricting local governmental power allowed for communities by state law. Such doctrines include corporate constitutional ‘rights,’ Dillon’s Rule, and preemption.”
Grant Township has further admitted that for “the past 150 years, the judiciary has ‘found’ corporations within the U.S. Constitution and bestowed constitutional rights upon them.” With respect to Dillon’s Rule, Grant Township admitted that “Pennsylvania jurisprudence has long applied Dillon’s Rule to subordinate municipal corporations to the state, and continues to do so today.” Lastly, Grant Township admitted that it is trying to change the landscape of federal constitutional law and Pennsylvania state law:
“By enacting the Community Bill of Rights Ordinance, the people of Grant Township decided that the existing municipal system of law – constrained by precisely the same legal doctrines asserted against the Township by PGE in this action – was failing to provide the most basic constitutional guarantees of American governments.”
Grant Township and CELDF recognize and admit that their arguments are contrary to current law, and that to succeed, they must modify the form of government in the United States and Pennsylvania and reverse decades-long precedent.
Moreover, CELDF has conceded publicly on multiple occasions that Grant Township’s claims are against existing precedent and that Grant Township is essentially seeking to alter our country’s structure of government, or that civil disobedience might be appropriate conduct since the legal positions of CELDF have been consistently rejected by the courts. Most recently, counsel for Grant Township encouraged active civil disobedience because CELDF was not able to successfully use the legal process to stop natural gas companies. Specifically, CELDF encouraged its followers to seek to stop projects,
“And that means, I think, successive days. It means rotating people through. It means bringing people in from other places. It means filling up jails.”
CELDF continued as follows:
I mean, our resistance has to ratchet up, the opposition has to ratchet up our stuff to a point where it’s actually actively interfering with these projects, because if you don’t do that and you rely entirely on the legal process and the legal process is so stacked against you in terms of what municipalities can and can’t do, that at that point you have no other option but to engage in that type of action.
CELDF was quoted in a November 15, 2015 article from The Athens News titled “Anti-fracking figure makes case in Athens.” In the article, counsel for Grant Township discussed the substantive legal issues underlying Grant Township’s claims and made the following concessions:
The U.S. Constitution, [Tom Linzey] argued, is based heavily in Colonial-era English common law—and that law helped turn the U.S. into an industrial powerhouse. Linzey said the Constitution gives corporations the same legal rights it gave European colonizers: the power to impose on local populations and make use of local resources, without local residents’ consent. That means it’s legally within corporations’ rights to sue any group that prevents them from exercising their constitutionally guaranteed privileges. “Corporations are persons under the law,” Linzey said. “If you tell them they can’t use the permit, then you’re depriving the corporation of their property, because corporations are persons under the law. They have the same protections we do.”
In a press release by the CELDF regarding the attempt by Grant Township to avoid this Court’s ruling in its October 14, 2015 Memorandum Opinion, CELDF admits that
“They are mobilizing against a system of law that empowers corporations over communities, and empowers government to preempt communities from protecting their air and water. Communities are saying this is not acceptable, it’s not sustainable, it’s not democratic, and it’s going to change.”
In a description of the concept of a community bill of rights, CELDF openly concedes that a community bill of rights is designed to pursue “the supremacy of inalienable rights over other laws” and that “there are well- established legal barriers to the exercise of the right to local self- government.”
In perhaps the most honest explanation by CELDF of its goals and willingness to ignore the law, in connection with this matter and the Pennsylvania Department of Environmental Protection’s decision to wait for this Court to rule on the validity of the Ordinance before rendering decisions on permit applications, Attorney Linzey is quoted as saying:
“The reason why these ordinances are surfacing is because people have given up hope that the state is going to do anything for them. People have given up, they’re done. And it’s a new kind of activism that’s emerging that says screw you, we’re going to make laws ourselves.”
In addition, CELDF recognizes that by taking positions that are contrary to law, it places it clients at risk of significant adverse money judgments. In that vein, Attorney Linzey is quoted as saying that:
“And if a town goes bankrupt trying to defend one of our ordinances, well, perhaps that’s exactly what is needed to trigger a national movement.”
CELDF has taken the position that:
“Our belief is that these communities don’t have a fracking problem, they have a democracy problem.”
“Our premise is that you can’t win against the oil and gas industry using the existing legal structure, so the structure needs to be changed.”
CELDF’s position on its legal claims and defenses is clear. CELDF wants to make laws itself, knowing that what it seeks to do has no legal support and has been regularly rejected. It is equally clear based on their admissions that CELDF and its attorneys do not intend to stop their repeated effort to ignore existing and well-founded law. This is the very kind of behavior that Rule 11 was designed to address.
Grant Township’s Answer, Affirmative Defenses, Counterclaim and Motion for Reconsideration violate Rule 11 because they are not warranted by existing law or a nonfrivolous modification of the law. Grant Township and CELDF are trying to amend the United States Constitution and completely overhaul the structure of government in this country. As Judge Schwab admonished in the Rouse case, litigation is not a platform to advance unsupported conclusions.
Given the lack of legal merit and the nonexistent likelihood of success on its claims, Grant Township’s continued pursuit of its legal claims and defenses is based on the improper purpose of harassing PGE and running up PGE’s legal fees in order to make a statement and gain publicity in support of CELDF’s mission.
That about says it all and it’s very well said. Let’s hope the judge agrees and gives the CELDF what it wants – martyrdom. Enough is enough. Put this evil genie back in the bottle and cork it.