Local Attorney Files Protest To Keep Proposed Fracking Ban Off Ballot

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A local attorney has filed a protest with the Athens County Board of Elections on behalf of seven Athens residents objecting to an initiative that is to appear on the November ballot to ban oil and gas extraction and associated practices in the city of Athens.

The protest was filed on Friday by Robert Rittenhouse of Lavelle and Associates on behalf of Eleanor Barstow, Peter Couladis, Michael Hunter, Carl Denbow, William Lavelle, and Patricia and Roger Grueser. Rittenhouse told The Messenger that the residents he’s representing are hoping to stop the initiative in its tracks before it makes it to the ballot — costing taxpayers money to vote on a law that the city’s law director’s office has no intention of enforcing.

Rittenhouse’s employer, Lavelle and Associates, has been working with area landowners to negotiate leases for oil and gas drilling in the county.

Last month, the Athens County Board of Elections certified the ballot initiative by the Athens Bill of Rights Committee to be placed on the November ballot. The initiative would ban shale oil and gas extraction and associated practices — such as injection wells — inside the city limits and the city’s jurisdiction.

The protest filed by Rittenhouse lists four main reasons for the objection of the initiative. First, the protest states that the initiative seeks to have an election to administer Ohio Revised Code Title VII, Chapter 743, Section 25, which the city already has the power to enforce. The section of the ORC authorizes any municipality to prosecute water supply polluters upstream to a distance of 20 miles.

“Administrative actions are not subject to initiatives, and thus the Athens County Board of Elections should prohibit this petition from being placed on the election ballot,” the protest states.

Secondly, the protest states that the language of the BORC petition is misleading and will result in elector confusion. This objection is based on the broad definition of “shale gas” in the initiative, which is “any gaseous substance, either combustible or noncombustible, which is produced in a natural state from the earth and which maintains a gaseous or rarified state at standard temperature or pressure conditions, and/or gaseous components or vapors occurring in or derived from petroleum or so-called ‘natural gas.’”

Rittenhouse states that the misleading definition of shale gas further attempts to prohibit the distribution of natural gas by utility companies through pipelines that run to residences located within the city limits of Athens as well as within 20 miles of its corporate limits.

Thirdly, Rittenhouse states that the initiative would actually serve as a referendum on sections of the city’s wellhead protection plan, which provides a grandfather clause for existing oil and gas wells, facilities, storage tanks, injection wells and pipelines located within the city’s wellhead protection area. The BORC initiative seeks to repeal all sections of prior laws of the city that are inconsistent with the proposed initiative, which means these grandfathered wells would have to be removed. Rittenhouse states that referendums are required to be filed within 30 days of the ordinance’s adoption, which in this case would be the city’s wellhead protection ordinance that was adopted in 2009.

Lastly, Rittenhouse’s protest states that the BORC petition includes precatory language that has no legal authority. The protest says that Section 4 of the BORC petition entitled “Rights of Athens Residents and the Natural Environment” contains merely precatory language. The protest also claims that the BORC petition attempts to set penalties for violations of Section 5 of the petition, which is not illegal under state law.

The BORC petition also calls for a change to the state constitution to recognize and enforce the right to local community self-government and that “such changes shall also elevate the rights of the community above the legal privileges and protections afforded to corporations.”

Rittenhouse said the call for constitutional change “merely calls for a public opinion poll of the electors of the city of Athens, and is inappropriate for a petition.”

Rittenhouse also cited a 1967 decision by the Ohio Supreme Court in which the Lake County Board of Elections was not permitted to place a resolution on the ballot stating that the President of the United States should bring all American troops home from Vietnam so that the Vietnamese people can settle their own affairs.

The protest filed with the elections board calls for the board to conduct a hearing and refuse to certify the BORC issue for the fall election ballot.

On Monday, Athens County Board of Elections Director Debbie Quivey said the protest has been forwarded to the county prosecutor’s office. She said she’s not sure what the next step will be for the protest. The next regular elections board meeting will be Aug. 14 at 10 a.m.

Dick McGinn of the Athens Bill of Rights Committee could not be reached for comment before The Messenger’s news deadline on Monday.