Following is a letter from Attorney Randall Denker to Senator Richard Corcoran. This letter, which we have generous permission to share, contains excellent information regarding the oft-thrown-about-to-intimidate Bert Harris Act.
Why is this important? Because pro-frackers are quick to thow out this name to county commissioners and other authorities because they want to intimidate them into compliance.
Thanks to Ms. Denker for clarifying this and for supporting the Florida ban on fracking, also to Sen. Corcoran for his stance against fracking.
Comments by OSFR historian Jim Tatum.
-A river is like a life: once taken, it cannot be brought back-
Law Office of Randall Denker
552 EAST GEORGIA STREET
TALLAHASSEE, FLORIDA 32303
June 21, 2017
Senator Richard Corcoran
420 Senate Office Building
404 South Monroe Street
Tallahassee, FL 32399-1100
Dear Senator Corcoran:
I am an environmental attorney with 40 years experience. I have worked in government (as an FDEP enforcement attorney) and in the private sector (as owner of my own law firm for 30+ years.) My law practice has concentrated in the area of surface and groundwater pollution and I have practiced all over the state of Florida.
It has come to my attention that you recently were at Café Con Tampa and expressed your opposition to fracking in Florida. First, let me say kudos!
However, you also expressed concern about a state-wide ban because of the potential for “taking” lawsuits under the Bert Harris Act.
I want to allay your concerns about the Bert Harris Act. I believe the history of the Bert Harris Act shows that it is a red herring tossed around by the extraction companies for the purpose of intimidating legislators. I want to share my perspective on the legal realities of this statute, so that hopefully you will no longer give it any serious weight.
The Bert Harris Act was first passed in 1995. In the intervening 22 years, there have only been 15 reported cases involving this statute.*. The reason for the paucity of cases is that the Act allows the prevailing party to recover attorney fees. This has acted as a powerful deterrent to filing suits because if a landowner overestimates the strength of his case, the consequences of his miscalculation can be financially ruinous. A losing landowner pays his own attorney and the government’s attorney.
As a result, owners have been very reticent to file suits under the Act.
An analysis of the reported cases shows that of the 15 reported cases, almost all of them were decided in favor of the government.
There is only one reported case squarely in favor of a landowner: Citrus County v Halls River Development, Inc., 8 So 3d. 413 (Fla 5th DCA 2009.) This case involved a rescission of previously-granted property rights. The owner in question had met the County’s Comprehensive Plan, the Land Development LDC, gotten approval from the U.S. Army Corps and the SW Fla. Water Management District, and obtained a ruling by the County Commission after a public hearing that it was entitled to build a 56 unit condo. Later, the County passed a zoning ordinance that nullified previously granted permits and limited the owner to a single unit on 11 acres of expensive riverfront property. The court found that it was “an inordinate burden” under the Bert Harris Act and that the public should “share the burden.”
However, it should be noted that just last month, the Fla. Supreme Court interpreted the Bert Harris Act in Hardee County v FINRII, Inc., Case No. SC 15-1260 (May 25, 2017), after a conflict developed between two lower appellate courts. The Supreme Court ruled that the Act should be interpreted very narrowly because it waives state sovereign immunity and therefore, it is important to protect the public purse. This means that it will hereafter be even more difficult for owners to prevail under this Act.
The case most similar to a fracking-type situation is Holmes v Marion County, 960 So. 2d 828 (Fla 5th DCA 2007.) In that case, a landowner was running a landfill in a former mine. The landfill was operated pursuant to a permit but when the permit came up for renewal, it was denied, putting the owners out of business. They sued Marion County for $2.6 million. It was undisputed that the business had been highly profitable and that, if the permit had been reissued, the owners would have made at least an additional $1.5 million in 3 years. However, the neighbors opposed the renewal of the permit, testifying that it was a nuisance, creating garbage, odors, dust, and noise. The Court ruled that the denial of the permit and the closing of the landfill did not constitute an “inordinate burden” (the standard under the Bert Harris Act) and therefore, the government’s decision to deny the permit was justified to protect the public well-being, even though it had the effect of putting the landfill out of business.
What this means is that the State of Florida has little to worry about if it adopts a statewide-ban on fracking. We already know this because many counties have banned fracking and there are no reported cases of successful Bert Harris Act lawsuits, although of course, threats are always made in an attempt to intimidate.
Recently, I was asked to weigh in when an oil company threatened to sue Wakulla County, which had just passed a fracking ban. What I discovered is that the energy company’s rights to frack were not legally sustainable because their reservation of subsurface mineral rights had all been extinguished by Florida’s Marketable Record Title Act, an act that extinguishes such reservations of rights after 30 years. The oil company made the usual legal threats but they were merely an impotent display.
When New York passed a state-wide fracking ban in 2014, the extraction companies vociferously threatened to sue and the state braced for an onslaught of lawsuits. But none came. In the intervening years, only one suit was filed and it was thrown out before coming to trial. Read more here: http://www.pressconnects.com/story/news/local/new-york/2017/04/20/ny-bans-fracking-but-lawsuits-dont-follow/100703032/
In Florida, the case law shows that, in order to prevail, an extraction company would need to show that it had an ongoing long-term business in that specific location that was profitable, fully permitted and vested (development permits, by their nature, are never vested) and that a statewide ban kept the company from making any other profitable uses of their land. This means that the litigant would have to show that, but for the fracking ban, he would have been able to get all necessary federal, state and local permits (speculative) and that he would have been able to successfully extract sufficient oil or gas to have made a sustained profit (also speculative.) Courts do not award money judgments based on speculation. They award money judgments based upon a demonstrated track record and documentation of prior sustainable earnings.
As you continue to think about a statewide fracking ban, please also remember that our own Florida Constitution, Section 7 states:
It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise and for the conservation and protection of natural resources.
In other words, clean air and water are constitutional rights. Fracking is not a constitutional right.
When the Legislature reconvenes, I hope that you will protect our beautiful state by supporting a ban on fracking. If you wish to discuss anything with me, I remain at your disposal to answer questions.
Randall Denker, esq.
Denker Law Office & Offices of Waters without Borders
552 East Georgia Street
Tallahassee, Fl. 32303
 A few cases are reported more than once because there were several appeals, but I have only counted them once.