On Friday, June 24th at 9:00am, the second hearing of the trespass case between HALT and PennEast was held in the Somerset County Courthouse. The purpose of this meeting was two-fold:
- Hear arguments on PennEast’s Motion to Dismiss
- Hear argument’s on HALT’s request for an injunction against PennEast
First up was discussions on PennEast’s motion to dismiss. The judge indicated she had limited time that morning and had another case scheduled at 10:00am. PennEast’s lawyer was up first, and his strategy seemed to be pretty clear: take advantage of the time constraints, and keep talking as long as he could to run out the clock! I don’t know why they would pursue a strategy like that, but it was quite evident and blatant. Maybe he thought HALT would have no time to present their argument. Or maybe he just likes to talk. In any case, he took over 20 minutes to say very little at all. The gist seemed to be this:
- The people involved in the trespassing allegations didn’t really mean to trespass. They were lost, or confused, or very friendly, but they really didn’t mean to do anything wrong.
- They weren’t really PennEast’s agents! It’s not our fault! Blame someone else!
- Endless repetition on what “intentional” trespass is, and why it’s important (hint: he got the law utterly wrong here).
On the first and last points, it was clear the lawyer was stretching and didn’t have much to stand on. Trespass law isn’t all that complex. If you’re on someone’s land and they don’t want you there, you’re trespassing. It does’t matter if you’re lost, or confused, and it doesn’t matter what you intend to do. What matters is what you did.
If I just start walking “North” from where I am right now for 10 miles, and had no idea who’s property I was on or where I was really going, I would still be guilty of trespass on any properties with no trespass signs on them. Which in West Amwell would be a lot
The “intentional” part that PennEast is harping on in the statutes is just wrong. When the statutes talk about intentionally being on a property, what they mean is that you came to the spot you’re at of your own free will and volition. You didn’t fall down a long hill and end up there. You weren’t kidnapped and dropped there by your assailants. You put your body there on purpose.
We don’t know these guys…
PennEast also tried very hard to distance themselves from the actors involved. On the trespassing on Copper Hill Preserve, PennEast freely admitted that the alleged trespass happens. But they claim it wasn’t there problem. The people there were doing bat surveys for a company, that company is responsible for where they went, and that’s that.
The judge didn’t buy this argument at all. The bat surveyors were there at PennEast’s behest, are paid for by PennEast, and are clearly their agents.
Another case involved what PennEast alleges was actually an “811 call before you dig” worker doing work on behalf of power and gas companies. According to PennEast, the guy was there marking out properties as part of “call before you dig”, the work order came from the power and gas company, not PennEast, and thus he’s not PennEast’s agent.
This case is a little trickier and the judge hesitated to go either way. It is not 100% clear that the call before you dig guy is PennEast’s agent. Maybe they are, maybe they’re not. It’s a bit complicated because of how 811 works. However – the judge did ask who made the 811 call to begin with. Which PennEast responded was them. The judge then asked if they had a right to call 811 on those particular properties, and that’s where things got a little dicey for PennEast. The judge wanted to know just how 811 works, and the lawyer didn’t know and tried to pull in NJR’s legal counsel to explain it. The judge didn’t want any testimony and stopped that, and basically told the lawyer “so you don’t know, so you can’t make the argument”.
The 811 worker portion in general is a bit convoluted and it will be interesting to see how that plays out and the judge rules. It brings me back to an incident on Alexauken Creek Road, where someone called 811 on the entire block along the route – even though survey permission had been denied. What’s going on here? Is PennEast calling 811 even for areas they can’t survey? Are they doing something funny in general with the companies actually doing the 811 work? I don’t know, and the law here seems to be unclear.
Would you like to buy some cookies?
PennEast also made a big deal about driveways being exempt from no-trespassing signs. The caselaw they cited seemed to talk about having a door knocker or bell being an invitation to knock, and that therefore UPS people, girl scouts, etc had a right to walk up driveways and make inquiries.
The girl scout angle was mentioned many, many times by PennEast’s lawyer. He had quite an obsession with the idea. But I think two factors are not taken into account here:
- In many cases our “driveways” are more like country roads. My driveway is 300′ long and far from the biggest in the area. Many farms have exceptionally long roads. I don’t think this girl scout doctrine applies when you can’t even see the front door from the public road.
- Patty Cronheim rightfully pointed out after the hearing that these people had refused survey access in writing, and PennEast knew it. If someone has told you in writing to not come on their property, I don’t think this girl scout doctrine would apply either. PennEast had been told to keep away, and that should be that.
Yet Another Trespass
Since the 1st hearing, HALT is alleging that another trespassing incident occurred on the property of Sonya Zuccarrelli. Sonya is a neighbor of mine, and is an ex-DEP employee and knows her stuff. Sonya has video of the incident, and as a former NJDEP person she knows her land well, especially since there are special features of it that she has to pay attention to. She shows PennEast trespassing on their land in the end of May.
PennEast denies it, says they were on a utility easement at the time, and they have their own video from the same incident that they claim shows they’re not trespassing.
I helped out with research into Sonya’s deed to look at any potential utility easements, and based on what she describes, on the video, and looking at the utility easements, it sure looks to me like PennEast doesn’t have a leg to stand on. This wasn’t discussed in too much detail in court, but I think this may be HALT’s strongest trespass incident yet. And the fact that it also happened after the case has began will be important. This is going to be something to watch closely.
The other matter before the judge was a possible injunction against PennEast if HALT prevails, and what the “remedy” for that would be. The remedy is basically what HALT would get if they win. HALT has been arguing that they are entitled to all of the data PennEast illegally obtained about the property, so we can get it back, and so we can also tell FERC they can’t use any of it. And this may go beyond just surveying. PennEast has admitted in multiple venues in writing that they have “notes” on people’s individual properties. The judge seemed to perk up on hearing that. HALT believes we should have access to those notes since they pertain to our private land.
It’s unclear where this point will go. Traditionally, trespass suits are solved with damages to the plaintiff. Someone pays some kind of money or restitution for the act. In the case, HALT isn’t asking for money. We’re asking for something closer to a repayment in kind – we want our data back. The judge indicated that she’s not sure if the law allows this, and wanted citations to try to get her there. We’ll have to watch this closely.
Sizing up the two sides
I am obviously quite biased here, but I think the two sides are pretty easy to characterize. Steve Richardson, the attorney for HALT, came across as clear, concise, and forceful in the day’s hearing. He made an excellent case and ensured he was sticking to facts. There are a few rough edges to the case and it’s not 100% a slam dunk, so we’ll have to see how it plays out with the judge. Such is the nature of law.
The choice of PennEast’s lawyer, and his approach, are somewhat perplexing. Their attorney normally does white collar criminal law and doesn’t cover something like a trespass suit. It’s not clear why he picked him. He seems to not really know civil law very well, and seems to be pandering to a jury which isn’t there – this is a judge only hearing. He goes on long, rambling journeys through anecdotes and theories that seem to have little do with the case at hand. Like PennEast themselves, he works a lot by making assertions, but not backing them up with any relevant data. The judge gave him a lot of leeway, but even so at one point she had to sharply tell him to sit down when he was about to go off on a yet another long journey into who knows where.
The judge should rule on the motion to dismiss within 1-2 weeks. It could be in writing or involve a phone conference, but probably won’t be another hearing. In my inexpert opinion HALT will win this portion easily. PennEast made a poor case to dismiss.
The injunction is another matter, and we’ll have to see where the judge goes with it. I think HALT’s case is strong, but it lays with the judge’s interpretation of the papers that are filed, the arguments made, and the law. I think we’ll particularly have to see how the Zuccarelli trespass incident comes to light.