We’ve Come A Long Way, Baby!

I guess we should be glad.  Just two short years ago a battle still raged in Flower Mound over whether urban drilling should be embraced or spurned.

The 2010 election put an end to that.  By ousting the previous Town Council majority, the citizens of our community made it very clear:  WE DO NOT SUPPORT DRILLING NEAR HOMES AND SCHOOLS!

This election season candidates realize there is only one “right” side of the urban drilling issue.  The candidates working together to unseat NFL are frantically revising history to make us believe they are on our side.  They are not letting the truth stand in their way.

They’re pushing crazy conspiracies and false accusations to put doubt in the minds of voters around the very officials who shepherded in this new era of protection:  Melissa Northern, Al Filidoro, and Steve Lyda – NFL.

It is nothing short of ridiculous. I almost considered ignoring it since it is so clearly political posturing.  Ultimately, though, I decided that for those who don’t have in-depth knowledge of our long history of gas drilling in Flower Mound, providing a refresher course on what has really happened would be helpful. My intention is not to “smear” any candidates but to clear up innuendo and half-truths being spread by some of Hayden, Dixon, and Webb’s supporters. I have been in this a long, long time and my history on this subject goes back many years.

When reading the blog you will see I have listened to all sides of the story. My journey for the truth has provided me with the facts and I gladly share them with all who care to listen.As you read through this, the details are there to prove the point but are really less important than the message.

Why would any candidate revise history?

Can you trust a candidate who is willing to lie to you to get elected?

I want to start with this statement from Tom Hayden's website: “Just weeks after the NFL took office, residents including members of council, were given just 72 hours notice that the Williams Settlement had been placed on the agenda by Mayor Northern for the upcoming council meeting. ... The reason for this settlement was never clearly explained.”

The Truth:

Tom Hayden was included in emails and participated in discussions about the settlement starting more than two months before the settlement was on the agenda.

In a March 1, 2010, email from the Town Attorney to all members of Town Council (excluding two of them, Smith and Levenick, who had signed leases with Williams and therefore had a conflict of interest), Council was informed that Williams wished to work out a settlement of all outstanding issues with the Town. Every member of Council agreed that there was no harm in exploring a settlement discussion with Williams, although no specific deal points were defined. The settlement would have addressed the pending Mockingbird Pipeline lawsuit and other related issues. Council entered into the lawsuit with Mockingbird based on a two/two deadlock with Steve Dixon and Mike Wallace wanting to settle with Williams and Al Filidoro and Tom Hayden agreeing to authorize the town attorney to defend the town against Williams’ encroachment on town property.

The status of the Mockingbird Pipeline lawsuit/Williams settlement was addressed in Town Council closed sessions on April 19, 2010; June 21, 2010; July 6, 2010; July 19, 2010; August 2, 2010; August 16, 2010; and September 7, 2010.

On May 12, 2010, along with Town staff members, Councilmember Hayden, the Mayor-Elect and Councilmember Filidoro met to discuss various Town issues, including a detailed discussion about a settlement with Williams.

On June 16, 2010, each member of Town Council received a detailed memorandum from the Town Attorney spelling out the proposed terms of a settlement agreement with Williams; a copy of the proposed settlement agreement was also provided.

Later that same day (June 16, 2010), Councilmember Hayden provided comments via e-mail about the proposed settlement agreement including the type of landscaping he preferred. He copied other Councilmembers about his thoughts on the proposed settlement agreement. Also on June 16, the Town Attorney responded to the issues Councilmember Hayden raised in his e-mail.

Other Councilmembers also raised questions and provided input about the proposed settlement agreement. On June 18, 2010, in an attorney/client document, the entire Council was provided detailed information about compression facilities at the Williams pad site.

By Saturday, June 19, 2010, a fourth version of the settlement agreement was exchanged between the parties and a detailed memorandum provided by the Town Attorney to the entire Town Council about the latest revisions to the proposed settlement agreement. After additional discussions with individual members of the Town Council, a revised agreement was forwarded to Williams on June 21, 2010.

On the afternoon of June 21, 2010, each member of Town Council received a bullet point outline from the Town Attorney detailing the items referenced in the proposed settlement agreement that were not already contained in Town ordinances.

After additional revisions, late on the afternoon of June 21, 2010, a finalized version of the proposed settlement agreement was forwarded by the Town Attorney to Town Council.

During the Town Council meeting on June 21, 2010, while addressing the proposed settlement agreement and how it came about, the Town Attorney stated that Town Council had been kept abreast of the process (Book 38, Page 489, Town Council Minutes). Nowhere during the discussion of the proposed settlement agreement did any Councilmember state that he or she was unaware of the proposed settlement agreement or had been taken by surprise that it was on the agenda. Several Councilmembers discussed the settlement agreement’s proposed terms in great detail. If the proposed settlement agreement was a surprise to any of them, they certainly hid their surprise well! In fact, Tom Hayden himself told me he participated in a meeting with Williams prior to the settlement being presented to the public.

The reasons for the proposed settlement agreement were explained to all Councilmembers in detail on multiple occasions. If any Councilmember believed anything was unclear about the proposed settlement agreement, there were many opportunities to address those concerns. Every Councilmember contacted the Town Attorney with input, thoughts, questions, suggestions, and concerns.

The Truth: Flower Mound does not have a Centralized Collection Facility.

Flower Mound has had a Centralized “Compression” Facility since 2008, NOT a Centralized “Collection” Facility. The compression facility was unanimously approved by the Oil & Gas Board of Appeals on February 13, 2008.  At the 2008 OGBOA hearing on the Central Compression Facility application, no one spoke in opposition to the facility and the Town Council had no role in the approval or denial of the variance request. If the Town Council had been opposed to the approval of the variance for the compression facility, the only recourse for the Town Council would have been to sue the OGBOA.  In any case this all took place before NFL was in office. 

The Truth: NFL has stopped the industrialization of Flower Mound.

During NFL’s tenure on Council, the 26 gas wells that have been approved were on existing pad sites and were already in progress and applied for with the Texas Railroad Commission and the town before NFL took office in May 2010. Every well fell under the 2007 weakened ordinance. NO NEW WELLS HAVE BEEN APPROVED UNDER THE NEW ORDINANCE!

As has been explained to the Oil and Gas Advisory Board and the Oil & Gas Board of Appeals, state law requires that once the Town is aware of a permit (even without a formal application), the applicant’s rights vest. The failure to recognize this vesting is a violation of state law. This also has been explained by the Town Attorney or members of his office on multiple occasions at Town Council meetings and board and commission meetings.

I served on the Oil and Gas Advisory Board and we discussed "vested interest" as it pertains to Oil and Gas drilling in the State of Texas numerous times. To ignore a vested interest is a violation of state law; municipal ordinances cannot “trump” state law.

The Truth: NFL had no means to stop the Hilliard airfield pad site.

We have heard for almost two years that “there is room for legal debate on this issue.” Where is any legal opinion that supports that statement? Hayden, Dixon, and Webb supporters, including Councilmember Stephenson, have been asked for copies of legal opinions they purportedly obtained from outside lawyers — and in no event has any of them ever provided a copy of a legal opinion.

The facts are:  The Texas Railroad Commission approved the permit for the Hilliard pad site in September 2009.  In October 2009, Titan put in their first application with the Town for the Hilliard pad site. Because of the timing the Hilliard application was vested under the old gas ordinance. The pad site met the requirements of the old ordinance, therefore the town was obliged to administratively approve it Town Council is obligated to follow all laws and ordinances, even those that were adopted by prior councils, whether they agree or not.  In the Hilliard case, the council could not reasonably challenge this permit and win in a court of law.

On September 10, 2010, the Town provided residents with a lengthy, detailed analysis of the Hilliard pad site permit.  The permit was also discussed in depth at the September 20, 2010, Town Council meeting. Issues raised by citizens about the Hilliard pad site were explored. Click here to read the power point presentation. The issue of Hilliard’s vested rights remained.  Some residents just did not like the response.

The issue has been raised that Mr. Hilliard needed a variance to remove trees on his property and that the failure to receive a variance was a basis upon which to deny his drilling permit. This contention is wrong. Since the adoption of the first tree ordinance by the Town in the 1990's, an owner of any property zoned agricultural is permitted to remove up to 19 protected trees annually. Only an administrative tree removal permit is required. A tree removal request on agriculturally zoned property does not go before a board and does not require a Town Council vote.  

An agricultural tree removal permit differs from the other types of tree removal permits discussed in the tree ordinance in several ways. First, this type of permit does not have to be associated with any type of property development. Second, the only criteria necessary for approval is that the property be zoned agricultural and that the trees be protected trees and not specimen trees. The Town’s tree ordinance does not require the property owner to give a reason for requesting the agricultural tree removal permit. Town staff verified that all trees requested for removal were protected trees, not specimen trees, and the applicant requested to remove 19 protected trees, as permitted by ordinance.

NFL did campaign on not being afraid of a lawsuit but this was always understood to mean they would not be bullied when the Town was in the right, not that they would irresponsibility invite legal challenge by taking positions that had no legal justification. To fight simply for the sake of fighting when the law and facts are clearly not on your side is a waste of taxpayer dollars, particularly when the Town will be financially liable. We should expect town staff and elected officials to be fiscal stewards of taxpayers’ money and not subject the town to frivolous legal risk even if the public doesn’t like the law... With the exception of the “mystery lawyers” referenced by several Town residents over the years, no credible attorney has ever contended that the Town could deny the Hilliard permit.

It is interesting to note that Hayden/Dixon/Webb supporters often cite NFL’s adherence to the law as some sort of breach of trust and yet both Dixon and Hayden served on Council at the same time and likewise followed the law in the same manner as NFL. 

The Truth: NFL always works in a transparent manner to protect Flower Mound from industrialization by gas drillers.

As noted in response to the first item from the Hayden website, if Councilmember Hayden or any other Councilmember only had 72 hours’ notice that the proposed Williams settlement agreement was on the agenda, then they simply did not read their e-mail, agenda packets, or communications from the Town Attorney.

All Councilmembers were fully apprised of the proposed Williams settlement agreement and had been notified repeatedly about it. Councilmembers offered input into the proposed settlement agreement and commented upon it. Steve Dixon expressed his excitement that 6 items from his "wish list" made it to the settlement. The fact that Councilmembers commented upon the proposed agreement did not mean that they were in favor of it — they were simply asking questions about it. The normal process for the Town Council is to comment and question, which also happened in this case.

In fact, and regardless of the above, Town Council unanimously chose to reject any settlement agreement with Williams. In any lawsuit, it is customary for the parties to attempt to negotiate a settlement prior to trial. The Court almost always demands an attempted negotiation and the legal system strongly encourages the parties to come together and see if a controversy can be worked out prior to trial. In some cases, settlements can be worked out and in some, like this one, they cannot. Entering into negotiations does not tacitly mean that there is any agreement; here, it meant that Williams’ attorneys and town staff, worked on a proposed agreement, and after review, it was determined by the entire Town Council that a settlement could not be reached.

There was no settlement on the above Williams litigation and no future settlements were entered into by the Town. The parties proceeded forward in the case.  Ultimately, the Town of Flower Mound prevailed and Mockingbird Pipeline/Williams paid $55,000 to the Town as reimbursement of its legal fees.

As mentioned above, no new wells or pad sites have been approved under the Town’s new oil and gas ordinance.  Any administrative approvals of additional wells were based on permits filed prior to the NFL’s strengthening of the oil and gas ordinance in 2011.  While many of us would have loved for the Town to have had the latitude to tacitly reject permits vested under the old ordinance, case law is well established that we would not have prevailed in court. I hope you will remember who shepherded in this new era of protection. When someone wants to throw stones at these clear leaders in the fight against urban drilling, consider the source and their motivation.  Without the burden of the responsibility of governing, it’s easy to stand on the outside and ignore legal precedent in order to justify one’s beliefs.  As citizens we can engage in wishful thinking but our elected officials cannot.  They have a duty to act responsibly.. NFL has acted responsibly and also done all they can to protect this community.  As for the purveyors of conspiracy and innuendo, and the candidates they support, I don’t expect my comments to be persuasive to them at all because no amount of legal reasoning or precedent will deter someone who chooses to stay ignorant or ignore the law.

My comments are not intended for those vested in a particular candidate slate, those insistent on being right about some inane aspect of the ordinance, or someone with an axe to grind.  They are intended for consideration by the vast majority of residents who are simply vested in what is best for Flower Mound.  I am available by email on this blog for anyone who wants to discuss this further.