San Antonio Lawyer

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The Lawsuit that Saved the Spurs San Antonio

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I Know I’ll Miss Teaching: Aloysius A. Leopold By Sherry Barnash and James Rodriguez

ON THE COVER: The Lawsuit that Saved the Spurs By Steve Peirce

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Texas Fracking Ban’s Brief Attempt to Fill the Environmental Regulation Void By Rebecca Jo Reser

Departments

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Federal Court Update By Soledad Valenciano and Melanie Fry

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State Bar of Texas Honors San Antonio Lawyer By Erin Boren

Feedback Poem: Justice By Judith Wemmert Fourth Court Update: Color of Justice By Justice Rebeca C. Martinez

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On the Cover: San Antonio buisnessman B.J. “Red” McCombs and San Antonio attorney Larry Macon. Photo by Alexa Perez. Photo contributions from: Alexa Perez (p. 1, 3, 8, 12), Justice Rebeca C. Martinez (p. 22, 23), St. Mary’s University School of Law (p. 3, 5, 7) Archives of the San Antonio Lawyer are available on the San Antonio Bar Association wesite, www.sabar.org. San Antonio Lawyer is an official publication of the San Antonio Bar Association. Send address changes to the Bar Association address at the top of page 4. Views expressed in San Antonio Lawyer are those of the authors and do not necessarily reflect the views of the San Antonio Bar Association. Publication of an advertisement does not imply endorsement of any product or service. Contributions to San Antonio Lawyer are welcome, but the right is reserved to select materials to be published. Please send all correspondence to [email protected]. Copyright ©2015 San Antonio Bar Association. All rights reserved.

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Contents

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Thank you, Kim! By Sara Murray



Features



Lawyer San Antonio

The San Antonio Bar Association 100 Dolorosa, San Antonio, Texas 78205 210.227.8822 Fax: 210.271.9614

Officers/Directors

President Thomas g. Keyser President-Elect James M. “Marty” Truss Vice President Bobby Barrera Directors Rosa Cabezas-Gil Tom Crosley Dave Evans Dawn Finlayson

Secretary Beth Watkins Treasurer Santos Vargas Immediate Past President Rebecca Simmons Steve Fogle Hon. Laura Parker Hon. Richard Price Christine Reinhard

Mexican American Bar Association Jaime Vasquez

San Antonio Bar Foundation Thomas g. Keyser

San Antonio Young Lawyers Association Patricia Rouse Vargas

State Bar of Texas Directors Sara E. Dysart Andrew L. Kerr

Bexar County Women’s Bar Association Executive Director Marissa Helm Jimmy Allison San Antonio Black Lawyers Association Stephanie Boyd

Editors Editor in Chief Sara Murray Articles Editor Natalie Wilson

Departments Editor Leslie Sara Hyman

Managing Editor Erin Boren

Editor in Chief Emeritus Hon. Barbara Nellermoe

San Antonio Lawyer

Board of Editors Sara Murray, Chair

Pat H. Autry, Vice-Chair

Sherry M. Barnash Barry H. Beer Charles Butts Merritt Clements Gayla Corley Ryan V. Cox Andrea Crouch Paul Curl Cristina Tijerina DeLeon Jane Rankin Dure Tanya Feinleib Jose Galvan Shannon Greenan Gilbert S. Gonzalez Stephen H. Gordon Per Hardy Sam Houston Leslie Sara Hyman Rob Killen

Rob Loree Burke C. Marold Hugh McWilliams Harry Munsinger Curt Moy Hon. Barbara Nellermoe Steve Peirce Donald R. Philbin Rob Ramsey Yanira Marie Reyes James Rodriguez Alexis Adams Scott Ronald D. Smith Regina Stone-Harris Johnny W. Thomas David Willis Natalie Wilson Kevin Yeary

Ex Officio

Thomas g. Keyser

Erin Boren

Chellie Thompson

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Monarch Media & Consulting, Inc. 512.293.9277 [email protected]

Thank you, Kim! As many of you may know, Kim Palmer recently resigned from her multiple roles with SABA, including her long-standing positions as editor of Subpoena and as managing editor of San Antonio Lawyer. Although, technically speaking, both publications are under the umbrella of the SABA Publications Committee, for many years Kim handled the publication of Subpoena almost single-handedly, enabling the Committee to focus primarily on publishing San Antonio Lawyer—with a lot of help from Kim, of course. The Publications Committee and the Editorial Board of San Antonio Lawyer are extremely grateful to Kim for her many years of excellent, dedicated service. Her creative genius and talent for designing stellar layouts for the fine articles contributed by our authors catapulted San Antonio Lawyer to the award-winning magazine that it has been for the past several years. Kim always completed her Subpoena and SAL tasks on time, kept the rest of us on schedule, and never once wavered in her commitment to professionalism, patience, and kindness. Thanks, Kim! We will miss you. Sara Murray Editor in Chief, San Antonio Lawyer Chair, Publications Committee

Feedback Re: Harry Munsinger’s “Ricardo Cedillo: The Dean of South Texas Business Litigators,” published in the May-June issue of San Antonio Lawyer Ricardo’s decades of hard work and water walking achievements provided you with a banquet of resource material. However, your Ricardo Cedillo: The Dean of South Texas Business Litigators article is more persuasive and a finer work of art than any of his briefs or closing arguments. What’s your funeral oration by-the-line charge? ­ —Mark Miller Great article on Ricardo. Bet that was fun.

—Don Philbin

Good morning, Ricardo: Wonderful article about your family by Dr. Munsinger. It brought back memories of Otila’s political help for me in Uvalde, the birth of your son while in trial in the 150th, your brother at Luby’s on North Main and, of course, “time out.” Indeed, we are in the fourth quarter of the Game, have had a great run, and have won more than we lost. —Chief Judge Fred Biery

Layout by Erin Boren Managing Editor, San Antonio Bar Association

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I Know I’ll Miss Teaching Professor Aloysius A. Leopold

By Sherry Barnash and James Rodriguez

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rofessor Aloysius A. Leopold retired from St. Mary’s School of Law in May 2015. After forty-eight years of teaching at his alma mater, he says he’s “hanging up the gloves.” The South Texas native (born in Nada) celebrated his 80th birthday on March 16, 2014. Professor Leopold earned his J.D. in 1962 and eight years later earned his B.A. in history. Yes, you read that correctly. “In those days,” as Professor Leopold puts it, one only needed three years of undergraduate schooling to attend law school. After completing those three years at seminary, and realizing it was not his calling, Professor Leopold enrolled

in, and excelled at, St. Mary’s Law School. Immediately upon graduating with the “highest [grade] average,” Professor Leopold was offered a teaching position by then-Dean Ernest Raba. Though tempted, Professor Leopold insisted on gaining some practical experience first, telling Dean Raba, “I can’t just teach things without having done them.” He suggested Dean Raba ask him again in five years. Leopold earned that practical experience as an associate with Kelley, Looney, McLean & Littleton and then as a partner, along with Lionel Aron Peña, in Peña & Leopold, practicing property law in Edinburg. Almost five years to the day later, Dean Raba appeared in Professor Leopold’s Edinburg office and renewed the offer to teach at St. Mary’s, beginning with the upcoming summer semester. As Professor Leopold remembers it, his first question was, “‘Fine, what’ll I be teaching in property?’ and [Dean Raba] said ‘Oh, you won’t be teaching property in summer; you’ll be teaching domestic relations.’” When he couldn’t locate a book he liked, Professor Leopold simply wrote one for use in his class. The domestic relations case book would be the first of four Professor Leopold would write over the years, the others covering community property and homesteads, mortgages and real estate finance, and the international law of stolen art and artifacts. When Professor Leopold graduated, the law school was still located downtown on the banks of the San An-

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tonio River. Upon his return five years later, the school was occupying the Maverick-Clarke building in anticipation of moving to a new campus. His first Christmas as a professor was spent moving to the current campus. Professor Leopold’s new life as a professor required a few adjustments. “I had to learn how to write an exam that students, even the brightest, could pass,” Leopold says. After reviewing the exam he wrote for that first domestic relations class, he says he realized “[n]obody could pass” it, so he rewrote it. His preference is to “go light on the essay exam,” noting some students are better at “direct, short-answer questions,” and others are better when they can rationally work out the issues. Basically, “I try to make sure nobody gets it all!” Professor Leopold believes multiple-choice and “fill in the blank” questions are inappropriate for law school because they cannot be written without ambiguity. “No matter how you write a true or false question, it can be qualified. It depends, and you’re not allowed to depend” with these types of questions. He doesn’t believe a law student’s grade should be based on such ambiguity. Asked whether students have changed over the years, Professor Leopold replied, “Generally, no,” finding a mix of bright, ordinary, and not-sobright students has always existed. Professors, however, are a different story. “In the days when I started teaching, the professor could be a tyrant, and some of them were,” he says. “I tried not be.” He believes professors are more accessible today and more willing to help. “The entire time I went to law school, I went to see a professor one time, and I was bawled out for it. They just weren’t that accessible.” Along with the changes in his profession, Professor Leopold notes the focus of the law school has changed over the years as well. He has worked for six different St. Mary’s Law School Deans: Raba, Castleberry, Aldave, Piatt, Cantu, and now Dean Sheppard. “I would say that it started out as a really

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Professor Aloysius A. Leopold speaking at the Distinguished Law Graduate Dinner in 2013

academic endeavor, and somewhere in the middle it got to be more of a social endeavor. It’s coming back around now to where it’s almost entirely academic again, which is what I think it should be.” “Everybody in my class passed [the bar exam] on the first try. That 100% continued for probably ten years after I graduated. It really plummeted in those middle years, and it really hasn’t come all the way back up. That continues to be one of our major problems—getting students prepared to the point where they can pass the bar exam.” Despite his love of teaching, Profes-

“

I have plenty to do, but I know that I’ll miss teaching.

sor Leopold once considered returning to private practice. When the University of Texas at San Antonio opened, St.

Mary’s University experienced a drop in enrollment and income. Enrollment at the law school remained constant, but its income had to help offset the University’s losses, resulting in stagnant professors’ salaries. With children about to go to college, private practice began to look like the best option until “you might say ‘salvation’ came” in the form of two new opportunities. Willard Finkelstein recruited Professor Leopold to teach bar review courses in property, providing him with “a good source of income.” At about the same time, a West Publishing representative came by his office looking for someone to update some of their Probate Law textbooks. “It was a flat fee—a pretty good fee,” he recalls, “and so I got into the writing business.” West has since published twenty-six volumes on Texas law written by Professor Leopold. As he begins retirement, Professor Leopold has mixed feelings about a life without teaching or writing. He and Agnes, his wife of fifty-two years, live out in the country where Professor Leopold tends to sheep, does “a lot of gardening,” and works in his wood shop. They are the parents of seven: four sons and

”

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three daughters, and grandparents of sixteen. He says he’s “not worried about sitting around. I’d be dead next week if I did that. I have plenty to do, but I know that I’ll miss teaching.” Professor Leopold says, “It’s been a good life” and he can’t complain. He recommends the profession to anyone who believes they have a talent for teaching: “You have to have a feel for it.” While admitting some “with only book learning” are able to teach, he believes practical experience can help a teacher instill a better understanding and love of the law in his students. And after nearly half a century of teaching, he should know.

Sherry Barnash serves as Of Counsel with The Coquat Law Firm, PC, and has experience in construction, appellate, and probate law. James A. Rodriguez is a solo practitioner whose practice focuses on family law and probate matters. They both received their J.D. from St. Mary’s University School of Law.

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B.J. “Red” McCombs and Larry Macon at McCombs’ office

The

Lawsuit that

By Steve Peirce

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orpus Christi, Texas, 1953. B.J. “Red” McCombs, then only twenty-five years old, stood before a group of angry creditors, accompanied only by his friend, attorney Bob Sorrell, who had gotten him into this deal. The Corpus Christi Clippers minor league baseball team was on the verge of bankruptcy. The proposed solution was to make a young car salesman with virtually no means the new owner, with only the promise that he would turn the team around and get the creditors paid. “Why should we trust this kid?” one of the creditors asked. “What choice do you have?” responded Sorrell. “Do you know what the market is for used jock straps?” Figuring there was nothing to lose, the creditors agreed to let young

d e v a S

Red t a k e over the team. With a lot of wheeling and dealing over the next couple of years, the team was able to pay all the creditors in full and turn a nice profit as well. McCombs was hooked on the sports business, and for more than thirty years thereafter, he would, off and on, own professional sports teams. From White Bucks to Converse Chucks The second-biggest charting artist of the late ’50s (behind Elvis) was Pat Boone. Boone loved basketball, and he owned and played for a celebrity Hollywood basketball team. In 1967, the American Basketball Association was formed. Merger with the National Basketball Association was the goal from the beginning. The idea was that you could acquire an ABA franchise for a song, and then have an NBA team after the merger. Pat Boone had songs to

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spare, and he became an owner and the president of one of the ABA’s inaugural teams, the Oakland Oaks. Boone went after the brightest young star of the day, Rick Barry. Barry had been the NCAA scoring champion at the University of Miami (’64-’65), the NBA Rookie of the Year (’65-’66) and the NBA scoring champion (’66-’67) for the San Francisco Warriors. The Oaks enticed Barry with a big salary, and they also hired Barry’s college coach and father-in-law, Bruce Hale, as the Oaks’ coach. The Warriors sued, and Barry was enjoined from playing for the ’67-’68 season, but the next year (’68-’69), Barry won the ABA scoring title, and the Oaks won the ABA championship. Yes, Virginia, There is a Santa Claus Despite the Oaks’ success on the court, their financial situation was dismal. When the bank threatened foreclosure on a $1.3 million loan to the Oaks, Earl Foreman, a Washington, DC lawyer, stepped in to buy the Oaks. Foreman moved the team to Washington, DC, then to Virginia, where the team would be re-named the Virginia Squires. Barry was to be featured on the

cover of Sports Illustrated in a Virginia Squires uniform, and Foreman was giddy about the free national publicity. But you can’t judge a magazine by looking at its cover. The article was entitled, “The Reluctant Virginian,” and it contained quotes by Barry unfavorable to the Commonwealth. Frustrated, Foreman traded Barry to the ABA’s New York Nets before the ’70-’71 season. The Squires had lost their first superstar. In April 1970, NBA great Oscar Robertson and other players filed a class action lawsuit in federal court in New York to prohibit a merger between the ABA and the NBA on antitrust grounds (competition between the two leagues was good for player salaries). For several years, the Oscar Robertson suit would be an impediment to merger. Charlie Scott was a Rucker Park legend, said to have “invented the crossover.” He was an All-American at University of North Carolina, and an Olympic gold medalist in 1968. Drafted by the Squires, Scott was ABA Rookie of the Year (’70-’71) and scoring champ (’71-’72), setting the ABA single season scoring record at 34.6 points per game. Near the end of that season, Scott jumped to the NBA, another star slipping through Foreman’s hands. But things weren’t so bad for Foreman and the Squires. They had acquired an even better Rucker Park legend, one Julius “Dr. J” Erving, an underclassman from the University of Massachusetts. Dr. J averaged 27.3 points per game as a Squires rookie in the ’71-’72 season. Somewhere in Michigan, twentyyear-old George Gervin was adrift. He had played only briefly at Eastern Michigan, but was suspended from the team in March of 1972 for punching an opposing player. Then he dropped out of school and went to play for a minor league team, the Pontiac Chaparrals, for $500 per month. Former NBA great Johnny Kerr saw Gervin score fifty points in one of those games and told the Squires about the skinny kid (6’ 7”, 180 lbs.) with the soft shooting touch. Gervin was added to the Squires’ roster as a rookie in the middle of the season, on January 26, 1973. Playing alongside Dr. J, Gervin was nicknamed the “Iceman” by teammate Fatty Taylor for his coolness on the court. The word around the league was that Foreman and the Squires were in

financial trouble. Although Dr. J averaged 31.9 points per game in the ’72-’73 season and became the face of the ABA, Foreman sold him to the Nets at the end of that season. But the Squires still had Gervin to start the ’73-’74 season. They had also picked up 6’11”, 240 lb. rookie center, Swen Nater, who had been Bill Walton’s back-up at UCLA. Here Come the Spurs Back in Texas, the Dallas Chaparrals had been established in 1967 as an inaugural ABA team. By the end of the ’72-’73 season, the Chaps’ good fortune was that they had a star guard from Stephen F. Austin State named James Silas. Their bad fortune was that nobody wanted to see Silas, or any of the other Chaps, play. In the Chaps’ final season, they beat the first place Carolina Cougars in Dallas 112-110, but paid attendance was only 134 folks. They’d had enough. The Chaps sent their play-byplay announcer and sometimes executive, Terry Stembridge, to find a buyer for the team. Stembridge had heard of Red McCombs, who had been responsible for several Houston Rockets’ games being played in San Antonio the year before. Stembridge (not looking desperate at all) followed McCombs to Duke University, where Red was visiting with his daughter. McCombs felt that the quickest and best way for a city to gain an identity was through pro sports. Plus, the city already had a place to play—the Hemisfair Convention Center Arena, which held about 10,000 people. So Red was in. The deal to acquire the Chaps was unique. McCombs and his other investors would not buy the team, but would lease it for two years for $800,000 with an option to buy for another $800,000, and any losses over $400,000 were the responsibility of the former Chaps’ owners. McCombs was named president of the team, and he and his friend and fellow investor, Angelo Drossos (as secretary/treasurer), ran the franchise. Thus, the San Antonio Spurs were born, playing their first home game on October 10, 1973, and drawing a respectable 5,879 fans. Terry Stembridge became the Spurs’ play-by-play announcer, always closing out with the catch phrase “there will be another night.” And there always has been. After the initial excitement wore off, the Spurs’ attendance numbers dipped. The Spurs offered to give the

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team back to Dallas, but Dallas didn’t want it. Dallas waived the $800,000 option fee, so the Spurs got the team outright for half-price. With turning back no longer an option, the Spurs had to keep filling the seats. McCombs was able to reach an informal understanding with the local press that the Spurs would be covered in depth, but negative comments kept to a minimum in order to encourage fans to come out to the games. Spurs’ players were sent out to the community recreation centers to promote the team to the city’s youth. With the help of the Baseline Bums, a live band, two-dollar tickets, and an occasional ten-cent beer night, the Hemisfair Arena became known as the noisiest place in professional basketball. And by the way, when that red, white, and blue ball was tossed for the tipoff, the loudspeakers played Al Dean and the All-Stars’ “Cotton-Eyed Joe,” just to remind the opposing teams that they were in South Texas. Was there a better way to spend two dollars and a fistful of dimes? Still, the Spurs knew that they needed to improve the roster if they were going to make a go of it. Drossos went to work on Earl Foreman. As the story goes, Drossos was having dinner and drinks with Foreman at Dionysus, a Greek restaurant in New York City. Drossos had found out that the Squires were in dire need of cash to meet league assessments and might be willing to sell Nater to the Spurs for $300,000. When Foreman returned from a trip to the bathroom, Drossos handed Foreman a $50,000 check as a down payment for Nater. Foreman’s response was, “No deal. I need $300,000 now.” Drossos asked Foreman if he would do the deal if he could get him $300,000 in fifteen minutes. Foreman agreed. Drossos called the bank and had the $300,000 in fifteen minutes. Nater became a Spur in November 1973, and would be named ABA Rookie of the Year at season’s end. I Did Not Want to Say “the Iceman Cometh” But the Iceman Cometh The next step was to acquire a high scorer, and the Spurs set their sights on the Iceman, who was averaging around 25 points per game for the Squires. McCombs recalled, “He was so skinny that you could see right through him, but we could see his talent and we knew he was the real deal.”

Mike Storen, the ABA commissioner, was not happy about the dismantling of the Squires. Commissioners are most interested in maintaining the competitive balance in the league, and any more trades might mean that there would not be another night for the Squires. In an early January 1974 league meeting, Storen noticed McCombs and Foreman passing notes to each other. Figuring it was some kind of trade negotiation, Storen informed the two in no uncertain terms that there was a “freeze” on the Squires’ roster. (Well, we’ll just see about that.) On a late Friday afternoon, on January 11, 1974, a twenty-nine-year-old Cox & Smith associate named Larry Macon was planning his weekend with his wife, Jane, when the phone rang. It was Angelo Drossos. There went the weekend. The conversation went something like this: Drossos: Draw up a contract for the Spurs to get Gervin from the Squires. Macon: Okay. For how much? Drossos: I’m gonna get you a cashier’s check for $200,000 and a blank check. You negotiate however much it is over the $200,000 and pay the balance with the blank check. Get on a plane and meet Foreman tomorrow at the Braniff Club at the Dulles Airport. Macon: Okay, but do you want to see the contract . . . Drossos: No. Get it as low as you can, and don’t come back if the deal falls through. And by the way, we might have some trouble on this one. And so, notwithstanding the freeze on the Iceman, young Larry spent the weekend with Earl Foreman negotiating the sale. With the aid of a cocktail napkin addendum, the contract was signed on January 13, 1974, for $225,000, which was delivered to Foreman via the cashier’s check and the formerly blank check. (Macon did a great negotiating job; Foreman had wanted $500,000 for Gervin.) There was one twist. Virginia was hosting the ABA All-Star Game, so the trade was to be kept a secret from everyone (including Gervin and the Commissioner) until after the game, whereupon Gervin would report to the Spurs. The ABA All-Star Game was played on January 30. Ironically, the star of the game was the former Squire-turnedSpur, Nater, who scored 29 points and

pulled down 22 boards. By game time, rumors had spread about the Gervin trade. A Virginia reporter said that he had seen the Gervin contract, and another Virginia reporter said that Foreman needed $250,000, and “He got the money, but God knows where he got it.” Storen publicly announced that he would not approve of the deal. Foreman told Gervin that Gervin was not going anywhere. Gervin did not report to San Antonio. Gervin’s agent called the Spurs and said that Gervin didn’t know if he wanted to play for the Spurs. The Spurs dispatched a demand letter that Gervin could not play for anyone but the Spurs. The Full Court Press In a minor story, it was reported on January 31 that the ABA filed an antitrust suit in federal court in San Francisco against the NBA seeking over $300 million in actual damages. The suit alleged that, beginning in 1949, the NBA conspired to monopolize professional basketball, that the NBA restricted acquisition of players by the ABA, and that the NBA controlled television coverage. On Friday, February 1, the Spurs filed suit against Foreman and the Squires in federal court in San Antonio, and the case was assigned to Judge Adrian Spears. The Spurs sued for breach of contract and sought a temporary restraining order to prohibit the Squires from interfering with Gervin’s playing for the Spurs. That same day, in a conference call, Commissioner Storen announced formally that the Gervin deal was not approved, and Storen followed with a telegram stating, “[T]he Virginia Squires retain title to the player.” Storen, as Commissioner, then intervened in the suit. The TRO hearing would be scheduled for February 6. Judge Spears was quoted in the February 5 San Antonio Light as saying that all he knew about the case was what he had “read in the papers.” And there would be plenty to read in the papers. Gervin on Ice In the meantime, the Spurs convinced the Iceman that San Antonio would be the best place for him. So the Spurs arranged to have Gervin secretly flown to San Antonio, where he was picked up at the airport by Macon. Unbeknownst to the Squires and the Commissioner, Gervin was hidden in a San Antonio hotel under a false name.

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Gervin missed the Squires’ February 5 game in Utah. The papers speculated that Gervin might have grabbed a flight to New York with the intention of jumping to the NBA. Some well-placed misinformation, that. On Wednesday, February 6, the TRO hearing was held. J. Burleson “Burley” Smith and Larry Macon represented the Spurs. Fred Clark of Nicholas & Barrera represented the Squires. George Spencer, Sr. represented the Commissioner. Judge Spears granted the TRO, remarking, “I hate to see a man handled like can goods” and, “unfortunately, the one most directly concerned, Mr. Gervin, has not even been made a party to this suit, and it must be disconcerting to him.” McCombs recalled that Judge Spears said that “there is something unconstitutional about prohibiting a man from making a living.” So Gervin got to play for the Spurs, at least for the next ten days. Storen was quoted in the papers as saying, “This is just the first skirmish in a many-battled campaign.” McCombs recalled that Storen told him after the hearing, “No court will uphold this. You just lost your money.” Meanwhile, Foreman had signed an agreement with some Norfolk businessmen to buy the Squires, but that deal was dependent on Gervin’s staying with the Squires. The Squires’ buyers intended to present the tentative contract for approval to the ABA board of trustees. The papers reported on February 6 that Gervin was in San Antonio to negotiate a Spurs’ contract pending the outcome of the suit. Actually, the Money Went North On February 10, San Antonio Express sportswriter Dan Cook reported that the “225 Thou Went South,” surmising that Foreman had already spent the Gervin purchase price. On February 10, Denver played the Spurs under protest, the Denver coach alleging that the Commissioner told him that the Spurs must forfeit all the games that Gervin plays in. This sparked debate about whether the Commissioner had violated the TRO. “So Boo Me” (The Commissioner Comes to Town) An evidentiary hearing on the preliminary and permanent injunctions was scheduled for February 15. Storen arrived in San Antonio for the hear-

ing, with McCombs picking him up at the airport. Storen attended the Spurs game on February 14, and 9,000 Spurs fans booed him in unison. To his credit, Storen remarked, “I’d rather be booed by 9,000 than 900.” Spurs Coach Tom Nissalke, Drossos, and Storen all testified. McCombs recalls of the hearing, “I didn’t think we had a leg to stand on. We knew going into the deal that the Commissioner had not approved, but we went ahead anyway because we wanted Gervin so bad.” (It was later reported that Drossos agreed to a settlement that would have provided for a return of the money, a return of Gervin, and the Spurs getting forward George Carter from the Squires, but the

Squires’ new owners vetoed it.) Strangely enough, Foreman did not attend the hearing, and the papers reported that even his lawyers did not know of his whereabouts. On February 15, Judge Spears issued a preliminary injunction that Gervin could stay with the Spurs temporarily, with the promise that he would make a decision on the permanent injunction request within ten days. Storen remarked after the preliminary injunction ruling, “It’s a shame that a professional basketball league is being run by a judge in San Antonio.” Drossos, being magnanimous in his temporary victory, said that Storen “has nothing but the best wishes for the continued success of the San Antonio franchise” and that he and Storen “are still friends” and that Storen is “the best commissioner in pro sports, period.”

The Manu Ginobili bobble head collectible McCombs keeps on his office desk

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Foreman’s money problems weren’t getting any better. On February 21, his lawyers, Nicholas & Barrera, filed suit against him in state court for failure to pay their $5,000 retainer. Then the Phoenix Suns sued Foreman for failure to pay $10,000 owed them for an exhibition game. Although not a party to the suit, the heretofore quiet young Iceman made it known where he wanted to be. In the February 28 San Antonio Light, Gervin blasted Foreman, stating that he had been treated “like a horse for sale.” In the same article, Gervin stated, “The Spurs have good, solid ownership and they run a ball club like it should be run.” But then Gervin gave the Spurs a scare when he unexpectedly missed a March 5 practice to go to Virginia. As it turned out, he just wanted to get his car and terminate the lease on his apartment. Whew! On Monday, March 4, the ABA board of trustees held a marathon meeting that went through early Tuesday morning. The papers reported that it was rumored that the Gervin deal was discussed, but no one would own up to it. The Home Court Advantage On March 6, Judge Spears issued his decision granting the permanent injunction. To begin with, Judge Spears noted that the equities were with the Spurs because the Squires had not tendered back the $225,000 consideration. The ABA by-laws provided that the Commissioner “shall hear and finally decide any dispute” to which a player is a party, and that “all disputes between Member Clubs . . . shall be settled by the Commissioner.” Judge Spears found that there was no dispute between the Spurs and the Squires “until the Commissioner injected himself into the matter by persuading Foreman to refuse to deliver the player to the Spurs.” (The Squires had alleged that the Spurs had breached the contract, but Foreman never showed up to testify about it.) The by-laws further empowered the Commissioner to cancel or terminate any contract, after notice and a hearing. Judge Spears found that only informal discussions were held, for the most part, on the run, between hotels and hallways, and that could not be considered a full and fair hearing. Finally, Judge Spears noted that the by-laws allowed that the Commissioner could

reassign a player to another member club, provided that such a decision was approved and ratified by a vote of at least three-fourths of the member clubs, leaving open the possibility that the Commissioner could still try to undo the Gervin deal. (This perhaps had already been attempted in the March 4 marathon meeting, but in any event, it was not attempted again.) Macon recalled, “There were only ten teams in the league, and the subject team got to vote, too. Drossos had at least two other teams that would always vote with him, so it would have been impossible for Storen to get the three-fourths vote he needed.” No appeal was taken from the order. McCombs recalled that, after the ruling, Storen, figuring he’d been home-towned, told him, “I’ll never be in a courthouse against you in San Antonio again.” There Goes Ten-Cent Beer Night The Oscar Robertson suit continued to plod along. The ABA antitrust suit against the NBA in San Francisco was stayed pending the Robertson suit, but it was still out there. The ABA played its last season (’75-’76), and the merger with the NBA was finalized in the summer of 1976. The merger settlement was approved by the federal court in the Robertson suit (because it was a class action). McCombs recalled of the merger talks that “the NBA hated us, because we had taken their players and their referees. But the key to the merger was that NBA Commissioner Larry O’Brien convinced them that there was real liability in the San Francisco antitrust suit, maybe over $20 million.” The NBA only took four ABA teams: the New York Nets, the Indiana Pacers, the Denver Nuggets, and, of course, the Spurs. One of the supposed losers was the ABA’s Spirits of St. Louis, which was denied admission to the NBA. As a throw-in, the Spirits were given a percentage interest in television revenues from each of the four former ABA teams in perpetuity. Reportedly, the Spirits have received over $300 million in payments over the years and claim to be owed much more, with the payments never to stop as long as the NBA exists. This is the subject of the ESPN documentary “Free Spirits,” and it is said to be the greatest deal in the history of sports. In November 2011, the 1970 Robertson suit was re-opened

to litigate the Spirits’ claims for the television revenues. In February 2014, the Spirits settled the television revenue dispute with the NBA and its former ABA teams. The Sine Qua Non of the Spurs Drossos once said “George Gervin was to the Spurs as Babe Ruth was to the Yankees.” The Iceman won four scoring titles and, along with former Squires Rick Barry and Julius Erving, was inducted into the Basketball Hall of Fame. Some say that, without Gervin, the Spurs might not have made it into the NBA. It’s not too hard to envision an alternate history where Judge Spears rules against the Spurs, the Squires keep Gervin, new Squires ownership takes over, the Squires get into the NBA, and the Spurs are left out, but get a deal like the Spirits got. I don’t know how the Spurs’ investors would feel about that, but as a Spurs’ fan, I’m sure glad it didn’t happen. Steve A. Peirce practices business bankruptcy law at Norton Rose Fulbright US LLP. He can be reached at steve. [email protected] or 210-2707179. He profusely thanks Red McCombs and Larry Macon for talking Spurs history with him for this article. Larry Brown and Doug Moe were also Virginia Squires, and both became Spurs coaches. In the first NBA season after the merger, ten of the twenty-four all-stars were former ABA players. The Spurs hold an NBA record 15 straight 50-win seasons. As of March 2, 2015, the Spurs had the highest total winning percentage (.614) of any franchise in NBA history. Angelo Drossos, also without whom we might not have the Spurs, passed away on January 9, 1997. In the movie Semi-Pro, the Will Ferrell character (Jackie Moon) is a singer-turned-ABA-player-coach-owner, and Terry Stembridge’s catch-phrase “there will be another night” is used in the movie. To the author’s knowledge, no ABA player was ever traded for a washing machine.

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Texas Fracking Ban’s Brief Attempt to Fill the Environmental Regulation Void

By Rebecca Jo Reser I. The City of Denton’s Fracking Ban On November 4, 2014, voters of the City of Denton, Texas, approved an ordinance that banned fracking within the corporate city limits. While other cities in Texas, i.e., Bartonville, DISH, and Flower Mound, have passed ordinances restricting fracking,1 Denton was the first city in Texas to outright ban the practice. Denton’s ordinance made it a misdemeanor, subject to a fine of up to $2000 per day, to engage in fracking within city limits.2 On June 10, 2015, Denton’s City Council voted to repeal the fracking ban ordinance because it became unenforceable when Governor Greg Abbott signed into law House Bill 40, prohibiting cities from adopting such bans.3 Denton is one of more than 400 local governments in the United States that have enacted restrictions or bans on fracking. Vermont and New York have also banned fracking. This article examines the litigation and legislation generated by the Denton fracking ban, why the lack of effective federal and state legislation governing fracking has caused local governments to enact ordinances restricting or banning fracking, and the efforts to stop these local ordinances. Denton’s ordinance banning fracking triggered two lawsuits seeking declaratory judgments that the ordinance was unconstitutional and/ or preempted by state law. Patterson v. City of Denton4 was a challenge to the ordinance by the Commissioner of the Texas General Land Office, which leases state-owned mineral interests to operators within the City of Denton; and Texas Oil & Gas Association v. City of

Denton5 was a challenge brought by an oil and gas trade association.6 The legal dispute centered on the scope of jurisdictional authority that home-rule cities like Denton possess under Texas law to regulate exploration and development of mineral interests. Whether Denton’s ban on fracking conflicted with state law that expressly allows fracking was the constitutional issue raised in these suits, since the Texas Constitution prohibits homerule cities from enacting ordinances in contravention of state law. The Railroad Commission, Texas’ oil and gas regulatory agency, although not a party to the lawsuits, has been at the center of these disputes, since it is the agency with statutory authority to permit wells for enhanced recovery projects, including fracking.7 On November 7, 2014, the Texas Railroad Commission (“RRC”) announced that, despite Denton’s vote, the RRC would continue giving permits to companies wanting to drill inside the city limits. The issue raised by the preemption argument in both lawsuits was whether these RRC-issued permits had to comply with Denton’s municipal regulations banning fracking.8 This issue had implications beyond the Denton ordinance since a number of cities in the Barnett Shale region had also enacted restrictive ordinances that the industry claimed amounted to de facto bans on fracking.9 Recognizing that fracking in heavily populated areas creates a special set of problems, the RRC announced its intention to look more closely at the issue of drilling in urban areas, including more inspections of drilling sites. Another aspect of the dispute involved whether the ordinance represented a taking of property from

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mineral estate owners. While the lawsuits worked their way through the courts, the battleground expanded to the Texas Legislature where the following House Bills were introduced in the latest session: • H.B. 539 required a city to pay back the state for five years of lost state revenue resulting from a city’s regulation of oil and gas activities. This proposed new law required a municipality to request a “fiscal note” and an “equalized education funding impact statement” from the Legislative Budget Board for any oil or gas measure. • H.B. 540 required cities to submit any ordinance proposed by petition from its citizens to the state attorney general before ordering an election. • H.B. 40 expressly preempted the authority of “a municipality or other political subdivision” to regulate an “oil and gas operation” and gave exclusive jurisdiction to regulate an “oil and gas operation” to the state of Texas, specifically the RRC.10 Under the terms of HB40, a municipality or other political subdivision cannot “enforce an ordinance or other measure, or an amendment or revision of an existing ordinance or other measure, that bans, limits, or otherwise regulates an oil and gas operation within its boundaries or extraterritorial jurisdiction.” This bill did state that municipalities and political subdivisions retain authority to “enact, amend, or enforce an ordinance or other measure that regulates only surface activity that is incident to an oil and gas operation, is commercially reasonable, does not effectively prohibit an oil and gas operation,

and is not otherwise preempted by state or federal law.”11 According to a national online poll released by the University of Texas at Austin on April 28, 2015, a majority of Americans and Texans support allowing cities to ban hydraulic fracturing, even if state law otherwise permits it.12 This UT Energy Poll shows that 58% of the people surveyed nationally support giving cities the authority to adopt bans such as the one passed by Denton. Only 25% of those polled disagreed that cities should be allowed to ban fracking.13 The UT Energy poll surveyed 2,078 people from across the country and has a margin of error of 3 percentage points.14 By contrast, the Texas Oil and Gas Association earlier released a poll claiming that 75% of Texans agree that the state should be in charge of regulating the oil and gas industry.15 Texas is a constitutional homerule state that has adopted a legislative model. House Bill 40 was enacted because Texas courts require the state legislature to expressly preempt a subject matter with unmistakable clarity.16 Texas courts have long upheld a municipality’s authority to regulate oil and gas development. In Tysco Oil Co. v. Railroad Commission of Texas, the court established that municipalities in Texas have the authority to regulate oil and gas development within their corporate limits.17 The power to regulate at the municipal level is based on the protection of their citizens and property within the corporation limits, under the municipalities’ police powers.18 In Trail Enterprises, Inc. v. City of Houston, the City of Houston prohibited oil and gas drilling within its watershed.19 The court upheld the ordinance as “a valid exercise of the city’s police power,” finding it was reasonably related to the legitimate goal of protecting the water supply from pollution. In view of this legal precedent, House Bill 40 was enacted to expressly preempt the subject matter of fracking regulation with unmistakable clarity. II. Fracking’s Exemptions from Federal Environmental Legislation: The Halliburton Loophole Regulation of hydraulic fracturing operations can only be achieved at the state and municipal level due to several key exemptions in federal environmental legislation that would

otherwise regulate the fracking industry. When Congress considered whether to regulate more closely the handling of wastes from oil and gas drilling in the 1980s, it had the Environmental Protection Agency research the matter. EPA researchers concluded that some of the drillers’ waste was hazardous and should be tightly controlled.20 However, the final report handed to lawmakers in 1987 eliminated these EPA recommendations concerning oil and gas waste.21 Hydraulic fracturing was subsequently exempted from federal environmental law regulation under the Safe Drinking Water Act (“SDWA”); the Resource Conservation and Recovery Act; the Emergency Planning and Community Right-To-Know Act; the Clean Water Act; the Clean Air Act; the Comprehensive Environmental Response, Compensation, and Liability Act (“Superfund”); and the National Environmental Policy Act.22 Many of the exemptions for the above-listed statutes stem from, or were strengthened by, the Energy Policy Act of 2005 (“Act”).23 These exceptions came to be known collectively as the Halliburton Loophole because they are widely perceived to have come about as a result of the efforts of Vice President Dick Cheney’s Energy Task Force. Natural gas drilling companies have been given major exemptions from seven of the fifteen sweeping federal environmental laws that regulate most other heavy industries, and that were written to protect air and drinking water from radioactive and hazardous chemicals.24 When coal mine operators want to inject toxic wastewater into the ground, they must get permission from the federal authorities.25 However, when natural gas companies want to inject chemical-laced water and sand into the ground during hydrofracking, they do not have to follow the same rules.26 Proposed Federal Fracking Environmental Legislation Fails: The FRAC Act Environmental groups have been lobbying Congress to repeal the SDWA’s hydraulic fracturing exception since the Energy Policy Act passed in 2005. Feature films, TV shows, documentaries, and newspaper articles regularly dramatize the potential harms of fracking, spurring the push for federal

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regulation of fracking at the grassroots level. As local concerned citizens contact their elected public officials about alleged contaminated water wells and the like, the public outcry has not fallen on deaf ears. The Fracturing Responsibility and Awareness of Chemicals Act, appropriately shortened to the FRAC Act, was proposed in both the United States House27 and Senate in 2009, 2011, and 2013, to no avail. The proposed legislation has never made it out of committee because lobbying by the drilling industry has stymied most attempts to regulate the technology.28 The FRAC Act would impose federal regulation on hydraulic fracturing operations in two ways: (1) by repealing the SDWA’s current fracking exception; and (2) by requiring fracking operators to disclose hydraulic fracturing chemicals. Both the House and Senate bills propose removing the fracking exception and modifying the SDWA’s definition of “underground injection” to include “the underground injection of fluids or propping agents pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.”29 If the bills pass, the EPA would have to promulgate “inspection, monitoring, recordkeeping, and reporting requirements for fracking operations.30 Moreover, state Underground Injection Control (“UIC”) programs, not currently requiring operators to seek a UIC permit prior to fracking, would have to modify their UIC program and seek EPA approval.31 Consequently, all oil and gas operators intending to use hydraulic fracturing techniques would have to first obtain a UIC permit by showing that the underground injection of fracking fluids would not endanger underground sources of drinking water. The proposed bills would also amend the SDWA to require the disclosure of hydraulic fracturing chemicals.32 Prior to conducting any fracking operations and again within thirty days of completing operations, a company would be required to disclose “a list of chemicals intended for use . . . , including identification of chemical constituents of mixtures . . . , material safety data sheets when available, and the anticipated volume of each chemical.”33 The FRAC Act would require the disclosure to be made to the state (or the Administrator, if the EPA has primary enforcement responsibility

in the state) and would require the state to make the disclosure available to the public, “including posting the information on an appropriate Internet Website.”34 The bills would further require: Whenever the State or the Administrator, or a treating physician or nurse, determines that a medical emergency exists and the proprietary chemical formula of a chemical used in hydraulic fracturing operations is necessary for medical treatment, the person conducting the hydraulic operations shall, upon request, immediately disclose the proprietary chemical formulas or the specific chemical identity of a trade secret chemical to the State, the Administrator, or the treating physician.35 The additional disclosures in medical emergency situations would be required regardless of whether a confidentiality agreement has been reached.36 However, the FRAC Act explicitly states that it would “not authorize the State (or the Administrator) to require the public disclosure of proprietary chemical formulas.”37 The addition of disclosure mandates is particularly troubling for some drilling companies, fearful that disclosure requirements could force them to reveal valuable trade secret information. Calls for disclosure of hydraulic fracturing chemicals have increased as homeowners and others express concern about the potential presence of unknown chemicals in tainted well water near oil and gas operations. Even if Congress passes The FRAC Act, fracking would still be free of other critical environmental protections. Specifically: • Wastes from oil and gas drilling are exempt from the disclosure and hazardous waste handling requirements of the Resource Conservation & Recovery Act; • Oil and gas companies are exempt from the requirement to report releases of toxic substances under the Emergency Planning and Community Right-to-Know Act; • Oil and gas construction facilities are free of the Clean Water Act’s requirement to obtain storm water runoff permits;

• Oil and gas drilling sites are not grouped together for purposes of the Clean Air Act, which requires other industries to count smaller sources of emissions as a single unit to reflect overall impact on air quality; • Oil and gas drillers are exempt from the liability and clean-up cost provisions of the Comprehensive Environmental Response, Compensation, and Liability Act; and • Certain oil and gas drilling activities do not require an environmental impact statement under the National Environmental Policy Act. Chemical Disclosure Laws While thirty states have fracking, only twenty-two states have passed chemical disclosure laws and/ or regulations. No federal law or regulation governs the disclosure of the chemical ingredients added to fracturing fluids. Fracturing fluid composition varies with the nature of the formation, but it typically contains mostly water; a proppant to keep the fractures open, such as sand; and a small percentage of chemical additives. Some of these additives have been found to be hazardous to health and the environment.38 The Shale Gas Production Subcommittee of the Secretary of Energy Advisory Board (“SEAB”) has recommended public disclosure of all of the chemical ingredients added to fracturing fluids, on a well-by-well basis, with some protection for trade secrets.39 Chemical disclosure laws at the state level vary widely. Fifteen of the twenty-two state laws require direct public disclosure of chemical information by requiring that the parties post this information on the FracFocus chemical disclosure website.40 The states with these laws are Alabama, Colorado, Kansas, Louisiana, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, and West Virginia. Effectively, these states have entirely abdicated their responsibility to manage hydraulic fracturing chemical disclosure records by requiring or allowing reporting directly to FracFocus without any state policy which ensures that the

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state regulatory body takes control of the information and maintains it for posterity. FracFocus is a private website that could be taken down at any time. Additionally, FracFocus records contain no publication date and may be changed or updated by fracking companies at any time. When changes are made, the original record is not preserved, and nothing indicates that additions or deletions have occurred. In fact, FracFocus explicitly states that it “assume[s] no responsibility for the timeliness, deletion, misdelivery, or failure to store any” information. A few states give disclosing parties an alternative of submitting the information to a state agency. The level of detail required to be disclosed and the timing of these disclosure requirements varies from state to state. How states protect trade secrets likewise varies. Even if a disclosure law does not protect information from public disclosure, other state laws, such as an exemption in an open records law, may keep this information from disclosure. Disclosure often depends on how states protect trade secrets, as these protections may allow submitting parties to withhold information from disclosure at their discretion or to submit fewer details about proprietary chemicals, except, perhaps, in emergencies. A few states require the submission of Material Safety Data Sheets (“MSDSs”) for certain chemicals.41 MSDSs offer a relatively low level of disclosure, as the most specific details that parties currently must include on the data sheets under OSHA regulations are the chemical or common names of certain hazardous ingredients. A few state laws require at least some disclosure of information about fracturing fluid chemical composition before fracturing is performed, but these states typically require less detailed information to be provided before fracturing than afterward. By contrast, California’s final regulations regarding hydraulic fracturing, approved December 30, 2014, address the information operators must disclose to regulators and the public and regulate the storage and handling of well-stimulation fluids and wastes.42 Surface property owners within 1,500 feet of the wellhead or 500 feet of the subsurface horizontal path of

the well may request baseline and poststimulation testing of well and surface waters on their property that are fit for drinking or irrigation uses. The regulations also require operators to monitor seismic activity within an area five times the size of the stimulation area. Upon discovery of an earthquake of magnitude 2.7 or greater, the operator must notify the State Division of Oil, Gas and Geothermal Resources (DOGGR) and cease hydraulic fracturing activity until DOGGR is satisfied that the fracturing activity does not create an increased risk of seismic activity. Trade Secret Protections A state may require detailed disclosure of chemical information, but the parties may be able to avoid making significant disclosures to a state agency or the public if the state also provides a high degree of protection for trade secrets. The definition of a “trade secret” may differ under various states’ laws.43 Whether a particular law requires the public disclosure of trade secrets may have implications for whether a court would find that the law effects a taking of property under the Takings Clause of the Fifth Amendment to the United States Constitution. Such a finding could potentially require that the owner of the trade secrets receive just compensation.44 Certain states’ disclosure laws, like Michigan’s and West Virginia’s, lack trade secret protections. Sometimes, this is because the information required to be disclosed under their laws is not detailed enough to be considered a trade secret. By contrast, New Mexico’s rules allow parties to withhold all details about fracturing additives that the parties consider to be trade secrets.45 A few states, like Montana, allow withholding only if parties provide alternative information about chemical ingredients to regulators or the public for disclosure, such as the chemical family for the ingredients. In Montana,46 Colorado,47 and Louisiana,48 when parties withhold information and provide a less-detailed description of chemical additives, it appears that regulators may lack the authority to compel further disclosure in ordinary circumstances. However, some states make an exception and require disclosure in special circumstances like spills or medical emergencies.

Some state disclosure laws, as in Texas, give the state attorney general or a state agency the authority to approve or deny an exemption for trade secrets.49 These laws vary as to whether parties may withhold the information prior to the decision or must first submit it to the state. The Texas rule, which allows parties to initially withhold information, allows only landowners on or adjacent to the wellhead property, or a department or agency of the state, to challenge a claim of trade secret protection and lists procedures to be used by the state attorney general to decide whether to exempt the information from disclosure.50 In Texas, this challenge to trade secret entitlement must be made not later than the second anniversary date the relevant well completion report is filed with the RRC.51 Between April 2011, when the Texas oil and gas industry began disclosing the mix of water and chemicals it uses for hydraulic fracturing, and early December 2012, companies used terms such as “proprietary,” “secret,” or “confidential” 10,120 times while reporting data on 12,410 instances of hydraulic fracturing in Texas.52 In the Eagle Ford Shale, the trade secret exemption was used 2,297 times in 3,100 fracturing events.53 Twelve states’ disclosure laws make an exception to trade secret protections for situations in which a health care professional needs the information in order to provide medical care. A written confidentiality agreement, however, may be requested “as soon as circumstances permit.”54 The Pennsylvania General Assembly, for example, enacted House Bill 1950 (Act 13) in February 2012, regulating hydraulic fracturing and the disclosure of chemicals used in the process.55 Part of this new legislation permits healthcare professionals to access proprietary information, otherwise subject to trade secret protection; however, Act 13 mandates that the requesting healthcare professionals first sign a private confidentiality agreement. There is an emerging debate extending across the states proposing similar legislation as to whether requiring a confidentiality agreement exposes physicians to potential liability or loss of license. On the one hand, if physicians abide by the terms of the private confidentiality agreements, they may violate their

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ethical code and state statutory laws protecting public health and safety, and such action may also expose them to potential common law negligence claims. On the other hand, if physicians share the information obtained under Act 13, they may be in breach of contract under the confidentiality agreement.56 There are no exceptions allowing disclosure to toxicologists or epidemiologists to conduct studies to assess hazards, to assess sampling, to design or assess appropriate protective measures or engineering controls, for medical surveillance or to conduct studies to determine health effects of disclosure.57 Chemical disclosure data is not searchable or machine-readable where it is currently stored. Many state disclosure websites are difficult to navigate. A few states mandate disclosures both before and after each fracturing treatment. Pre-fracturing disclosures specifically identifying the chemicals to be used would provide landowners with the identities of the chemicals they should test for when they collect baseline water samples prior to drilling. Additionally, it would assist emergency personnel and health professionals in responding to a spill or release by providing them with information about the identities of the chemicals that were used in the fluid.58 Baseline testing results could then be compared with results from post-well stimulation testing to see if any groundwater contamination occurred and, if it did, to possibly locate its source. Unfortunately, requiring an operator to disclose chemical information prior to hydraulic fracturing does not comport with realities in the field. The chemical composition of the fracturing fluid is often continually adjusted prior to treatment of the well, and so disclosures made prior to fracturing may not accurately reflect the actual chemicals that will be used. Other state disclosure laws (Louisiana59 and New Mexico60) require parties to submit information about the chemicals used to fracture a well at a single time following the drilling, fracturing, or completion of the well. III. State Enforcement and Regulation The information states gather regarding regulation violations varies widely.61 Pennsylvania has a public

database, accessible on its website. This database shows each violation, tracking it all the way through to any fine that is levied against a driller. But that is uncommon.62 As drilling in the state’s Marcellus Shale ramped up, the Pennsylvania Department of Environmental Protection raised permit fees and doubled the number of staffers regulating oil and gas. Still, the 117 fines it levied in 2010 accounted for only about 4% of the violations found.63 Many other states do not track violations, enforcement, and the number of penalties assessed against oil and gas producers. To find such information, state employees would have to go back through individual files, as RRC staff did for the Texas Sunset Advisory Commission review. Among those states are Wyoming, North Dakota and New Mexico.64 Without that kind of information, the Sunset Advisory Commission report said, regulators “cannot determine or ensure effective and consistent enforcement across the state.” Specifically the 2010 Texas Sunset Advisory Commission found that the RRC has an extremely poor enforcement record and limited enforcement capacity.65 While more than 60,000 wells were drilled in Texas from 2003 to 2008, representing an increase in production of 75%, inspectors and inspections rose only 6%.66 In 2009, field staff forwarded less than 4% of the approximately 80,000 oil and natural gas production-related violations to the agency’s central office for enforcement action.67 Although there were 18,000 reports of water-related violations in 2009, the RRC took enforcement action on less than 1% of the violations.68 The RRC has no record as to the number of serious violations that may have been included in the roughly 17,900 water pollution violations that did not go to enforcement.69 The RRC relies on the discretion of each district office to determine which violations should be forwarded for enforcement action, and it does not track data on operator violations in any way that would allow for evaluation of the efficacy of enforcement.70 The Sunset Advisory Commission concluded that the RRC’s enforcement process is not structured to deter repeat violations.71

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IV. Conclusion In conclusion, these federal environmental law exemptions and ineffective state laws on fracking are causing great concern to local governments because of the potential environmental impacts from fracking. Municipalities are experiencing fracking’s untoward effects on water resources, air pollution from the release of greenhouse gases, seismic stability, as well as noise pollution and traffic disasters.72 Local governments are especially concerned about fracking’s six potential impacts on water resources: (1) water withdrawals to provide the high volumes of water needed for fracking, which can affect surface or groundwater, including wetlands through water depletion; (2) polluted storm water runoff from the drilling site; (3) surface chemical or petroleum spills; (4) pit or surface impoundment failures or leaks that come from the storage of clean and used fracking fluid; (5) groundwater contamination associated with improper well drilling and construction; and (6) improper waste disposal of the fracking fluid and other waste pumped out of the well.73 When imminently faced with these environmental problems’ occurring, local governments have been compelled to enact ordinances that restrict or ban fracking to protect their communities. It will be up to the courts to determine whether the new Texas statute—HB 40— will prevail, preempting and otherwise negating local fracking ordinances with restrictions. Rebecca Jo Reser is a shareholder at the San Antonio law firm of Davidson, Troilo, Ream & Garza. Ms. Reser has litigated numerous environmental, commercial, and tort cases in state and federal courts throughout Texas. Ms. Reser also advises utilities, municipalities, and other entities regarding air, water, and carbon emissions regulations and litigation. She can be reached at [email protected]. ENDNOTES 1 Bartonville, DISH, and Flower Mound, Texas. See Local Actions Against Fracking, Food & Water Watch, available at http://www. foodandwaterwatch.org/water/fracking/ fracking-action-center/local-action-

documents/ (last visited April 10, 2015). 2 Tricia Rosendahl, Denton, Texas Bans Fracking—What’s Next, Hydrofracking, Texas, E2 Law Blog, January 12, 2015, available at http://www.gtlaw-environmentalandenergy. com/2015/01/articles/hydrofracking/ denton-texas-bans-fracking-what-next/ (hereinafter “Rosendahl”) (last visited May 4, 2015) (emphasis added): Denton is located in the middle of the Barnett Shale, one of the nation’s largest gas fields, with 277 wells inside city limits. Since many wells are grandfathered under older regulations, fracking has previously been allowed within a few hundred feet of homes. While the ordinance does not ban all drilling and would allow operators to keep pumping from wells already developed and fracked, the wells could not be fracked again. 3 Max B. Baker, Denton City Council repeals fracking ban, Star-Telegram, June 16, 2015 (last visited May 4, 2015). 4 Cause No. D-1-GN-14-004628, in the 53rd District Court of Travis County, Texas, filed 11/5/2014. 5 Cause No. 14-08933-431, in the District Court of Denton County, Texas, filed 11/5/2014. 6 Rosendahl at 1. 7 Id. 8 Id. 9 Dallas and suburbs Southlake and Flower Mound have also enacted ordinances that the industry considers de facto bans on drilling. 10 On May 18, 2015, Governor Greg Abbot signed H.B. 40, making it law immediately as it passed both chambers by more than a twothirds margins. New Mexico, Ohio, Colorado and Oklahoma also have similar legislation moving towards passage, as both chambers of these legislatures have passed a bill that limits local governments to “reasonable” restrictions on oil and gas activities. See Russell Gold, Texas Prohibits Local Fracking Bans, Wall St. J., May 18, 2015 available at http://www.wsj. com/articles/texas-moves-to-prohibit-localfracking-bans-1431967882 (last visited May 19, 2015). 11 Id. 12 Baker at 1. 13 Id. 14 Id. 15 Id. at 2. 16 Dallas Merch.’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993). 17 Tysco Oil Co. v. R.R. Comm’n of Tex., 12 F. Supp. 195, 200-01 (S.D. Tex. 1935). 18 Id. 19 Trail Enters., Inc. v. City of Houston, 957 S.W.2d 625, 628 (Tex. App.—Houston [14th Dist.] 1997, pet. denied). 20 Ian Urbina, Pressure Limits Efforts to Police Drilling for Gas, N.Y. Times, Mar. 3, 2011, available at http://www.nytimes.

com/2011/03/04/us/04gas.html?_ r=1&ref=drillingdown, (last visited May 4, 2015). 21 Id. 22 Brady, William J., Hydraulic Fracturing Regulation in the United States: The LaissezFaire Approach of the Federal Government and Varying State Regulations, available at http://www.law.du.edu/documents/facultyhighlights/Intersol-2012-HydroFracking.pdf (last visited Feb. 12, 2015). 23 Id; Kaoru Suzuki, The Role of Nuisance in the Developing Common Law of Hydraulic Fracturing, 41 B.C. Envtl. Aff. L. Rev. 265, 273-4 (2014). 24 Ina Urbina, Pressure Limits Efforts to Police Drilling for Gas, N.Y. Times, March 3, 2011, http://www.nytimes.com/2011/03/04/ us/04gas.html?_r=0 (last visited May 19, 2015). 25 Id. 26 Id. 27 FRAC Act, H.R. 1084, 112th Cong. (2011). The House bill was sponsored by Rep. Diana DeGette (D-CO) and currently had 37 cosponsors. FRAC Act, H.R. 1135, 113th Cong. (2013). Sen. Robert Casey, Jr. (D-Penn.) and 4 other senators re-introduced the Fracturing Responsibility and Awareness of Chemicals Act (FRAC Act) in June 2013, matching a companion bill filed in the House of Representatives. This was the third time that the FRAC Act has been introduced in Congress, but it has never made it out of committee. 28 FRAC Act, S. 587, 112th Cong. (2011). The Senate bill is sponsored by Sen. Robert Casey, Jr. (D-PA) and currently has 7 co-sponsors. The bill was referred to the Senate Committee on Environment and Public Works. Hearings were held on the bill with the Subcommittee on Water and Wildlife (April 12, 2011). 29 FRAC Act, H.R. 1084, 112th Cong. § 2(a) (2011); FRAC Act, S. 587, 112th Cong. § 2(a) (2011). 30 42 U.S.C. § 330h(b)(1)(c). 31 Id. § 330h(b)(1)(b). 32 FRAC Act, H. R. 1084, 112th Cong. § 2(b) (2011); FRAC Act, § 587, 112th Cong. § 2(b) (2011). 33 42 U.S.C. §330h(b)(1)(c). 34 Id. § 330h(b)(1)(b). 35 FRAC Act, H. R. 1084, 112th Cong. § 2(b) (2011); FRAC Act, § 587, 112th Cong. § 2(b) (2011). 36 Id. 37 Id. 38 Department of Energy, Modern Shale Gas Development in the United States: A Primer, ES-4 (2009) at 62. (hereinafter “Department of Energy Primer”), available at http:// energy.gov/sites/prod/files/2013/03/f0/ ShaleGasPrimer_Online_4-2009.pdf, (last visited Feb. 12, 2015). 39 Department of Energy, Shale Gas Production Subcommittee Second Ninety Day Report 1

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(2011), available at http://www.shalegas. energy.gov/resources/111811_final_report. pdf, (last visited Feb. 12, 2015). 40 http://fracfocus.org/. This site has all state hydraulic fracturing regulations linked to it. 41 Id. at 5-6, 17. Employers are required to use MSDSs to warn employees of certain hazardous chemicals in the workplace under the Occupational Safety and Health Act. See 29 C.F.R. §1910.1200. 42 SB 4 Well Stimulation Treatment Regulations, available at http://www.conservation. ca.gov/index/Documents/Text%20of%20 Proposed%20Regulations%20%20SB%20 4%20Well%Stimulation%20Treatment%20 Regulations.pdf, (last visited Feb. 12, 2015). 43 See U.T.S.A. §1(4) (1985). A few states continue to rely on the definition provided in the Restatement of Torts, §757 cmt. b (1939). Texas provides a definition of “trade secret” within its chemical disclosure law that is based on the Restatement definition. 16 Tex. Admin. Code §3.29(a)(26). 44 See generally Ruckelshaus v. Monsanto, 467 U.S. 986 (1984) (holding that when the government discloses trade secrets that a party has been required to submit to the government by law, a taking could result in some circumstances); Philip Morris v. Reilly, 312 F.3d 24 (1st Cir. 2002) (en banc) (holding that a law that compels disclosure of a party’s trade secrets may effect a taking). 45 N.M. Admin. Code §19.15.16.19(B). 46 Mont. Admin. R. 36.22.1016. 47 Colo. Code Regs. §404-1:205A(b)(2)(B)-(C), (d). 48 57 La. Admin. Code tit. 43, §118(C)(2)(a). 49 16 Tex. Admin. Code §3.29(e)-(f). 50 Id. 51 Id. This law was heavily supported by a group of 12 gas producers, seeking to appease the public outcry for disclosure, while keeping their chemical formulas secret. Rebecca Jo Reser, State and Federal Statutory and Regulatory Treatment of Hydraulic Fracturing, 80 Def. Cous. J. 90,104-5 (Jan. 2013) (citing Ben Casselman, ‘Fracking’ Disclosure to Rise, Wall St. J., June 19, 2011). 52 Jennifer Hiller, Exact Mix of Fracking Fluids Remain a Mystery—What’s Being Put in Ground Stays Buried, Express News, February 2, 2013, available at http://www.mysanantonio.com/ news/energy/article/Fracking-formulas-stillsecret-4246634.php. 53 Id. 54 This may be intended to ensure that a disclosing party preserves any trade secrets disclosed, as trade secrets may be destroyed if revealed to a third party without a confidentiality agreement. 55 Eric Sando, Placing Physicians Between Scylla and Charybdis Chemical Disclosure Law Requiring Health Professionals to Sign Confidentiality Agreement Creates Risk of Liability for Physicians and Impedes Protection

- Continued on page 26 -

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Plan a gift to the St. Mary’s University School of Law through your estate. Simply ask your estate lawyer to use the following language in your will: I give, devise and bequeath to St. Mary’s University School of Law, a not-for-profit organization located in San Antonio, the sum of (dollar amount/or percentage/ or residue) of my estate as an unrestricted gift (or for a specific purpose).

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Justice By Judith Wemmert In they come, heavy with sorrow. Searching for hope, dreading tomorrow. Lips confess such a sad story. Truth has lost all shades of glory. Off to the lady looking for solace, Realizing no robe raises a chalice. What of forgiveness, mercy and grace? None to be found in a soulless place.

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Color of Justice By Justice Rebeca C. Martinez

O

Fourth Court Update

n the heels of an inspiring Mid-year Conference in Chicago, I am reinvigorated to focus on the tasks that lie ahead for me as Director of District 11 (TX, OK, AK) to further the missiondriven objectives we at the National Association of Women Judges (NAWJ) have committed to accomplishing this year. “We” includes our newly instituted State Chairs—341st District Judge Beckie Palomo of Laredo, and 419th District Judge Orlinda Naranjo of Austin, who as our former District Director is my predecessor. I am aware on a daily basis of the privilege and responsibilities given to those of us serving the public in our judicial capacity, and today pensively distracted by the current tragedy suffered by our Nepali members, including Retired Supreme Court Justice Sharada Shreshtra, one of our International Association of Women Judges (IAWJ) sisters in the Kathmandu area. Gratefully, after a long weekend following the earthquake, she responded by email to report she was safe but sleeping in her car with her family. The death toll has risen past 7,000 and the continued threat of landslides and aftershocks is just unimaginable. I am very proud of our worldwide network of women judges lending support to our colleagues, particularly the women judges of Nepal who just in November led a judicial education program to advance human rights and access to justice, and to promote women’s access to the courts. Our prayers go out to the many teachers, parents, and students who participated in the anti-rape awareness program in the hope that they too survived this horrendous disaster. Together with IAWJ, we continue building networks of support in over seventy countries and areas around the world, including Afghanistan, Ghana, Nigeria, Egypt, Haiti, and Libya. At last year’s NAWJ Annual Conference in San

Justice Rebeca C. Martinez with United States Supreme Court Justice Sonia Sotomayor

Diego, I was honored to meet many of them. One signature NAWJ project we have installed in Texas is our Color of Justice Program (COJ), designed to engage girls, particularly in impoverished areas, to participate and aspire to join our legal profession. I’m pleased to report that the Bexar County Women’s Bar Association (BCWBA) will partner in implementing our COJ Program in the coming months with the assistance of many of our local female jurists, practitioners, and sponsors who share NAWJ’s mission to ensure equal and meaningful access to justice for all and, in particular, to mentor on many levels the generations of young women who will assume leadership roles. This past spring, Judge Palomo and almost every female state and federal judge attended COJ Programs hosted in Austin—in partnership with UT Law’s Justice Center and Travis County Women Lawyers Association—and Laredo. In addition, COJ Programs are planned for San Antonio and other Texas cities in the upcoming months. The programs are aimed at introducing minority students to a diverse group of minority judges, lawyers, and law students whose stories illustrate the many career options available in the law and judiciary. Lastly, I must share two wonderful experiences I had with some of our Texas members. First, we joined over 150 of the 1,064 female state judges at the State Capitol on Texas Female Judges Day,

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April 13, 2015, recognized by Senate Resolution No. 535 and sponsored by Senators Royce West and Joan Huffman. Thank you to our local judges who attended! Second, I realized a longawaited dream to visit with Justice Sonia Sotomayor, our keynote speaker in San Diego. Who knows? Maybe we’ll see her in San Antonio at a future NAWJ event! All those interested in getting involved with NAWJ and BCWBA programming, please attend an upcoming BCWBA meeting or event or reach out to BCWBA Treasurer-Elect Hella Scheuerman, Director Brittany Weil, or me at Rebeca.Martinez@txcourts. gov. Interested in joining NAWJ? Visit NAWJ.org to join online or download an application. Membership is open to both men and women, active and retired federal, state, tribal, military, and administrative judges at both the appellate and trial levels from every state, law clerks, attorneys, and law students. Justice Rebeca C. Martinez has served on the Fourth Court of Appeals since January 2013. Justice Martinez previously served for U.S. Magistrate Judge Eduardo E. de Ases for the Western District of Texas, for Justice Federico G. Hinojosa on the Thirteenth Court of Appeals, and practiced trial law for over twenty years.

National Association of Women Judges Meeting in San Diego

Texas Female Judges Day at the State Capitol on April 13, 2015

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Federal Court Update By Soledad Valenciano and Melanie Fry

Federal Court Update

If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Soledad Valenciano or Melanie Fry by phone at 787-4654 or 554-5546 or by email at [email protected] or [email protected] with the style and cause number of the case, and the entry date and docket number of the order. Removal; Copyright Infringement Van Steenburg v. Hageman, SA-14-CV976-DAE (Ezra, Mar. 31, 2015) Plaintiff brought state court suit for breach of contract and conversion related to an agreement for plaintiff to use a business premises provided by defendant to develop a new technology. Defendant alleged that the parties had a joint venture for defendant to provide financial support and plaintiff to develop the technology for the joint venture’s profit. Plaintiff filed a patent application as sole inventor, refused to assign ownership to the venture, and began working with a third party to develop the technology. Defendant filed a counterclaim for copyright infringement of joint venture intellectual property and removed the case. Court denied plaintiff’s motion to remand. Although federal jurisdiction generally cannot be based on a counterclaim, 28 U.S.C. §1454 provides an exception for copyright counterclaims. Removal under §1454 is governed by §1446, which requires removal within 30 days after receiving the initial pleading, and which does not contemplate counterclaims as the basis for removal. Court noted “inherent tension” between §1454 and §1446. Court did not resolve the tension, but rather found good cause to extend the 30-day deadline as counterclaim was not proper until

copyright was registered, which occurred after removal deadline. Defendant did not waive right to remove, because waiver turns only on actions taken after a case becomes removable. Court exercised supplemental jurisdiction over plaintiff’s state law claims. Although plaintiff’s claims related only to providing financial support to defendant and defendant’s claims related only to plaintiff’s promises to keep its work confidential, court found the claims involved common issues of the terms of the parties’ agreement. Unprofessional Attorney Conduct; Foreclosure; Temporary Restraining Orders Guevara v. Green Tree Servicing LLC, SA14-CV-756-XR (Rodriguez, Apr. 14, 2015) This order is an important read for all members of the bar, especially those in the area of foreclosure sales. Although the motion before the court was a motion to withdraw, the majority of the order addresses the broader issues of the unprofessional and discourteous handling of a case by a named San Antonio attorney, the ethical problems lawyers trigger when they file for TROs in foreclosure cases (which have inundated Texas federal courts in recent years), and important reminders regarding attorneys’ ethical obligations, courtesy, and case management. Court recounted the movant’s history of unprofessional conduct, including refusing to apply for admission pro hac vice, failing to notify the court that his engagement was limited to the TRO, neglecting court notices, and failing to respond to dispositive motions. Court noted that every judge in the San Antonio Division had been forced to deal with the attorney’s waste of the court’s time. In the present case, the attorney admitted to being asked to

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file a TRO by a real estate agent, and court noted his apparent failure to conduct any independent research into the claims of his “clients.” Court expounded that this appears to be a common practice in Texas. Plaintiffs file meritless claims and ask a state court for a TRO to block an imminent foreclosure sale, banks remove the cases, and federal courts are left to clean up the mess, almost always dismissing the cases for lacking bases in law or fact. Court granted the attorney’s motion to withdraw, based in part on his lack of knowledge of federal court practice. Court ordered the attorney to file a copy of the order with any federal court to which one of his cases has been removed, any federal court where he applies for admission or appearance, and any proceeding in which he files an application for TRO in a foreclosure case in Texas state court. Attorney was further ordered to advise the state court judges in those proceedings of the order prior to obtaining the TRO. A copy of the order was sent to attorney’s clients. Application for Fees; Disciplinary Rules Kingdom Fresh Produce, Inc. v. Delta Produce, LP, SA-14-CV-22-DAE (Ezra, Mar. 25, 2015) Bankruptcy court granted Special Counsel’s applications for fees for adjudicating certain Perishable Agricultural Commodities Act (PACA) claims. District court vacated bankruptcy court’s orders in part, and Special Counsel appealed rulings to the Fifth Circuit. Pending appeal, Special Counsel advised district court that the funds had been placed in his 401(k) account, and court ordered that they remain there until the Fifth Circuit’s judgment. Court denied PACA claimant’s motion to reconsider. Order did not permit

a violation of Texas Disciplinary Rule of Professional Conduct 1.14 regarding the duty to keep separate funds in which both the lawyer and another person claim interest. The funds in question were courtordered fee awards, and without a stay pending appeal, the judgment was executable and the attorney was entitled to the funds he had been awarded. Rule 1.14 does not apply to the disposition of attorney’s fees whose resolution is pending appeal. Special Counsel’s attorney’s ex parte communication advising the Court of the location of the funds was a permissible administrative formality, and notification that the funds were in the 401(k) account was not a “surprise” that affected the court’s ruling. Court denied motion for reconsideration, but, out of an abundance of caution, ordered Special Counsel to submit affidavits demonstrating his ability to repay the funds if ordered to do so by the Fifth Circuit. Mootness Unincorporated Non–Profit Association of Concerned Eastside Citizens and Property Owners v. City of San Antonio, No. 5:09– CV–905 (Pitman, Apr. 21, 2015) Court undertook de novo review of Magistrate’s Memorandum and Recommendation. Sisters/Servants of the Holy Ghost and Mary Immaculate (“Sisters”) wanted to operate a transitional home on their property (the “TH Property”). To do so, a special use permit was required and the base zoning designation would need to change from MF–33 to C–3. City Council passed the “2009 Ordinance,” rezoning the TH Property from MF–33 to C–3 and granting the TH Property a Specific Use Authorization to operate a transitional home. Citizens Association sued claiming the 2009 Ordinance constituted impermissible spot zoning, deprived its members of procedural and substantive due process, violated the equal protection clause, and amounted to unconstitutional takings. City amended the City Code (the “2011 Ordinance”), which allows transitional homes to operate on property with a base zoning designation of MF–33,

the same designation that the TH Property had prior to the 2009 Ordinance, so long as the City grants the property a Specific Use Authorization. Court held Plaintiff’s spot zoning claim was moot. Following the City Council’s intent that individual “clauses and phrases” in the City Code should be severed when possible, court found that even if it voided the rezoning portion of the 2009 Ordinance, the phrase containing the Specific Use Authorization would survive and the TH Property would revert to a zoning designation of MF–33 but keep the Specific Use Authorization to operate the transitional home. So under the 2011 Ordinance, Sisters could continue to operate a transitional home. Plaintiff’s alleged injury was therefore moot because it was no longer “likely to be redressed by a favorable judicial decision.” Plaintiff’s substantive due process claim for equitable relief was also moot because the 2011 Ordinance allows transitional homes to operate in areas with a zoning designation of MF–33 if a Specific Use Authorization is granted. Motion to Dismiss Cinco J., Inc. v. Pressure Trucks, Inc. and Rick Thone, SA-15-CV-214-XR (Rodriguez, Apr. 29, 2015) Court granted Thone’s motion to dismiss in a case arising out of a dispute over materials provided on credit by plaintiff to Pressure Trucks, Inc. Texas caselaw provides that a “suit on a sworn account” is an underlying substantive cause of action separate from Texas Rule of Civil Procedure 185. Texas common law also has a cause of action for

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“suit on an account” with anywhere from three to six elements. Court held that this substantive claim is not usurped by Federal Rule of Civil Procedure 11 and is applicable in federal court under the Erie doctrine. A court may consider documents incorporated into the complaint by reference when considering a motion to dismiss. The invoices attached to the petition were addressed only to “Pressure Trucks Inc.” and not the individual guarantor, Thone. Plaintiff only alleges Thone “guaranteed [Pressure Truck, Inc.’s] payment of all sums due to [plaintiff] as evidenced by the Personal Guarantee” attached to the petition. Plaintiff did not allege he “sold goods, services, wares, and merchandise” to Thone, or that Thone was in any way connected to the unpaid account except through the guarantee. Johnson alleged no facts to support the first element of a suit on an account (or suit on a sworn account). Therefore, because Johnson did not properly allege a sale or delivery of goods or services to Thone, Johnson’s suit on the account against Thone was dismissed.

Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC. Melanie Fry practices commercial litigation and appellate law with Dykema Cox Smith.

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- Continued from page 19 of Public Health, 6 Drexel L. Rev. 215, 226 (Fall 2013). 56 Id. at 227. 57 See 29 C.F.R. § 1910.1200(i)(3) (2006) (providing various exceptions to trade secret privilege under OSHA regulation); 16 Tex. Admin. Code § 3.29 (2012) (providing none of the enumerated exceptions set forth under OSHA regulation). 58 American Petroleum Institute, Hydraulic Fracturing Operations--Well Construction And Integrity Guidelines §10.2 (2009), available at http://www.api.org/~/media/ Files/Policy/Exploration/API_HF1.ashx, (last visited Feb. 12, 2015). 59 La. Admin. Code tit. 43, §118(C)(1) (referring to La. Admin. Code tit. 43, §105 for the time frame). 60 N.M. Admin. Code §19.15.16.19(B). 61 Mike Soraghan, Oil and Gas: Puny Fines, Scant Enforcement Leave Drilling Violators with Little to Fear, Greenwire, November 14, 2011, available at http://www.eenews. net/stories/1059956366 (last visited May

4, 2015). Id. 63 Id. 64 Id. 65 R.R. Comm’n of Tex, Sunset Advisory Commission Staff Report 2 (2010) [[hereinafter SAC Staff Report], available at http://images.bimedia.net/documents/ rct_sr.pdf, (last visited Feb. 12, 2015). 66 Rachael Rawlings, Planning for Fracking on the Barnett Shale: Soil & Water Contamination Concerns, and the Role of Local Government, 44 Envtl. L. 135, 199 (Winter 2014). 67 SAC Staff Report, at 33. 68 Id. at 34. 69 Id. 70 Id. 71 Id. 72 Aaron B. Hopkins, The Ground Game: How Land-Use Ordinances Have Become the New Battleground for Natural Gas Extraction in the Marcellus Shale, 41 Rutgers L. Rec. 42, 46 (2013-4). 73 Id. 62

State Bar of Texas Honors San Antonio Lawyer At this year’s State Bar of May-June 2014 Texas (SBOT) Annual Meeting held in San Antonio, the SBOT honored the San Antonio Bar Association with a publications award for the San Antonio Lawyer. Congratulations are in order for SAL writer Steve Peirce! His piece, “The Message of Gustavo Garcia,” which appeared in SAL’s MayJune 2014 issue, was selected Message of Gustavo Garcia as the Best Feature/Human The The Eagle Ford, ‘It’s Déjà Vu All Over Again’ Interest Story by the SBOT’s Tips & Updates in a Mandatory E-Filing World Local Bar Services Committee. Becoming MoneyWi$e Starts in High School Peirce has won numerous awards in the past for his writing in SAL and is a valuable assest to the team. Our great editors and writers are what make SAL the award-winning publication is has been. Thank you for all of your hard work and dedication. PRST STD US POSTAGE PAID SAN ANTONIO TEXAS PERMIT 1001



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