A Pennsylvania judge denied a request by two Pittsburgh-area newspapers to make public documents relating to a settlement between several gas drilling corporations and a local family, stating that the newspapers failed to petition before the documents were sealed.
The Pittsburgh Post-Gazette and the Observer-Reporter in Washington County, Penn., sought to intervene in the lawsuit between Stephanie and Chris Hallowich and Range Resources, Mark West Energy Partners and Williams Gas/Laurel Mountain Midstream, to make the settlement agreement public. On Feb. 1, Judge Paul Pozonsky denied the request. The Post-Gazette plans to appeal the decision, according to the newspaper's attorney, Frederick N. Frank.
The newspapers argued the documents should be unsealed because there was a great public interest in the case and refuted the claim that the newspapers failed to object to the sealing of the documents while action was still pending.
In 2005, the Hallowich family purchased 10 acres of land in Washington County, which came with a gas lease with Range Resources signed by the previous owners.
The couple built a home on the property and soon after, four gas wells, a gas processing facility, a three-acre holding pond, compressor stations and access roads were built on properties bordering the land.
The Hallowiches filed a lawsuit for damages in May 2010, claiming the natural gas drilling near their home made their property worthless and had contaminated their water supply.
The suit was settled in a closed-door meeting with Pozonsky in August the next year. The case was sealed, and a gag order was placed on the parties involved.
Two reporters from the Post-Gazette were present in the courtroom for the settlement proceedings but were denied access to the proceedings, which took place in the judge’s chambers. The reporters informed a court official they were objecting to the closing of the court on behalf of the Post-Gazette. The Post-Gazette submitted a formal petition on Aug. 31. The Observer-Reporter later joined the complaint.
The defendants also argued the settlement should remain sealed because the Hallowiches' two children were involved in the settlement. The newspapers, however, said the Hallowiches did not oppose the opening of the records, and the case and the family, particularly the children, had been discussed at length in the media.
Stephanie Hallowich, who became a critic of the gas drilling industry, gave interviews to several media outlets, including the Post-Gazette and National Geographic magazine. In 2010, she told National Geographic that tests showed cancer-causing compounds ethylbenzene, toluene, styrene and tetrachloroethylene in the water and that the family paid about $5,000 over a 13-month period to have fresh water delivered to their home.
“This case has drawn national media coverage in which all parties participated,” Frank wrote in a brief. “This case has a wide ranging impact on issues related to natural gas drilling, a subject which has drawn intense coverage and discussion in public forums in recent months.”
At a hearing in October, the judge said the newspaper's petition may not be relevant because, under state law, intervention is only allowed when there is action pending in a case. Frank said the defendants did not challenge the newspaper's right to intervene in the initial filings.
"The judge on his own raises the issue of whether there was a right, and of course, the defendants jumped on that," Frank said.
Frank wrote in a second brief that “the issue was raised prior to the sealing of the record, but they [the reporters] were not afforded their full opportunity to be heard, as required by caselaw.” The brief notes that the Post-Gazette is unable to verify that the informal objection was noted in the official court record because the case has been sealed.
Other cases have held that there should be no time limit on a request to intervene to oppose sealing a proceeding or record to which there is a public right of access.
Most recently, Washington, D.C.'s highest court ruled that The Washington Post did not waive its right of access to jury questionnaires in the Chandra Levy murder trial by not filing a formal appeal the day the judge announced his plan to seal the documents. The Post had made informal requests before it officially moved to intervene.
Frank said the judge's decision goes against the precedent set by previous cases.
"The problem with this precedent is you generally do not know when a case will be sealed beforehand," Frank said. "The news media are generally not informed."
In November, the Hallowiches filed a second suit, claiming that Range Resources violated the confidential agreement and falsely stated it paid the family $550,000 for their property. The price paid was actually $100. The judge will review the case further before making a decision.