Lawsuit against Town of Middlefield over fracking ban is dismissed.
The lawsuit filed against the Town of Middlefield by a large landowner seeking to overturn an ordinance banning hydraulic fracturing (gas drilling) has been dismissed by the State of New York, County of Otsego Supreme Court. This comes on the heels of a similar decision in the Town of Dryden. Both rulings affirm the right of municipalities to enact land use regulations to maintain the character and quality of life within its jurisdiction.
The following is a link to the court’s decision: Read PDF file here.
These two cases should serve to encourage Towns and Villages across the state to act prudently and swiftly to prohibit the reckless practice of fracking before the State begins issuing drilling permits.
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Just a few words….
What a great week! As we all know by now, Dryden won the lawsuit brought by Anschutz alleging that the town had no authority to use its land use powers to prohibit natural gas extraction within the town.
In what can only be presumed to be an attempt to take away some of the sweetness of this victory, Tom West, counsel for Anschutz and co-counsel in the Middlefield case, and his ilk have been been quoted in national and local reports with their threats that the industry may have lost the Dryden case but that that loss would quickly be followed up with (drum roll here) very large takings claims. The clear implication being, fine you won this single round, but we’ll be back and with bigger guns next time. Industry and landowner coalitions also began questioning the qualifications of the Cortland County judge that decided the Dryden case and predicted that surely the Middlefield case would be decided “correctly” and industry would prevail.
The Middlefield decision was issued today, and the judge in that case rejected West’s arguments as STRONGLY and EMPHATICALLY as Judge Rumsey in the Dryden case.
And to top this all off, Tom West told a Tompkins County reporter on Wednesday (so prior to the stunning defeat in Middlefield), that it was (in fact) NOT likely that Anschutz would pursue a takings claim in Dryden. (The original story is excerpted and posted below). We believe that this admission highlights the misleading posturing, puffing, and prancing about by industry is often reflective of neither their actual intentions nor the truth.
We have been saying for some time now that Towns had the right to zone out drilling activities and, with very limited exceptions that have not yet come to pass in the state of NY, there is NO rational basis to support a claim of regulatory taking liability. We have stated that the reason why Anschutz did not originally pursue a takings claim was because there was no takings claim that could be made successfully and they knew it. Even as the recognition and acceptance of our analysis and framework for enacting local land use prohibitions gained mainstream support among non-industry, non-landowner coalitions across the state, the natural gas industry and landowner representatives became increasing adamant that Towns could not zone out drilling. Landowner coalition members went so far as to threaten local legislators with PERSONAL LIABILITY for enacting such a law (on the alleged basis that the idea of attempting to exercise local control was so clearly illegal and with no basis or support whatsoever in the law that the absolute legislative immunity that all NY local legislators enjoy as a matter of US Supreme Court and NYS court rulings, could not and would not apply.)
Industry has, and surely will, continue to engage in bullying, intimidation and scare tactics against the citizens of the state of New York. But local elected officials across the state have stood strong and stood together, with the unflinching backing of so many of their residents in the face of these strong arm threats. This strength and resilience was tested by these lawsuits and the attacks. But because the members of the town boards in Dryden and Middlefield were willing to exercise their right to protect their citizens and stood firm in their convictions, we now have definitive answers from two separate courts that clearly support local community rights.
Helen and David Slottje
“We’re disappointed,” said attorney Tom West, whose Albany firm represented Anschutz. “But we remain confident in our position that municipalities cannot ban gas drilling.” Anschutz has 30 days from the decision to file an appeal, but West declined to predict whether Anschutz would do so. Although the plaintiffs argued that Dryden’s ban meant a loss of over $5 million the gas exploration company had invested in scoping out Dryden’s Marcellus shale layer and obtaining leases on 22,000 acres in the town, many of those leases expire soon.
West’s firm is also co-counsel in the Middlefield case involving a similar local prohibition. Although early reports (NYTimes 2/02/2012) quoted West saying Anschutz could sue Dryden under “takings” law, West said February 22 in an interview with the Dryden Courier, “I don’t know that they (Anschutz) would pursue a takings claim at this point. I do think we will see a takings claim somewhere in New York State.”