The first hearing on the appeal of the Dryden and Middlefield natural gas ban decisions took place last week in Albany and Dick Downey and our Rachael Colley were both there to observe.  Here’s how Dick saw it (with a few additional thoughts by Rachael).

The court in Albany Thursday was packed to standing room only.  Two cameras recorded the proceedings from the side.  Four judges sat in an arc in the small but elegant Appellate Division courtroom sat to hear the case on natural gas bans in two towns.  Above them was an inscription in marble — Excelsior –the Latin for “higher.”  And, that’s where this case is headed when the justices render a decision, probably in about 6 weeks.  It will go to the Court of Appeals, the highest court in New York.

The Dryden and Middlefield cases were bundled into one with Attorney Tom West representing Norse (formerly “Anshutz”) against Dryden and Attorney Scott Kurkosky representing Jennifer Huntington of Cooperstown Holstein against Middlefield. Several attorneys, including one from EarthJustice (Park Foundation funded), represented the two towns. 

The proceedings took about an hour. I have six pages of notes but I can’t weave them into a single narrative. From the start, the judges interrupted both sets of lawyers with questions, many of them arising from the lawyers’ written briefs, questions that often seemed to have nothing to do with the arguments being orally presented. It was hard for the listener to follow, not being familiar with the written briefs. So, the following are my very subjective impressions.

Two of the judges, Chief Justice Peters and Justice Spain, seemed to lean towards the anti side. The Chief justice was quick on the edgy question, quick on the law, but not so quick on the nature of the oil and gas business (as compared to mining) and its importance to our local and national wellbeing.  Justice Spain  seemed to be throwing softball questions to the anti lawyers, almost leading them on.

Both judges seemed to buy into the HOW/WHERE argument of the antis, an argument made in Supreme Court Judge Cerio’s decision against Jennifer Huntington last year. In that decision he was of the opinion the Department of Environmental Conservation tells you HOW to drill through its regulations. The towns can tell you WHERE to drill through their home rule right to zoning. More on Judge Cerio later.

A third appellate court judge, Justice Garry,  seemed to know the importance of a statewide, orderly system of gas extraction.

The fourth justice, Judge Stein, asked few questions. It was hard to get a read on her.

The issue before the court is legislative intent. Two parts of the Environmental Conservation Law have similar (but hardly identical) wording in their opening clauses.  They vary significantly in the rights appropriated to towns, however.  One, ECL – 23- 0303 (2), the Oil, Gas, and Solution Mining Law (OGSL) gives the towns power only over roads and taxes. The second, ECL-23-2703 (2) the Mining Land Reclamation Law (MLRL), allows zoning for mining operations.

The antis have successfully argued before three lower courts that these two laws are essentially the same and that the State (DEC) regulates HOW you operate and the Towns can tell you WHERE you operate – a highly questionable interpretation for anyone familiar with its implications for natural gas development, which is a world apart from mining as most of us know it.

Our two attorneys were impressive. It is hard to lay out their line of argument because they were interrupted by questions so many times. They handled these distractions professionally, answering the judges questions, disagreeing with courtesy when necessary, and continuing towards their conclusions. Tom West seemed to be honed in on the efficient recovery of oil and gas (O&G), the need to avoid waste, and the correlative rights of the landowners, issues written into the overall purpose of the legislation and which are best served by overriding State authority.

Scott Kurkosky’s argument backed up Mr. West’s by stressing the paramount State interest in oil and gas and the interests of our nation. In referencing the other law in question, the Mining Land Reclamation Law (ECL -23-2703 (2)), Scott reminded the court that we have had an energy crisis in our country, not a sand and gravel crisis. He reminded the judges that the ad valorem tax was the enticement to have towns give up home rule in this instance. (It stunned me when one of the judges followed up and asked Scott if legislative history was important. I thought that the purpose of this hearing was to determine legislative intent. How do you find intent without some history, Your Honor?)

Anyway, the anti attorneys cited Frew Run Gravel Product Inc. V Town of Carroll and the three lower court decisions as precedent. One lawyer attempted to dissect sentences to discover meaning. Not to demean the anti lawyer arguments (their arguments were hard to piece together, given the many times they also were interrupted by questions from the judges) but my general impression was that they felt they were riding a good horse (the three wins in lower court) and they didn’t want to go far afield from those wins.

My impression of the proceedings yesterday? I took the opinions of four lawyers in the court — three were moderately optimistic, one was pessimistic. Unfortunately, I’m with The Pessimist, given the lack of industry understanding on the part of some judges and their seeming willingness to accept natural gas production could be regulated in the same fashion as mining.  It looks to me as if this case will have to go the Court of Appeals before we see any justice for the forgotten man – the land poor landowner.

Nevertheless, I want to leave you with two crucial pieces of information and a comment. They are; (1) the intent of ECL-23-0303 (2) as expressed on the bill jacket sent to the Governor for signing; and (2) the footnote written by Judge Cerio dismissing the testimony of Greg Sovas, the man who wrote both pieces of legislation in question. I spoke to Greg and you need to know what he said.

First, let’s look at exactly what the bill jacket for ECL-23-0303 (2) says (emphasis added):

The provisions for supersedure by the Oil, Gas, and Solution Mining Law of local laws and ordinances clarifies the legislative intent behind the enactment of the oil and gas law in 1963. The comprehensive scheme envisioned by this law and the technical expertise required to administer and enforce it necessitates that this authority to be reserved to the State. Local governments diverse attempts to regulate the oil, gas and solution mining activities serve to hamper those who seek to develop these resources and threaten the efficient development of these resources, with Statewide repercussions. With adequate staffing and funding, the State’s oil, gas and solution mining regulatory program will be able to address the concerns of local governments and assure the efficient and safe development of these energy resources.

Say what you will and interpret to your heart’s content, but it sounds like the State is Top Dog to me.

Secondly, Judge Cerio’s footnote dismissing Greg Sovas’ testimony, part of the 11 page decision in Cerio’s finding against Jen Huntington, also offered the following insight into the superficial manner in which lower courts have dealt with this issue to date:

Plaintiff’s submission of the post-enactment Affidavit of Gregory H. Sovas, while anecdotally of interest, is not considered by this court with respect to the legislative intent of this body of law.

I spoke to Greg Sovas in Albany. Greg was the Director of the Division of Mineral Resources of the DEC at the time when ECL 23-0303 (Oil, Gas and Solutions Law or “OGSL”) and ECL -23-2703 (Mined Land Reclamation Law) were enacted. In fact, he wrote both pieces of legislation. (You don’t think some guy in the Assembly wrote it, do you? That job goes to the expert in the appropriate Department. Greg was The Man.)

After he wrote OGSL, people with gravel mining interests came to him and asked for a similar exclusion from local zoning control. Greg said no. He told them that their operations and scope of activities were in no way comparable to those of oil and gas. Oil and gas activities were temporary, tended to be sporadic, had a finite end, and usually covered a geological/geographically diffused area. Gravel pits were more limited in geographic space and pulled in a lot more consistent traffic over a longer period of time. And gravel pits are visually obtrusive. He intentionally included them under local zoning.

That’s the reasoning of the guy who wrote the law. His testimony was excluded. Go figure.

I would imagine Greg now wishes he had written one law in Urdu and the other in Classical Greek so the geniuses on the bench could discern they were different in intent because the govern vastly different activities with vastly different impacts.  Somehow, what was clear to all at the outset became muddled along the way.  The loser has been the landowner and now we wait for justice, hoping it arrives.

Rachael’s observations:

I saw it pretty much the same as Dick.  It was difficult to tell whether the judges were being devil’s advocates or were revealing their own perspectives.  Legislative intent necessarily relates to the nature of the industry and the attempt by antis to meld mining and oil and gas law has only served to muddy the waters and obscure that intent.  I am landowner myself and I have to ask who on that court was looking out for my rights.

Did any of the judges give a darn about Jennifer Huntington and what has happened to her as an arrogant town has usurped her rights?  I’m not sure I saw any evidence of this.  It looks like the entire regulatory system has been turned upside down to argue over semantics while the legislative intent, the plain wording of the statutes and the property rights of landowners have been tossed to the wind.  I am hopeful, but I can’t ignore these travesties.  We’ll be heading to the full Court of Appeals, no doubt, regardless of the outcome at the Appellate Division, but somewhere I hope someone is actually looking at the facts.