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Pro-Shale Attorneys Say New York Appeals Hearings Went Well

Attorneys for energy companies and landowners looking to advance shale development in New York State said Thursday morning's proceedings in state appellate court went well and they expect to hear rulings on two key cases in six to eight weeks, or by mid-May.

A four-judge panel at Appellate Division Third Department in Albany heard oral arguments in the case Norse Energy Corp. USA v. Town of Dryden (No. 515227), which were immediately followed by a second case, Cooperstown Holstein Corp. v. Town of Middlefield (No. 515498).

Thomas West of The West Firm PLLC represents Norse Energy Corp. ASA in the Dryden case. He said the judges were extremely well prepared for the day's hearings. "They seemed to understand all of the issues very well," West told NGI's Shale Daily on Thursday. "They understood concepts like prevention of waste and protection of correlative rights, which are important to our piece of the puzzle.

"I think they understood the case very well. They pressed both sides very hard and therefore were not very telling in which way they're leaning. So I think we just have to consider that fact that we did our best, they understand the issues, and now they have to do their job and make a decision."

Scott Kurkoski, an attorney with the Binghamton, NY, firm Levene Gouldin & Thompson LLP, represented dairy company Cooperstown Holstein Corp. (CHC) and its owner, Jennifer Huntington, in the Middlefield case.

"It went good," Kurkoski told NGI's Shale Daily on Thursday. "You never really know until you get your decision, but I think we were happy being able to make all of the arguments that we wanted to make this morning, responding to the court's questions."

In the Middlefield case, CHC filed a lawsuit against the town for a June 2011 zoning ordinance that bans oil and natural gas operations and some forms of heavy industry (see Shale Daily, Sept. 19, 2011). An Otsego County Supreme Court judge has ruled against the dairy (see Shale Daily, Feb. 29, 2012).

"The court did question the total ban," Kurkoski said. "That's always been an issue for us. We feel strongly that no court in the country has ever authorized a total zoning ban. And even though some states authorize some limited zoning, they never will allow a total zoning ban. And that's what we're doing here in Middlefield. They spent quite a bit of time on that issue, and you could see that the court was concerned about that."

Kurkoski said the defendants in the Middlefield case were relying on the state's Mined Land Reclamation Law as the crux for their argument.

"They're trying to use this mining case law as the precedent to decide this case the same way," Kurkoski said. "This morning we made the point very strongly that the laws are not the same. They have some similar language, but the language is different enough that it should control and give us a different result. Plus, the interests that we're talking about are completely different."

Kurkoski added that at one point during the hearing, he made a pointed response to one of the judge's questions.

"I said, 'Judge, we've never had a sand and gravel crisis in this country, but we've had energy crises before. And it's crucial for us to be able to produce energy in New York, to have a greater ultimate recovery of oil and gas, and protect Jennifer Huntington's correlative rights, her rights to market and drill for her minerals.'"

Anschutz Exploration Corp. (AEC) filed a lawsuit against Dryden in 2011 after the town passed an ordinance and a zoning requirement, similar to Middlefield's, that prohibited all oil and natural gas development activities (see Shale Daily, Sept. 21, 2011). But a Tompkins County judge disagreed with AEC's argument that Dryden violated the Oil, Gas and Solution Mining Law and ruled against the company in February 2012 (see Shale Daily, Feb. 23, 2012). Norse replaced AEC as lead plaintiff in the Dryden case last fall (see Shale Daily, Oct. 5, 2012).

Kurkoski and West agreed that a decision on both cases would probably be forthcoming in about six to eight weeks, or by early to mid-May. West said that if the four-judge panel were to deadlock, they would bring in a fifth judge and call for new oral arguments.

Both attorneys also agreed that should the municipalities and their environmental allies lose, the cases would surely be appealed to the top court in the state, the Court of Appeals. "No question about that," Kurkoski said.

West added, "Certainly if we win, it will be appealed. If we lose, I don't know. It all depends on whether or not there's the sense whether we can even get it to the Court of Appeals. It should go to the Court of Appeals. We'll just have to cross that bridge when we get to it."

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