Friday, March 23, 2012

Fwd: For all NY Lists, from David Slottje: Take a deep breath before paying too much attention to Tom West's latest attempt at intimidation

From: David Slottje
Sent: Friday, March 23, 2012 7:55 PM
Subject: Take a deep breath before paying too much attention to Tom West's latest attempt at intimidation

Please post this to DRAC, ROUSE, GDACC, SO, Otsego-coalition, VeRSE, RAFT, Middlefield Neighbors, etc. listservs. I am not being lazy; I am asking because I do not have posting privs.

Before people get too exercised over the latest Tom West salvo, please keep the following in mind:

For several weeks prior to bringing suit against Dryden, West did multiple radio interviews, promising that he'd be bringing suit against the Town, including a claim for millions ($4.7MM, to be exact) for 'takings' liability. There is and was no such takings liability, but the idea was to bully other municipalities into believing that there was a meaningful risk, so that those other municipalities would refrain from passing similar laws.

When the papers were actually filed in the Dryden suit, lo and behold they did not contain any claim for takings liability, and in fact did not contain ANY claim for monetary damages, under any theory. Same thing in Middlefield: NO CLAIM made for monetary damages; simply a suit alleging that towns did not have the legal authority to use land use laws to ban the gas industry.

As numerous municipalities considered enacting similar protective laws (whether bans, or moratoria), the pro-frackers mobilized their forces and attempted to intimidate municipal boards, advising and in many cases demanding that those Boards wait - at least until the Dryden and Middlefield cases came down.

As increasing numbers of municipalities began to enact protective measures, the pro-frackers became increasingly desperate. (Even as I write this, several of the landowner coalitions have resorted to bribing their people to show up in force - whether or not they have any other connection to the town considering a protective measure – by doling out playing cards for each municipal board meeting attended, which can then be used to form poker hands to win prizes. I'm not making this up.)

They moved from town to town – wherever a board was considering the advisability of a moratorium or ban – pounding tables, telling the towns they'd be liable for millions and millions of dollars in takings liability, and often pointing at board members, telling them that they would be liable personally (i.e., in their individual, non-Board member capacities) for this mythical takings liability.


The Dryden decision came down on Feb. 21. It held unequivocally that NYS municipalities could, if they chose to do so, use land use law authority to completely ban the industry within their borders. Most (all?) lawyers would agree that that holding is not something pro-frackers would leave in place, if there was any meaningful likelihood that the decision could be overturned on appeal.

After Dryden was decided, West was quoted as saying that his client (Anschutz) might not appeal (!!!), but that if they didn't (appeal), they likely would bring a takings claim – and a very large takings claim at that.

Fast forward a couple of days, until just hours before the Middlefield decision came down (which ALSO upheld municipal land use authority to ban the industry), and another quote from West comes out: this one saying that it seems likely that Anschutz will NOT (emphasis not in original) bring a takings claim.

They could if they wanted, and it would be a no-brainer to win. And it would be for $4.7MM and lost profits, but they might just leave their $5MM on the table. Even though they could get it back if they wanted, and even they would most certainly win. But they might decide not to bring such a claim. Even though he had been promising since (at least) three weeks before he filed suit against Dryden that he WOULD be bringing such a claim. If you go to West's web site, it says he is a 'Super Lawyer.'

Please understand, even mediocre lawyers – let alone Super Lawyers – do not leave $5MM of their client's money on the table if there is anything they can do about it.

Here's what we think is going on:

The headline today should have been that Tom West, and by extension (counsel to the Dryden republican Party) Henry Kramer and all the others who threatened Dryden, were bloodied in their attempt to bully the Town Board and taxpayers into submission to the gas industry, and essentially admitted the same by electing not to appeal that decision.

West has been successful, however, in sidestepping what should have been devastating press (regarding the fact that Anschutz has elected to leave the Dryden decision in place), and in instead creating a new bogeyman for towns thinking about moratoria or bans to worry about: some 30 year old secret smoking gun memo - that DOES NOT appear in the Bill Jacket for the Gas Mining Statute (ECL 23-0303(2)) - which so far West is unwilling to share - with the reporter he called to discuss this piece of 'news,' or with anyone else. He says he's going to show it to the Middlefield judge first – better hurry, Tom, not much time left to appeal that one – to give that judge an opportunity to reconsider his decision. Seriously? Yeah, that's sounds like a good way to go...

We'll have to see whether and when West deigns to show the rest of us this smoking gun memo – and even then to see whether, like the Sovos memo appended to West's complaint, the smoking gun is admissible. (Any third year law student or first year lawyer could have told Mr. West that the Sovos affidavit was legally irrelevant, and so would be inadmissible. By the way, if that is not the case, why did West not appeal that ruling in the Dryden case? Because West is too busy, or because Anscutz can't afford the appeal? Oh, OK. Really?)

We'll all have to stay tuned to see what West has found, what it says (as opposed to what he tells the press it says), and whether it is legally relevant/admissible. But until we do, I hope there will not be too much hand-wringing in Middlefield, or anywhere else where pro-frackers are threatening to bankrupt towns with 'takings' claims.

Enjoy the weekend, and keep in mind that every single thing that the Tom Wests and Henry Kramers of the world have told you about the law in this area has been dead wrong. Period.

P.S. Go 'Cuse.


On 3/23/12 9:12 AM, "MM" <> wrote:

---------- Forwarded Message ----------

Begin forwarded message:

From: "XXXX
Date: March 23, 2012 8:01:24 AM EDT
Subject: [Middlefield] disturbing news

arch 23, 2010 Daily Star: Lawyer: 1981 document forbids local land-use laws <> - A lawyer involved in the attempt to scuttle the Middlefield ban on natural gas extraction said Thursday he has uncovered documents from three decades ago that support his contention that state lawmakers wanted to stop local governments from enacting land-use laws impeding drilling activities.

Lawyer Thomas West of Albany also told The Daily Star that he is inclined to appeal last month's decision by Acting State Supreme Court Justice Donald Cerio upholding the legality of the Middlefield zoning law, which keeps out gas drilling. But he said he is first going to present what he called the new information to the judge, hoping it will prompt him to reconsider the 11-page decision he issued Feb. 24.

"We're going to go back to Judge Cerio and try to straighten this out," West said in a telephone interview. "If he doesn't, well, that's why God made appellate judges."

West said that, with the assistance of a retired state Department of Environmental Conservation employee, he came across an archived bill memorandum after Cerio's ruling was issued.

He said the 1981 document goes to the heart of the case because Cerio had emphasized in his decision that he found "no support" for claims that the Legislature, by enacting the Environmental Conservation Law that year, had intended to abrogate the authority of local municipalities to enact land-use legislation.

In response to a request to provide a copy of the bill memo to The Daily Star, West said he would make the information available after he presents it to the judge.

The Middlefield lawsuit, brought against the town by dairy farm operator Jennifer Huntington, is one of two major legal challenges to efforts by local governments to ban gas drilling.

The other involves a similar local law enacted by the town of Dryden. In that case, a gas company, also represented by West, had its arguments similarly rejected.

David Clinton, the attorney for the town of Middlefield, said he expected that the legal team for Huntington would challenge the ruling.

"We're ready to move forward if they appeal," Clinton said. He said attorneys for the town carefully researched the legislative history of the 1981 law and did not find anything that indicated it was the intention of the Legislature to supersede the ability of municipalities to zone out drilling.

Gas-industry advocates have warned town governments not to enact such laws, arguing that the 1981 law empowers the state as the sole regulatory authority over gas and oil extraction.

Middlefield and Dryden were among the first local governments in New York to enact such bans while the DEC reviews draft rules that could be put into effect if and when the state allows horizontal hydrofracking for shale gas to begin in New York.

So far, Middlefield Town Supervisor Dave Bliss said, the town has incurred $73,246 in legal fees arising from the case. Supporters of the ban have donated $56,782 to the town for its legal expenses, leaving a gap of $16,464 that would have to be plugged by town funds, unless more contributions come in, Bliss said.

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