Thursday, March 21, 2013

First report on Middlefield/Dryden appeal: Jim Kevlin (All Otsego/Hometown Oneonta)

First report from Middlefield / Dryden Appeals Court oral arguments.

Tentatively, Some Do Say Judges' Questions Seemed Sympathetic To Frack Ban
March 21, 2013
* TOP PHOTO:  Otsego 2000's President Nicole Dillingham, left, and Executive
Director Ellen Pope flank a lawyer from the Natural Resources Defense Counsel.

* LOWER PHOTO:  Jennifer Huntington, right, who sued the Town of Middlefield to overturn the ban,
and her lawyer, Scott Kurkowski weigh possible decisions.

Thursday, March 21, 2003


The wood-paneled courtroom of the Appellate Division, Third Department, state Supreme Court, was a who's who in Otsego County anti- and pro-fracking circles this morning, as a four-judge panel heard arguments on whether the Town of Middlefield's fracking ban should stand.

A decision – the Town of Dryden ban was also argued – is due in 6-8 weeks. Meanwhile, the ban's proponents – and some opponents – said they were encouraged by the back-and-forth between the justices and lawyers for the two sides.

Scott Kurkowski, representing Jennifer Huntington's Cooperstown Holstein Corp., argued before the judges – Presiding Justice Karen Peters, plus Elizabeth A. Garry, Leslie E. Stein and Edward O. Spain – that Middlefield was trying to do what no state has done outright: Totally ban exploration for and extraction of oil and gas.

"This situation is really no different from any situation where a town can decide whether it wants something or not," countered John J. Henry of Whiteman, Osterman & Hanna, representing the Town of Middlefield. Middlefield, for instance, bans chemical production within its boundaries, and that's never been challenged, he said.

The hearing was in a modern wood-paneled courtroom with the names of the counties in the Third Department carved at eye-level on a strip of marble that encircled the room (Otsego was in the back left corner) on the fifth floor of the Empire State Plaza's Robert Abrams Building for Law and Justice.

As the hearing began at 10 a.m. sharp, the seats were filled and spectators were lined three-deep against the back wall. A close-circuit camera had been set up in a nearby room to accommodate overflow. Interest was credited to the potential impact the decision on the towns' ban will have on fracking in New York State and beyond.

Attorneys in the Dryden case spoke first, then Kurkowski, Henry and Thomas West, attorney for Huntington and the Anschutz Exploration Corp., presented their arguments briefly then answered the judges' questions. By 10:30 a.m., it was over.

At one point, Judge Garry referred to "the Allstadt affidavit," submitted by Lou Allstadt, the Village of Cooperstown's newly elected trustee. "It's not about developing the resources at ANY cost," she paraphrased.

Kurkowski noted at another point, "No state has every allowed a total ban," and added that the Middlefield ban prevents Huntington from achieving "the greater public purpose."

"I thought it was a very hot bench," said David Everett, another Whiteman, Osterman lawyer who was conferring with Middlefield Town Supervisor Dave Bliss in the granite-floored downstairs foyer later. "There were a lot of questions."

After the session ended, Kurkowski said he was encouraged, but so did the anti-fracking contingent.

Lang Keith of Cooperstown, the retired Virginia circuit court judge, cautioned against reading anything into the judges' questioning. Still, he said, he considered the questioning "sympathetic."

"It's hard to tell," said Allstadt, but he added, "I don't feel bad about it."

Sustainable Otsego's contingent appeared more cautious. "It's anybody's guess," said county Rep. John Kosmer, D-Fly Creek.

S-O Moderator Adrian Kuzminski added, "The industry is so important that it can trump state law" by arguing "public policy is that drilling is for the greater good ... We would disagree."

But Otsego 2000 President Nicole Dillingham, herself a lawyer, agreed with Keith and Allstadt that the tone of the questions appeared favorable to supporting the ban.

She was accompanied by Otsego 2000 Executive Director Ellen Pope. Nearby was Harry Levine, Otsego Land Trust chair. And Larry Bennett, Brewery Ommegang communications director, who earlier this week had organized 27 local businesses to file an amicus brief in favor of maintaining the ban.

Seated in the courtroom from the local pro-fracking contingent were Dick Downey of the Unatego Landowners Association, Worcester Town Board member Dave Anderson and Ed Zaengle, the Town of Maryland geologist. They also appeared optimistic the decision would go their way.

Whatever the outcome, it can be appealed to the state Court of Appeals, New York's highest court.

May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

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