Attorneys: Drilling ban suit may set precedent

Source: The Daily Star (Oneonta, NY), September 20, 2011
Posted on: http://envfpn.advisen.com

A lawsuit filed against the town of Middlefield last week that seeks to overturn its ban on gas drilling could set legal precedent in the state, several who spoke on the subject Friday and Monday said.

Cooperstown Holstein Corporation vs. Town of Middlefield was filed Thursday, said Scott Kurkowski of Levene, Gouldin & Thompson LLP of Binghamton, the law firm representing the Middlefield company, whose president is Jennifer Huntington.

The town passed a local law in June that prohibits heavy industry, including gas drilling. Other municipalities with similar bans include the towns of Springfield and Otsego.

The lawsuit seeks to declare the provisions of the town’s zoning law pertaining to oil and gas drilling void and in violation of New York state law, Kurkowski said.

The goal is to establish precedent in this case, he said.

The local ban violates New York’s Environmental Conservation Law, which states that all local municipalities are preempted from passing local laws relating to the regulation of the oil and gas industries, Kurkowski said, adding that a similar ban was overturned by a court in West Virginia.

“I feel the same will happen here,” he said.

According to an Associated Press story in the Aug. 15 issue of The Charlestown (West Virginia) Gazette, a court ruling invalidated Morgantown’s ban on Marcellus Shale drilling.

The Middlefield dairy business has about 540 registered Holsteins on 300 acres, Huntington said.

“I understand that others may disagree. That is why it’s going to court,” where the matter can be decided, she said. “It can be difficult to take such action because there are vocal opponents, but I believe my property rights are being interfered with.”

The ban prevents not only horizontal hydraulic fracturing, which is waiting a Department of Environmental Conservation review to determine whether it can proceed, but also conventional gas wells, of which there are already more than 14,000 in the state, she said. The original intent when she was approached about possible drilling a year ago was for vertical wells, she said, adding that the farm has a long history of environmental stewardship.

“The state has the ability to monitor and control the process,” she said.

Middlefield town attorney David Clinton, from the firm of Gozighan, Washburn & Clinton, said when the ban was passed, the town assumed there might eventually be litigation, although he was surprised it came from a landowner and not a gas company. He disagreed with the legal contention.

“The town is not regulating gas drilling. It is banning it,” he said. He cited a similar case, Frew Run Gravel Products vs. Town of Carroll, in which a town banned mining, and the New York State Court of Appeals upheld the ban.

Clinton said the Middlefield case could help clearly decide the issue for others, he said.

“It comes down to the law and how it should be interpreted,” he said.

The town has a 20-day period to respond, but it could be two years or more before a final determination is reached, he said.

There was also a case filed by a gas company against the town of Dryden last week. Depending on which proceeds quicker, either case could pave the way for others, Clinton said. He is handling the response, pending the board’s decision on how to proceed. It has not met since the suit was served, so it could go to the town attorney or turn to an outside firm.

It does not come under normal town business, and will cost the town extra to handle, he said.

People on either side of the issue running commented on the suit Monday. Town of Butternuts resident Teresa Winchester is opposed to hydraulic fracturing and is running for the town supervisor post held by James Powers.

She said she was hopeful Middlefield would prevail. The field of land use is complicated and requires a great deal of expertise. This could make it difficult to get a fair hearing, she said.

Powers, who is running for re-election, said mineral rights belong to landowners, and municipalities should not have control over them. He is chairman of the county Natural Gas Advisory Committee. He said he expects the state will go ahead with hydraulic fracturing when it has properly studied the ramifications, and municipalities need to be prepared for that.

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