June 19, 2012

Lost memo proves weak

I wrote earlier about Tom West's claiming he had found a memo that would change the landscape of at least the Middlefield case on drilling and home rule, and I wasn't very impressed by it.

It seems I wasn't the only one. After ruling on procedural grounds that the memo really shouldn't be entered at this point to reopen the case, Acting New York State Supreme Court Judge Donald Cerio continued his discussion of whether the memo would change things if it were re-entered:

Plaintiff takes the position that the following passage contained in the 1981 Memorandum supporting A6928 (Plaintiff's Exhibit G) conclusively demonstrates the state's intention to displace or preempt entirely local municipal authority with respect to the regulation of the oil, gas and solution mining industry:

The provision 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 be reserved to the State. Local government's diverse attempts to regulate 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. (1981 Memorandum; Emphasis added).

A reading of this provision clearly references the 1963 predecessor provisions which, themselves, specifically addressed the "how" of oil, gas and solution mining or drilling, rather than "where" such activity may occur. The memorandum, by its very terms, pertains to the matter of program funding and serves to confirm the state's interest in bringing to beat the "technical expertise" necessarily required by state oversight, rather than disparate local control, to effectuate effective state-wide uniformity with respect to the manner and method by which such drilling would occur. Supercession, as referenced within the memorandum, did not serve nor was intended to preempt local land use regulation with respect to this industry. To conclude from a reading of this pass that the legislative intent was to disenfranchise local authorities from implementing local land use regulation would seem a leap of constructive interpretation which this court cannot embrace.

That's one less thing for Dryden to worry about as the Town waits for Tom West to get around to filing Anschutz's 'perfected appeal' of its loss to Dryden in the home rule case.

Posted by simon at June 19, 2012 2:22 PM in
Note on photos