Having failed at trial twice, lawyer/lobbyist/master thespian Tom West has put his lobbyist/news commentator hat back on and is re-arguing both cases in the press – first threatening a “takings” claim against both towns (not even close, not even in the same county as close – so no more of that from Tom Boy ) then talking out of both sides of his mouth as to whether his client(s) are going to pay him to appeal Dryden (Anschutz) : which was probably a no-go on Wednesday – as “too expensive” for his billionaire client:
Then on Friday, he mumbles about an appeal on Middlefield, “maybe – thinking about it real hard. . . “- that is if his client, Cooperstown corporate welfare queen Jennifer Huntington can scrounge up the fee – so that Flip Flop Tom can cobble together an appeal based on belatedly introducing a 31 year old mystery memo that:
1. Predates most of the relevant statutes – which would supersede the memo legally and temporally
2. Predates the published memorandums that accompanied those statutes
3. Was written by (someone ?) before most of the case law cited by both the Middlefield and Dryden courts
4. Precedes the published statements made by DEC officials by decades
5. According to Tom Boy (who claims to have actually held the mystery memo in his own hands) it contradicts the plain meaning of all the relevant statutes
Got that ? That’s the basis of the on again/ off again appeal of Dryden and Middlefield – depending on whether his clients cough up the dough.
Here is Tom West with his BS-the-press hat on, gassing away to a local reporter (check the histrionic headline) about the mystery memo he found under a rock:
In both cases, West submitted as anecdotal evidence of legislative intent an affidavit of Greg Sovas, former head of the DEC’s division of mineral resources, now full time fracking apologist. Sovas’s own published speeches contradict his affidavit, see page 2:
The Sovas evidence was reviewed by both courts, but was over-ridden by the published memorandums that accompanied the actual legislation, by the wording of the statutes themselves, and by case law that demonstrate that the state can regulate how gas wells are drilled, but a town can prohibit gas wells as part of a comprehensive land use plan. The courts were not persuaded by the Sovas affidavit, see below.
But now Fracking Tom tells a reporter that be would base an appeal of the Middlefield ruling on just such anecdotal an bit of evidence – a 31 year old memo.
Attached is the full Middlefield ruling – an encyclopedic compendium of the law regarding a town’s right to use zoning to prohibit industrial activities – and concluded that the state regulates how a gas well is drilled – towns regulate where they may – or may not be drilled.
When you can’t win on the law, argue the facts.
When you can’t win on the facts, argue the law.
When you can’t win on either, talk furtively about a 31 year old mystery memo.
The relevant passage in the Middlefield decision is shown below, where the court dismissed the affidavit supplied by Greg Sovas, see footnote 1 on page 8: