Tom West claimed he had a Mystery Memo that would cause the trial court to reverse the Middlefield decision. That this 31 year old Mystery Memo would, per Frackin’ Tom : “Forbid local land use ordinances”
http://thedailystar.com/localnews/x1615715264/Lawyer-1981-document-forbids-local-land-use-laws
The 31 year old Mystery Memo predates most of the case law and statutes cited in both cases. Meaning the case law and subsequent statutes would control. Not the 3 decades old Mystery Memo.
http://www.nofrackingway.us/2012/03/24/tom-west-fracking-thespian/
To reverse the ruling, the memo would have to controvert the clear meaning of both the statutes and the case law; which is:
The state regulates how a gas well is drilled. Municipalities regulate where gas wells are drilled.
That’s the way it works in (almost) every other state. And is how the court found it works in New York.
The flamboyant Mr West produced the 3 decades old Mystery Memo, attached:
http://www.westfirmlaw.com/flare/GovernorsProgramBill1981Memorandum.pdf
When I first read it, I assumed that Tom Boy had posted the wrong memo online. This memo is entirely about a state tax on gas wells. (Which is a mystery in itself). So I read it again and concluded the obvious: He never had a show stopper.
He was lying.
Because what he found contains no wording that had not already been considered by the trial courts - just some of the usual boiler-plate language regarding laws “relating to the regulation of drilling gas wells”
He was just messing with us - as part of the industry’s whacky Psy-Ops campaign ? The memo does nothing to controvert 31 years of case law, statute and published statements by the DEC. No wonder his client was balking at pursuing an appeal.
Then I noticed that it came out on a Saturday - April 1st - April Fool’s Day. Then I got it: it’s a gag , a joke played by that trickster Fracking Tom West ! What a jokester that guy is ! You have to hand it to him, he may be loser in court, but the guy has an off -beat sense of humor and flare for dramatic surprises.
What Tom West’s April Fools Mystery Memo actually addresses was a proposed state tax on oil and gas wells - 2% of their value - annually. Proceeds to be used by the state to pay for the costs of regulating the industry, plugging orphaned wells, etc. It’s not a bad idea - New York notoriously is the only state without a state production tax on gas wells.
http://www.scribd.com/doc/63145742/New-York-State-Gas-Production-Tax
But that has nothing to do with the Middlefield case - nothing in the tax proposal memo to overturn 31 years of case law, 3 decades of statutes and the well-reasoned Middlefield ruling:
http://www.scribd.com/doc/82732762/Middlefield-decison
Bravo, Fracking Tom: You got the press’s focused on the fact that gas production is untaxed by the state of New York. I have been trying to do this for years ! Why hadn’t I thought of the “mystery memo” ruse ? (Color me jealous)
The memo does not contradict a town’s constitutional right to regulate where a gas well may be drilled - or not drilled - via its land use ordinances. Nor does it contravene the clear meaning of relevant statutes.
The memo has some of the usual wording about the state’s right to regulate how wells are drilled, prohibiting town ordinances that “relate to the regulation”of such activities - but not their right to ban such activities under their land use ordinances. Towns have retained that right under the state constitution - and the DEC has consistently deferred to local ordinances - the DEC does not even have such ordinances - no noise ordinance, etc.
http://www.scribd.com/doc/63141534/New-York-Gas-Well-Zoning
Per David Slottje:
“These two lawsuits involve a single issue: whether ECL 23-0303(2) preempts local land use law authority – specifically, what “relating to the regulation” means. The law (not ECL 23-0303(2), but rather ‘the law’ in general) says that in order to answer that question we have to look at legislative intent…specifically, did the Legislature intend to preempt local land use authority.
Both trial courts accurately concluded that there was nothing in the Bill Jacket that would support any claim that the Legislature intended to preempt local land use authority.
West is now trying to re-characterize what the Middlefield court said…so that if there is even a smidgeon of wording indicating that the Legislature intended to preempt, then that smidgeon is legally sufficient to carry the day. That is not what the Court said or meant. What it meant was that ‘not only was there not sufficient evidence to find such intent, there wasn’t any evidence.’
But West is framing this now in the press (and in his pleadings) to characterize the standard as whether there was any evidence - ever – which he asserts there is, with the found memo. In other words, he is attempting to re-characterize the Court’s observation that there was no evidence to be a holding that if there was/had been any evidence (of intended preemption) - no matter how thin – then West’s client would have carried the day.
Again, that was not the holding, but a reading of West’s statements to the press and the papers he has filed makes it quite clear that he is attempting to reframe what the applicable legal standard is here, and who has the burden of proof.”
Reading the memo, the court will find no wording dissimilar to what it has already considered.
It will primarily learn that New York has needed a tax at the wellhead for the last 31 years.
And that Tom West is a show-boating lobbyist, an April Fool’s Day joker.
When he’s not losing court cases for billionaires and corporate welfare queens.
Chip Northrup
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Was the memo really a ‘mystery’? I’m pretty certain the town of Middlefield team knew about it -
Thanks to you Chips for sleuthing this out-and figuring the April Fool’s joke out.