Starkey Citizens for a Clean & Healthy Environment
New York's Highest Court to Hear Dryden and Middlefield Appeals

Mary Anne Kowalski

Today, the Court of Appeals - New York's highest court - said that it will hear the respective appeals of Norse Energy and Cooperstown Holstein in their challenges to the home rule authority of New York municipalities to use their land use authority to prohibit gas drilling, including fracking, within their borders. Norse and Cooperstown have lost their arguments at both the trial court and appellate court levels, and two other trial court decisions have upheld municipal home rule authority to prohibit gas drilling.

(No New York court at any level has ever held that a local municipality does not have the legal authority to say that drilling is not allowed within its municipal borders.)

The Court of Appeals grants permission to appeal in cases of statewide concern, and of course the matter of home rule authority of local governments to determine the future and character of their communities is of statewide concern.

Norse Energy and Cooperstown Holstein will have 10 days from today's date to file a preliminary statement of appeal with the Court.

The Court of Appeals considers the preliminary statement, and then decides whether it will conduct a full appellate review (the "normal course") or (instead) consider the appeal solely on the basis of the record and briefs submitted in the court below.

The "normal course" is a full appellate review with briefs submitted by each side, and given the Court's decision today to allow submission of numerous amicus briefs ("friend of the court" briefs submitted by non-parties with an interest in the cases), it would seem likely that the Court is planning for a full appeal process.

The towns, Dryden and Middlefield, will have 15 days to respond directly to any amicus brief that argues against home rule, or the towns may instead incorporate their responses to the amicus briefs into their primary briefs.

After Norse Energy and Cooperstown Holstein submit their respective preliminary statements of appeal, the Court most likely will issue a statement describing which appellate method (normal course, or limited) upon which the case will proceed, and will issue a scheduling letter setting forth the deadlines for the submission of briefs.

If the court does not issue such a statement, then the Appellants' briefs (in this matter, Norse Energy and Cooperstown Holstein) are due 60 days after the date that the preliminary statement of appeal is filed. Together with a brief, the Appellants also file a record of the proceeding from the lower court. The deadline for these briefs is therefore likely to be in early November, 2013.

The responsive briefs of Dryden and Middlefield will be due 45 days after the filing of the Appellants' briefs (unless the scheduling order provides for a different timeframe), which should be in late December, 2013.

The appeals would then be scheduled for oral argument. The typical delay between filing all briefs and oral argument is five months - which in this case would be May, 2014. Decisions are typically issued within 40 days after oral argument - which on this time table would be mid-July, 2014.

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