Article 78 Takings Case

Dear Friends and Natural Gas Supporters,
I'd like to share a report from a landowner who attended the 04-25-14 court hearing in Albany. Please pass this along to any and all supporters.
The following is a broad overview and a layman’s account of the court action. The plaintiff parties (our side) brought an Article 78 action against the executive branch. Roughly, an Article 78 asks the responsible party in government to obey the law. In our case, we asked various elements of the executive branch to implement the SGEIS. We contend that a six year delay is a denial of justice and the plaintiff parties have suffered damage. The State routinely asks for
dismissal when challenged. That’s what happened yesterday.
The State, represented by Ms. Costello, opined that the plaintiffs didn’t have standing because the State Environmental Quality Review Act (SEQRA) deals with policy that takes precedence over economic loss. Implementing policy may take time, even extended time. The DEC’s delegation of responsibilities to the DOH was not artificial and capricious and falls within the responsibilities of the executive who can devise whatever procedure deemed fitting. Judge McDonough asked if the executive branch can delay forever. Ms. Costello’s answer was that it can take extended time. Judge McDonough seemed to agree with Ms. Costello on the executives role, calling it “separation of powers 101.”
Attorney Tom West for Norse spoke next. The Judge focused on time limits in SEQRA. There are none. He suggested that this should be remedied in the
legislature or in the executive branch. As Attorney West kept hammering at the history of delay and the ongoing wrong, the Judge said that he can only take the executive on its word at this stage of the process. (Editor’s note: Motive will emerge in discovery, but we have to get past the motion to dismiss in order to get to discovery.) The Judge sympathized with the frustration but kept returning to time limits in the law.
Things were not looking up at this moment but a theme seemed to be emerging -- SEQRA can’t be used to delay forever
Steven Lechner of the Mountain States Legal Foundation followed Tom West with a property rights perspective. A time limit is implicit if property right are to be preserved. Judge McDonough countered with a question; how does a court decide a timely manner. 6 years? 5 years? 10 years? However, in this segment of the argument, the possibility of a
distinction between unlawful delay and unreasonable delay surfaced. Judge McDonough seemed unwilling to find an unlawful delay in the executive’s actions. The concept of unreasonable delay was still a possibility.
When asked if there were any further comments, our attorney, Scott Kurkoski, spoke up. He first spoke to the reason SEQRA has no time limit. Each permit is different. There can be no uniform end time. He then spoke to the experience in 30 other states where the approval of equivalents of the SEQRA and the SGEIS take any where from 8 months (Ohio) to 18 months. These are parameters that can be used as criteria for reasonableness. Other states -- months and no moratorium. NYS -- years.
In summary, Ms. Costello wrapped up a few loose ends for the State. That was a mistake. The Judge asked her if SEQRA had any time limit. She answered that there was no time limit. The judge said,
“Then it can last to 2121?” Ms Costello said, “There is no time table.” The Judge asked, “Isn’t that the petitioners argument? What is a reasonable time limit?” Ms. Costello said, “ You can’t put a number on it. SEQRA doesn’t have a standard.”
Scott wasn’t in the line-up for this particular oral argument but he came off the bench to punch a double that tied the game. Scott tells me that there is literally a foot of documentation on this case. Judge McDonough seems to be an individual who will read it. The Judge reserved decision.
Warm Regards,
Dan Fitzsimmons, President
Joint Landowners Coaliton of New York, Inc.

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