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County Line Field - Ruling on Motion for Recusal, June 23, 2003

Ruling on Motion for Recusal, June 23, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Proposed Field-wide Spacing and Integration Rules
for the County Line Field, pursuant to ECL Article 23 and 6 NYCRR
Parts 550 through 559

RULING ON MOTION
FOR RECUSAL

June 23, 2003

DMN Project No. DMN-02-5

Summary

The Department of Environmental Conservation ("DEC") Staff has proposed issuance of an Order which would establish field-wide spacing and integration rules for the County Line natural gas field. Western Land Services, Inc. and Alan T. and Darcie J. Stephens ("WLS") submitted a petition for party status and participated in the issues conference in the hearing on this application. At the issues conference, WLS moved that the Administrative Law Judge be recused. This motion is denied.

Background

By notice dated February 20, 2003, the DEC scheduled a hearing on the proposed establishment of field-wide spacing and integration rules for a natural gas field known as the County Line Field. The acreage designated as the County Line Field is located in the Town of Catlin, Chemung County, the Towns of Dix and Montour, Schuyler County, and the Town of Hornby, Steuben County. Pursuant to Part 553 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 553"), the DEC Staff proposed that the DEC Commissioner issue an order establishing the spacing and integration rules. On December 30, 2002, the DEC Staff entered into a stipulation with the developers of the field which includes provisions pertaining to field-wide spacing and procedures for future wells. The stipulation is binding on Fortuna Energy, Inc. ("Fortuna") as successor to the earlier developers of the field.

The proposal and the procedural background of the hearing on the proposal are described in more detail in a ruling issued on this same date concerning the DEC Staff's motion for a stay. The hearing is being held pursuant to the procedures in Part 624 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 624"). A legislative hearing and an issues conference took place on March 25 and 26, 2003, respectively.

Motion for Recusal

At the issues conference, counsel for Western Land Services, Inc. moved that I recuse myself from this hearing on the basis of the rulings and report I made in the Quackenbush Hill Field hearing. WLS argued that an issue in the present case is similar to one in the Quackenbush Hill Field hearing, and that, in view of the "strong position" that I took on that issue in the Quackenbush Hill Field hearing, it would be difficult for me to have an open mind when WLS presents its case. WLS expressed concern that I had been assigned to the County Line Field hearing because of what I concluded in the earlier hearing. WLS stated that it would have been logical instead to assign Administrative Law Judge ("ALJ") Maria E. Villa to preside in the present hearing since she was already presiding in the hearing on the Terry Hill South Field, and that since the cases involve similar facts and issues they could have been consolidated (March 26, 2003 Transcript ("Tr.") pages 12-19).

The DEC Staff opposed the motion for recusal, stating that there was no personal bias and that the facts of the other cases are completely distinguishable from those of the present one. The DEC Staff cited the criteria and procedural provisions regarding motions for recusal (Tr. 23-24). Fortuna stated that WLS's primary concern seemed to be that I might be consistent in my application of the law to these cases (Tr. 26).

At the issues conference, I stated that I would continue with the issues conference that day but would consider any additional correspondence that WLS, Fortuna or the DEC Staff might submit with regard to the motion (Tr. 29). I described my understanding of how hearings have been assigned to the ALJs at DEC in the recent past, and noted that in most cases the ALJs take hearings based upon the availability of time on their schedules (Tr. 21-22, 29). At the close of the issues conference, I inquired whether there was a need to schedule additional correspondence about the proposed issues or about the motion for recusal, and none of the participants in the issues conference felt this was necessary (Tr. 203 - 205).

WLS has not shown a reason why I should be recused under the provisions of 6 NYCRR 624.8(b)(2), nor under State Administrative Procedure Act Section 303. I do not have any personal interest in the County Line Field. I do not believe that my role in the Quackenbush Hill Field indicates any personal bias. In that hearing, I made rulings and prepared a report, which are part of my role as the ALJ in a hearing. WLS has not identified any other good cause why I should recuse myself, and having considered this question I have not seen any reason to do so.

Ruling: The motion for recusal is denied.

Appeals

Pursuant to 6 NYCRR Subdivisions 624.6(e) and 624.8(d)(2)(iv), a ruling on a motion for recusal may be appealed in writing to the Commissioner on an expedited basis.

Any appeals must be received at the office of the Commissioner no later than 4:00 P.M. on July 8, 2003, at the following address: Commissioner Erin M. Crotty, NYS Department of Environmental Conservation, 625 Broadway, Albany, New York 12233-1010. Copies of any appeals must be transmitted to all persons on the April 1, 2003 interim service list by the same type of delivery as used in sending the appeal to the Commissioner. Service by fax is not authorized.

Any replies must be received at the same address no later than 4:00 P.M. on July 18, 2003. The same requirements regarding copies and fax transmission apply to replies.

/s/
Susan J. DuBois
Administrative Law Judge

Albany, New York
June 23, 2003

TO: Arlene J. Lotters, Esq.
John H. Heyer, Esq.
Allan R. Lipman, Esq.
Vincent C. Stalis
Anne A. McLaughlin

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