State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 3, 2015 520122 

________________________________

COMMUNITY WATERSHEDS CLEAR

WATER COALITION, INC., 

et al.,

Appellants,

v MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION,

Respondent.

________________________________

Calendar Date: October 13, 2015

Before: Lahtinen, J.P., Garry, Egan Jr. and Clark, JJ.

__________

James Bacon, New Paltz, for appellants.

Eric T. Schneiderman, Attorney General, Albany (Andrew B.

Ayers of counsel), for respondent.

__________

Egan Jr., J.

Appeal from an order of the Supreme Court (Gilpatric, J.),

entered September 10, 2014 in Ulster County, which granted

defendant's motion to dismiss the complaint.

In June 2012, nonparty XTO Energy submitted two

applications to defendant for a permit to drill, deepen, plug

back or convert two natural gas wells located in the Town of

Sanford, Broome County. The subject wells were proposed to

produce natural gas from a geological formation known as the

Marcellus shale utilizing horizontal drilling and hydraulic

fracturing – a process commonly known as hydrofracking. In order

to obtain the requested permit, XTO was required to, among other
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things, supply defendant with a map showing the proposed spacing

units – the geographical areas assigned to each well – and

demonstrate that it controlled at least 60% of the mineral rights

contained therein (see ECL 23-0501 [2]).1 The maps tendered

depicted two proposed spacing units – denominated as "Cempa A"

and "Dew Dec Farms A." Plaintiff Community Watersheds Clear

Water Coalition, Inc. (hereinafter the Coalition) is an alliance

of individuals and organizations dedicated to, among other

things, protecting the water quality in this state, and plaintiff

Patrice VanSlyke, who is a member of the Coalition, owns

approximately 155 acres of property in a rural area of Broome

County – a portion of which overlaps with the boundaries of the

proposed spacing units. According to VanSlyke, she and her

husband are "one of the last holdouts refusing to lease [their]

property [to XTO] for oil and gas drilling," thereby potentially

making them subject to a compulsory integration order (see ECL

23-0901).

Defendant's authority to regulate the drilling of oil and

gas production wells is set forth in ECL article 23 and, prior to

granting a well permit under ECL 23-0501, defendant must comply

with the provisions of the State Environmental Quality Review Act

(ECL art 8 [hereinafter SEQRA]). To that end, in 2011, defendant

issued a notice of proposed rulemaking and held public hearings

on a proposal to revise and amend, among other things, its oil

and gas regulations. During the course thereof, thousands of

public comments were received, including Comment 4232 (allegedly

submitted by the Coalition), which generally objected to

defendant's authorization of certain specified spacing units for

shale gas. Defendant responded, explained what it regarded as

the flaw in the Coalition's analysis and indicated that no

changes were made to the applicable section of the proposed rule

as a result thereof. Defendant ultimately did not adopt the

revised draft regulations to which Comment 4232 was directed and,

in March 2013, a notice of expiration was published in the State

Register, advising the public that the notice of proposed

1 The spacing requirements are designed to ensure, among

other things, that the state's oil and gas resources are utilized

in such a way as to prevent waste (see ECL 23-0301).
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rulemaking had lapsed.

Thereafter, in November 2013 – after the aforementioned

notice had lapsed and while defendant's SEQRA review remained

ongoing – plaintiffs commenced this declaratory judgment action

against defendant, primarily contending that defendant's response

to Comment 4232 constituted an unlawful extension of the commonlaw rule of capture and effectuated a trespass upon VanSlyke's

property. Defendant moved to dismiss the complaint contending,

among other things, that plaintiffs lacked standing and that the

claims asserted were not ripe for judicial review. Supreme Court

granted defendant's motion, and this appeal by plaintiffs

ensued.2

We affirm. Assuming, without deciding, that the statewide

ban on hydrofracking does not render all of plaintiffs' claims

moot and, further, that plaintiffs each have standing to maintain

this declaratory judgment action, Supreme Court nonetheless

properly granted defendant's motion to dismiss the complaint. As

this Court recently reiterated, "[i]n order to warrant a

determination of the merits of a cause of action, the party

requesting relief must state a justiciable claim – one that is

capable of review and redress by the courts at the time it is

brought for review. A claim is justiciable, in turn, when two

requirements are met: first, that the plaintiff has an interest

sufficient to constitute standing to maintain the action and,

second, that the underlying controversy involves present, rather

2 During the pendency of this appeal, defendant completed

its SEQRA review, issued a detailed statement of findings

relative to the issue of hydrofracking and concluded that "there

[were] no feasible or prudent alternatives that would adequately

avoid or minimize adverse environmental impacts and that address

the scientific uncertainties and risks to public health from this

activity"; accordingly, defendant instituted a statewide ban on

hydrofracking (Findings Statement, Final Supplemental Generic

Environmental Impact Statement On The Oil, Gas and Solution

Mining Regulatory Program, http://www.dec.ny.gov/docs/materials_

minerals_pdf/findingstatehvhf62015.pdf, at 42 [NY State Dept of

Envtl Conservation, accessed Nov. 16, 2015]).
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than hypothetical, contingent or remote, prejudice to the

plaintiff" (Schulz v Cuomo, ___ AD3d ___, ___, 2015 NY Slip Op

08020, *1-2 [2015] [internal quotation marks, brackets and

citations omitted]). Again, even assuming that plaintiffs have

satisfied the standing element of this equation, the fact remains

that their entire complaint is predicated upon either (1)

defendant's allegedly improper response to a comment made by the

Coalition regarding proposed draft regulations that ultimately

were not adopted, or (2) the theoretical consequences of a well

bore or fluid fracture penetrating the subsurface of VanSlyke's

property. 

As the notice of proposed rulemaking has lapsed, any

challenge to either the proposed rules themselves or defendant's

stated position with respect thereto clearly cannot be deemed to

be a present controversy. Similarly, although plaintiffs raise

concerns regarding the potential damage to the local water supply

from either drilling or hydrofracking and VanSlyke asserts that

such actions would negatively impact the insurability,

marketability and/or future potential uses of her property, the

claims asserted by plaintiffs all presuppose, among other things,

that defendant indeed will grant XTO a drilling permit. In light

of the ban on hydrofracking, XTO may well elect not to pursue its

application at all; further, even if XTO goes forward and pursues

a permit to undertake an alternative method of drilling, that

permit may or may not be granted. Moreover, as evidenced by

defendant's submissions, there are a multitude of administrative

steps that must be successfully undertaken before such a permit

could be granted, and the failure to achieve any one of those

steps could derail the entire process. As plaintiffs' causes of

action necessarily are dependent upon future events that may

never come to pass, we find that their claims are entirely

speculative and, hence, are not justiciable (see Matter of New

York State Inspection, Sec. & Law Enforcement Empls., Dist.

Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 240 [1984];

Schulz v Cuomo, 2015 NY Slip Op 08020 at *2; Matter of New York

Blue Line Council, Inc. v Adirondack Park Agency, 86 AD3d 756,

761-762 [2011], appeal dismissed 17 NY3d 947 [2011], lv denied 18

NY3d 806 [2012]; Saratoga County Chamber of Commerce v Pataki,

275 AD2d 145, 158 [2000]). Plaintiffs' remaining arguments, to

the extent that they are properly before us, have been examined
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and found to be lacking in merit.

Lahtinen, J.P., Garry and Clark, JJ., concur.

ORDERED that order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court