Takings????

Re: Takings????

Postby chasgas » Sat Apr 15, 2017 1:17 pm

UPDATE:

“I respectfully disagree with the Court’s decision both factually and with the law. However, I am relieved and excited at the outcome of today’s decision. At this time, I only have one more hurdle to address in order to exhaust all State remedies in New York and thus be able to proceed in our Federal Courts. “

“If the Court had granted my relief and remanded the case back to the New York State Supreme Court in Albany County, this case could have taken many years to finally come to a conclusion.”

“I look forward to helping the citizens of the Southern Tier of the State of New York. The ability to conduct High Volume Hydofracking on landowners private property will bring economic prosperity to the residents of Upstate New York and create enormous tax revenues to the Empire State.”


Best regards, David R. Morabito, Sr.



chasgas

we certainly owe a debt of gratitude to david... thank you sir.......................
chasgas
 
Posts: 3538
Joined: Mon Jun 15, 2009 2:36 pm

Re: Takings????

Postby chasgas » Sat Apr 15, 2017 3:49 pm

New York Supreme Court

Appellate Division-Third Department

______________________________



In the Matter of the Application of DAVID R. MORABITO,



Petitioner-Appellant



for a Judgment Pursuant to Article 78

of the CPLR



-against-





JOSEPH MARTENS, Commissioner of the

The New York State Department of

Environmental Conservation and BRADLEY

J. FIELD, Director of the Division of Mineral

Resources for the New York State Department

Of Environmental Conservation,



Respondents-Appellee

______________________________________________________________________



RECORD ON APPEAL











David R. Morabito, Esq. Morgan Costello, Esq.

117 West Commercial Street New York State Office of the

PO Box 187 Attorney General

East Rochester, NY 14445 Environmental Protection Bureau

(585)586-5770 The Capital

Albany, NY 12224-0341

(518)776-2392

Petitioner-Appellant

PRO SE Attorney for Respondents-Appellee






TABLE OF CONTENTS


Page

Statement Pusuant to CPLR 5531…………………………………………………. 1

Notice of Appeal, dated March 1, 2016……………………………………………..2

Affidavit of Service of Notice of Appeal, sworn to on March 2, 2016…………… 4

Stipulation In Lieu of Certification Pursuant to

CPLR 5532………………………………………………………………………… 6

Final Decision/Order/Judgment, dated February 10, 201 6………………………7

Order to Show Cause, dated May 6, 2015…………………………………………20

Verified Amended Petition, dated May 22, 2015…………………………………..22

Exhibit 1- Correspondence From David R. Morabito to

Commissioner Joseph Martens dated

December 23, 2014 …………………………………………..97



Exhibit 2- Correspondence From David R. Morabito to

Commissioner Joseph Martens dated

January 28, 2015 ………………………………………….. 99



Affidavit of Personal Service of Sharon M. Stacklyn, sworn to on or about

May 28, 2015…………………………………………………………………………..100



Notice of Motion to Dismiss, dated September 25, 2015…………………………101

Affidavit of Peter S. Briggs in Support of Motion to Dismiss, sworn to on

September 22, 2015…………………………………………………………………..103



Affidavit of Eugene J. Leff in Support of Motion to Dismiss, sworn to on

September 22, 2015…………………………………………………………………..112



Exhibit 1- New York State Department of Health Press Release

Dated December 17, 2014……………………………………118



Exhibit 2- Correspondence From David R. Morabito to Commissioner

Joseph Martens

Dated December 23, 2014……………………………………120





Exhibit 3- Correspondence From David R. Morabito to Commissioner

Joseph Martens

Dated January 28, 2015………………………………………122



Exhibit 4- Correspondence From Bradley J. Field, Director

Division of Mineral Resources to David R. Morabito

Dated January 16, 2015……………………………………….123



Exhibit 5- Press Release for DEC Issuing Final Supplemental

Generic Environmental Impact Statement ………………….124



Exhibit 6- Final Supplemental Generic Environmental Impact

Statement-Finding Statement dated June, 2015…………...126



Reply to Notice of Motion to Dismiss, dated October 29, 2015……………………170



Exhibit 1- Affidavit of David R. Morabito in Support of Reply………….224



Exhibit 2- Affidavit of Colette M. Morabito in Support of Reply………..230



Surrebutal to Notice of Motion to Dismiss, dated December 28, 2015……………236






STATEMENT PURSUANT TO CPLR 5531



Index No. 3265-2015
Full Names of the Parties:
PETITIONER: David R. Morabito



RESPONDENTS: JOSEPH MARTENS, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION And BRADLEY J. FIELD, DIRECTOR OF THE DIVISION OF MINERAL RESOURCES FOR THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION



The Court and County in which the action was commenced is Supreme Court, Allegany County and Change of Venue was granted to Albany County.
Date the action was commenced- May 13, 2015.
The Nature and object of this action is: Article 78 proceeding.
This appeal is from the final Decision/Order/Judgment of the Supreme Court, Albany County, Hon. Lisa M. Fisher, Supreme Court Justice Presiding, dated February 10, 2016, and entered in the Albany County Clerk’s Office on March 3, 2016.
This appeal is on the record reproduced below.

STATE OF NEW YORK

SUPREME COURT COUNTY OF ALBANY

_______________________________________



In the Matter of the Application of DAVID R. MORABITO



Petitioner



for a Judgment Pursuant to Article 78

of the CPLR



-against- STIPULATION IN LIEU OF CERTIFICATION PURSUANT TO CPLR 5532

Index # 3265-15

JOSEPH MARTENS, Commissioner of the

The New York State Department of

Environmental Conservation and BRADLEY

J. FIELD, Director of the Division of Mineral

Resources for the New York State Department

Of Environmental Conservation,



Respondents

_______________________________________



It is hereby stipulated pursuant to Rule 5532 of the Civil Practice Law and Rules that the Record on Appeal herein consists of true and correct copies of all the necessary papers identified in the Table of Contents set forth herewith and that certification of the record by the Clerk of the County of Albany is hereby waived.

Dated: March , 2016 Dated: March , 2016

By:___________________ By:___________________

David R. Morabito, Esq. Morgan A. Costello, Esq.

Pro Se Attorney for Respondents

117 West Commercial Street New York State Office of the

PO Box 187 Attorney General

East Rochester, NY 14445 Environmental Protection Bureau

(585)586-5770 The Capital

Albany, NY 12224-0341

(518)776-2392


TO BE ARGUED BY:

DAVID R. MORABITO, ESQ.

(TIME REQUESED: MINUTES)





Albany County Clerk’s Index No. 3265-2015





New York Supreme Court

Appellate Division-Third Department

_____________________________



In the Matter of the Application of DAVID R. MORABITO,



Petitioner-Appellant



for a Judgment Pursuant to Article 78

of the CPLR

-against-



JOSEPH MARTENS, Commissioner of the

The New York State Department of

Environmental Conservation and BRADLEY

J. FIELD, Director of the Division of Mineral

Resources for the New York State Department

Of Environmental Conservation,



Respondents-Appellee

__________________________________________________________________





BRIEF FOR PETITIONER-APPELLANT

_________________________________________________________





David R. Morabito, Esq. Morgan Costello, Esq.

117 West Commercial Street New York State Office of the

PO Box 187 Attorney General

East Rochester, NY 14445 Environmental Protection Bureau

(585)586-5770 The Capital

Albany, NY 12224-0341

(518)776-2392

Petitioner-Appellant

Pro SE Attorney for Respondents-Appellee









TABLE OF CONTENTS



PAGE



TABLE OF AUTHORITIES……………………………………



QUESTIONS PRESENTED…………………….



PRELIMINARY STATEMENT…………………….



SUMMARY OF ARGUMENT……………………….



STATEMENT OF FACTS……………………………



PROCEDURAL HISTORY………………………….



ARGUMENT…………………………………………



POINT I- TRIAL COURT ERRED IN DISMISSING

PETITION UNDER CPLR

§3211(a) 1, 2 and 7



Trial Court Erred In Applying Incorrect Standard
Trial Court Erred In Not Giving A Liberal Construction, Accepting the Allegations As True and Accord the Petitioner Every Possible Favorable Inferences as Required
Trial Court Erred In Dismissing Petition Pursuant to CPLR§ 3211(a)(1)
Trial Court Erred In Dismissing Petition Pursuant to CPLR§ 3211(a)(2)
Trial Court Erred In Dismissing Petition Pursuant to CPLR§ 3211(a)(7)





POINT II- TRIAL COURT ERRED IN DISMISSING PETITION AS PETITIONER HAS STANDING, EXHAUSTED ADMINISTRATIVE REMEDIES AND HAS VIABLE CONSTITUTIONAL CLAIMS


Trial Court Erred In Dismissing Petition as Petitioner Has Standing and Capacity to Commence Said Action
Trial Court Erred In Determining That The Cause of Action Was

Premature As Petitioner Failed To Exhaust Administrative Remedies
Trial Court Erred In Determining That Petitioner Had No Constitutional Claims



POINT III- COURT DEPARTMENT SHOULD REMAND CASE BACK TO A JUSTICE TRAINED TO PRESIDE OVER HIGH VOLUME HYDROFRACKING CASES (HVHF)





POINT IV- THIS COURT SHOULD REMAND CASE BACK TO ANOTHER JUDGE OR JUSTICE. OTHER THAN THE TRIAL COURT FOR THE BELOW STATED REASONS


Trial Court Has Already Stated In Its Final Decision/Order/Judgment That Petitioner’s Cause Of Action is Meritless and Baseless
Trial Court Erred In Not Allowing Petitioner Opportunity For Oral Argument On The Motion To Dismiss



CONCLUSION………………………………………



TABLE OF AUTHORITIES





Cases Page



AG Cap Funding Partners vs State Street Bank and Trust Company,

5 NY3d 582 (2005))……………………………………………………………

Agins vs. City of Tiburon, 447 US 25 (1980)………………………………..

Blackburn vs Shapiro, 288 AD2d 870 (4th Dept 2001)…………………….

CBS Corp vs Dumsday, 268 AD2d 350 ( 1st Dept 2000)…………………..

Chanko et al vs American Broadcasting Companies

(Court of Appeals, Docket No. 44, decided on March 31, 2016)…………

Chatham Towers Inc vs Bloomberg, 6 Misc. 3d 814 (Sup. CT 2004)…….

City Council of City of Watervilet vs Town Board of the Town of Colonie,

3 NY3d 508 (2004)……………………………………………………………..

Coca Cola Bottling Company vs Board of Estimate, 72 NY2d 674 (1988)..

EBC Number One, Incorporated vs Goldman, Sacks and Company,

5 NY3d 11 (2005)……………………………………………………………….

E.F.S. Ventures Corp vs Foster, 71 NY2d 359 (1988)………………………

First English Evangelical Lutheran Church vs. County of Los Angeles,

482 U.S. 304 (1987)…………………………………………………………….

511 West 232 2nd Owners Company vs Jennifer Realty Company,

98 NY2d 144 (2002)…………………………………………………………….

Four Seasons Hotel vs Vinnik, 127 AD2d 310 (1st Dept 1987)……………..

Frank vs Daimler Chrysler Corp, 292 AD2d 118 ( 1st Dept 2002)………….

Goldblatt vs Hempstead, 369 US 590 (1962)…………………………………

Goshen vs Mutual Life Insurance Company of New York,

98 NY2nd 314 (2002)……………………………………………………………

Held vs Kaufman, 91 NY2d 425 (1998)……………………………………….

Henbes and Morrisey Inc vs W.H. Insurance Agency et al,

259 AD2d 829 (3rd Dept 1999)………………………………………………….

Huggins vs Whitney, 239 AD2d 174 (1st Dept 1997)…………………………

Johnson et al vs Proskauer et al, 129 AD3d 59 (1st Dept 2015)……………

J.P. Morgan vs Vigilant Ins Company, 21 NY3d 324 (2013)………………..

Leon vs Martinez,84 NY2nd 83(1994)…………………………………………

Lingle vs Chevron, 544 US 528 (2005)………………………………………..

Lucas vs. South Carolina Coastal Council, 505 US 1003 (1992)…………...

Lujan vs Defenders of Wildlife, 504 US 555 (1992)…………………………..

Matter of Adirondack Council, Inc. vs Adirondack Park Agency,

92 AD3d 188 (3rd Dept 2012)……………………………………………………

Matter of Association for a Better Long Island vs New York State DEC,

23 NY3d 4 (2014)………………………………………………………………..

Matter of Colella vs Board of Assessor of the County of Nassau,

95 NY2d 401 (2000). ……………………………………………………………..

Matter of Connorton vs Ryan, 86 AD3d 693 (3rd Dept 2011)…………………

Matter of FYM Clinical Lab vs Perales, 147 AD2d 840 (3rd Dept 1989)……..

Matter of Morey vs City of Gloversville, 203 AD2d 625 (

Matter of Save the Pinebush Inc. vs Common Council of the City of Albany,

13 NY3d 297 (2009)………………………………………………………………

Matter of Sierra Club et al vs Village of Painted Post, et al ,

26 NY3d 301 (2015)………………………………………………………………

Matter of Town of Henrietta vs Department of Environmental Conservation,

76 AD2d 215 ( 4th Dept 1980)………………………………………………………….

Matter of Weok Broadcasting Corp vs Planning Board of Lloyd,

79 NY2d 373 (1992)……………………………………………………………..

Methe vs General Electric Company, 169 AD2d 864 (3rd Dept 1191)…….

Mihlovan vs Grozauva, 72 NY2d 506 (1988)………………………………….

NYS Association of Nurse Anesthetists vs Novello, 2 NY3d 207(2004)……

Pennsylvania Coal vs Mahon, 260 US 393 (1922)…………………………….

Pine Street Homeowners Association vs 20 Pine Street, LLC,

109 AD3d 733 (1st Dept 2013)…………………………………………………..

Polonetzky vs Better Homes Department, Inc. 97 NY2d 46 (2001)…………

Quiroz vs Zottola, 96 AD3d 1035 ( 2nd Dept 2012)……………………………

Rovello vs Orofino Realty Company, 40 NY2d 633 (1976)…………………..

San Diego Gas and Electric Company vs. City of San Diego,

450 US 621 (1981) ……………………………………………………………….

Saratoga County Chamber of Commerce, Inc vs Pataki,

100 NY2d 801 (2003)……………………………………………………………

Sayyed et al vs Murray, 109 AD3d 464 (2nd Dept 2013)……………………

Society of Plastics Industry vs County of Suffolk, 77 NY2d 761 (1991)…..

Sun-Brite Carwash, Inc. vs Board of Zoning and Appeals of Town

Of North Hempstead, 69 NY2d 406 (1987)………………………………………..

Town of Carmel vs Melchner ,105 AD3d 82 (2nd Dept 2013)………………

Town of Geneva ex rel Town Board vs City of Geneva,

63 AD3d 1544 (4th Dept 2009)…………………………………………………

219 Broadway Corp vs Alexanders Inc., 46 NY2nd 506 (1979)…………..

United States vs. Clark, 445 US 253 (1980)…………………………………

United States vs Students Challenging Regulatory Agency Procedures,

412 US 669 (1970)……………………………………………………………..

Vanderbeek vs Beckerle, 116 AD3d 764 (2nd Dept. 2014)………………..

Watergate II Apartments vs Buffalo Sewer Authority,

46 NY2d 52 (1978)…………………………………………………………….

Wedinger vs Goldberger, 71 NY2d 428 (1998)…………………………….

Weingarten vs Lewisboro, 77 NY2d 926 (1991)……………………………

Wiesen vs New York University, 304 AD2d 459 (1st Dept 2003)…………


Statutes Page



CPLR § 3211………………………………………………………………….

CPLR § 3211(a)(1)……………………………………………………………

CPLR § 3211(a)(2)……………………………………………………………

CPLR § 3211(a)(7)……………………………………………………………

CPLR § 3211(c)……………………………………………………………….

CPLR § 7804(f)……………………………………………………………….

ELC § 8-0103(2)…………………………………………………………….



Constitutional



United States………………………………………………………………….



Fourth Amendment………………………………………………………….

Fifth Amendment…………………………………………………………….

Fourteenth Amendment…………………………………………………….



New York State………………………………………………………………





Regulations Page



NYCRR §617.7(d)(1)………………………………………………………..




QUESTIONS PRESENTED



Did the trial court err in granting the Motion to Dismiss the Amended Petition?


Answer:



The trial court erred in dismissing the Article 78 Amended Petition under CPLR 3211(1), (2) and (7) as the trial court incorrectly found that Petitioner had no standing. The trial court applied an incorrect standard amounting to a summary judgment standard by deciding questions of fact, rather than determining if the Amended Petition stated a claim. It is strongly asserted that the purpose of pleadings is to give notice of a claim and to state material elements of a cause of action. As long as a pleading states a cause of action, a petitioner need not provide affidavits or evidence, unless the motion has been converted on notice to the parties to a summary judgment motion (see CPLR 3211 (c)). The trial court did not give any notice to Petitioner-Appellant that the Motion to Dismiss was being converted to a Summary Judgment Motion. It is respectfully submitted that the Amended Petition pled multiple causes of action that were factually supported and converting the Motion to Dismiss to a Summary Judgment Motion was incorrect.



Did the trial court err in dismissing the Amended Petition as Petitioner-Appellant clearly established in his pleadings that he had standing, exhausted his administrative remedies and had a constitutional “taking”?



Answer:



The trial court erred in dismissing the Article 78 Amended Petition as Petitioner has standing. In its pleadings, Petitioner clearly established that he had serious environmental and economic injury by the temporary and eventual permanent ban on high volume hydrofracking (hereinafter referred as HVHF) by Respondents. Petitioner has suffered direct harm and the injury is clearly different and distinguished from the public at large. In regard to the failure to exhaust administrative remedies, Petitioner could not apply for a permit to conduct HVHF during Respondents’ temporary ban for at least five years as there were Executive Orders issued by Governor Patterson and Cuomo prohibiting the issuance of any permits for HVHF. Finally, the Respondents’ decision to permanently ban HVHF on Petitioner’s properties has caused a “taking” under the United States Constitution-Fifth Amendment as the viability of economic benefit has been severely diminished to very minimal economic value.




Should this case be remitted to a New York judicial institute, through the New York State Office of Court Administration, sponsored judge who has participated in a program covering the basic mechanical aspects of HVHF on the Marcellus shale plays and regulations?



Answer:



The National Judicial College, through the New York State Judicial Institute and Office of Court Administration invited judges from New York, Pennsylvania, Ohio and West Virginia to attend an HVHF training program. This program covered the mechanical aspects of HVHF on the Marcellus shale plays and regulations. It is respectfully submitted that the Court recognize that a special expertise should be required to properly adjudicate claims involving HVHF. The Petitioner-Appellant respectfully requests a remittal to a HVHF judge who participated in the program. Upon information and belief, two of the four trained judges in the State of New York are located in the Eighth Judicial District, one of which is located inAllegany County where the petition was originally venued.


Should this case be remitted to another justice?



Answer:



The trial court has clearly established preconceived and prejudicial presumptions that Petitioner-Appellant will never be able to overcome as the trial court in its final Decision/Order/Judgment held that this case was “lacking in merit.” The burden upon Petitioner will be insurmountable to overcome the views, opinions, positions and determinations of the trial court. Further, Petitioner-Appellant was never given the opportunity to appear before the trial court for oral argument though requested. Appellant acknowledges that there is no statutory or common law rule that demands that a litigant have the opportunity to personally appear before the trial court. Oral argument would have been an opportunity for Petitioner-Appellant to defend his theory of the case and engage the trial court in a conversation about key legal and factual issues.





PRELIMINARY STATEMENT



The Petitioner, a landowner with properties located in Allegany County in the State of New York commenced an Article 78 Proceeding in the Supreme Court of the State of New York-Allegany County. Petitioner-Appellant argued that the Respondents’ denial for Petitioner’s request to obtain a permit to conduct High Volume Hydrofracking (HVHF) or to allow him to commence the process, to obtain a permit for HVHF, on his properties was arbitrary and capricious and violated his rights to due process of law under the Constitutions of New York State and the United States.



More specifically, the Amended Petition requested a review by the trial court of all proceedings, decisions, and actions of Respondents in this matter to the end that:



1) its determination be corrected on the merits by the trial court and that the Petitioner-Appellant may have judgment annulling and setting aside the determination that denied Petitioner the ability to conduct HVHF on his property(s);

2) denying the Petitioner the right to obtain a permit or be allowed to commence the process to obtain a permit to conduct HVHF on his property(s) was arbitrary and capricious;

3) staying the decision of Respondents from enforcing its decision;

4) nullifying Respondents’ determination/decision as being meritless; and

5) granting the Petitioner such other and further relief as the trial court may deem proper together with the legal costs and disbursements of the proceeding.



The Respondents’ moved to dismiss pursuant to CPLR 3211(a)(1), (2), and (7) and CPLR 7804(f) arguing that Petitioner:



1) failed to allege that he was directly and immediately affected by the statewide prohibition on HVHF;

2) lacked any direct concrete injury in fact different from the public at large caused by Respondents’ denial of his request;

3) even if Petitioner could establish an injury in fact, the economic injury that it alleged fell outside of the scope of the State Environmental Quality Review Act; and

4) even if Petitioner had standing, Petitioner’s claims should be dismissed because he failed to exhaust his administrative remedies by failing to apply for a permit to develop any mineral interests that he may own.





Petitioner opposed such motion, arguing in sum and substance that he had standing as he should not have been treated the same as the “public at large.” Appellant clearly has injuries that are “real and different” from the injury most members of the public will face. Petitioner is in an almost unique situation as injuries received by Respondents’ action to ban HVHF on his properties is very particularized and very real. For all practical purposes, almost 100% of the residents and citizens of the State of New York do not own large tracts of land located in the Southern Tier of New York. The “public at large” does not have natural resources that would allow gas exploration in the Marcellus or Utica Shale plays. Respondents’ ban, both temporary and now permanent, clearly establishes a very serious injury upon Petitioner in that he will not be able to extract natural gas resources pursuant to HVHF. Said injury is different from the “public at large.”



Petitioner further argued that he had not failed to exhaust his administrative remedies as the permit application process would be futile since Respondents made it clear they would not issue a permit to any applicant seeking to use HVHF as a means of extraction of natural gas. Pursuant to the Executive Orders issued by Governor Patterson and Governor Cuomo in 2010 and 20111, Petitioner could not legally apply for a permit pursuant to the temporary ban and permanent ban on HVHF.





Petitioner further claimed that his constitutional rights had been violated as the outright HVHF ban is a regulatory “taking” of the minerals lying below the surface of his properties. The trial court held that Appellant’s ability to extract gas established at the properties are economically viable-not just the way Petitioner desires. The hereinstated determination by the trial court established that it had limited knowledge in regard to oil and gas exploration. This is not a situation of a “mere diminution” in the value of the property in demonstrating a “taking”. The properties are not economically “viable” as the trial court has held. Either HFHF unconventional drilling will be used to extract the gas resources or there will be no extraction of gas resources. The industry will not conduct conventional drilling as it is not economically or environmentally feasible. Therefore, not in an abstract analysis, but in a real consequence of the ban on HVHF-Petitioner will not be able to extract his natural resources.





SUMMARY OF ARGUMENT



Petitioner has pled, through the Article 78 process, relevant allegations of fact that have given rise to a legal cause of action involving a question of “statewide importance” as to whether or not Petitioner can conduct high volume hydrofracking (HVHF). This case was at the pleading stage. An Answer has not been filed by the Respondents. There has been no discovery conducted in this case. It is not feasible or practical to address and support every fact and issue at the pleading stage. The dismissal by the trial court, with prejudice, was legally and factually incorrect.



The trial court should not have summarily dismissed this proceeding for “lack of standing” as it applied an incorrect standard in analyzing the Motion to Dismiss raised by the Respondents pursuant to CPLR §3211. The facts stated in the Amended Petition should be deemed admitted. The facts stated directly or which may be reasonably inferred are to be taken in favor of the Petitioner-Appellant. The allegations of the Amended Petition are to be considered, accepted, conceded, or deemed to be true for the purposes of analyzing the Motion to Dismiss. Further, the facts alleged are to be liberally construed and considered in the light most favorable in support of the Amended Petition. Simply, the Motion to Dismiss the Petition should have been denied as the Amended Petition clearly stated a prima facie case for relief and triable issues of fact were presented. Additionally, the action taken by the trial court to dismiss the petition was improper where the uncontroverted petition raised a question of a violation of the Petitioner’s constitutional rights upon which relief could be granted. Finally, the trial court did not give any notice that the Motion to Dismiss was being converted to a Motion for Summary Judgment.



Continuing, the trial court applied an incorrect standard by deciding questions of fact rather than determining if the Amended Petition stated a claim. The purpose of pleading is to give notice of a claim and to state material elements of a cause of action. As long as the pleading states a cause of action, the petitioner need not provide affidavits or evidence unless, the motion was converted, on notice to the parties to a summary judgment motion. As stated, Petitioner had no opportunity to “lay bare his proof.” The Petitioner-Appellant had no opportunity to conduct discovery, to file affidavits, or to conduct examinations before trial in order to support the allegations/claims raised in the Amended Petition. Said Petition stated very extensively, that the actions taken by the Respondents were arbitrary, capricious and denied his constitutional rights to due process.



Further, the trial court dismissed the Amended Petition and for a “lack of standing.” The Petitioner clearly has standing and is directly subject to an adverse affect of Respondents’ “ban” on HVHF. The harm suffered will continue unless the Court grants relief in the form of damages or a finding that the Executive Orders of the Governors do not apply to the Petitioner-Appellant or that the Executive Orders are void and can be nullified. The Amended Petition classically falls under the “something to lose” doctrine in which the Petitioner has standing as being directly harmed by the conditions for which Petitioner is asking the Court for relief.



Petitioner has suffered direct harm and the injury is clearly different from the public at large and should be distinguished from the public at large. Appellant purchased 339 acres of land in the Town of Cuba and State of New York in the latter part of April 2014 for the specific purpose to conduct HVHF. The Petitioner, as the owner or in control of the properties: pays the taxes on the properties; owns the mineral rights of natural gas on said properties; the properties are in a viable area to conduct HVHF while the majority of the State of New York is not; and the public at large is not environmentally or economically disadvantaged by the ban on Appellant’s properties. The majority of the State of New York and the “public at large” are not directly, or even indirectly, impacted by the ban on HVHF by Respondents. The vast majority of the State of New York is not located in the Marcellus Shale and Utica Shale plays. There are only a few counties along the Pennsylvania border that are located in the hereinstated areas. There are very few landowners in this region that even have sizable acreage to have HVHF conducted on their own properties. Petitioner’s properties are in a unique area and the ban on HVHF has caused very serious economic hardship and environmental injury will occur if only conventional drilling is allowed. Petitioner-Appellant submits that the violations by Respondent are direct, concrete and nonspeculative harms that are clearly distinct from the public at large.



Simply, it is respectfully submitted that the trial court applied an overly restrictive analysis of the requirement to show harm “different from that of the public at large.” Moreover, the Court of Appeals recent decision(s) have held that standing is not to be denied simply because many people suffer the same injury. To deny standing to persons who are in fact injured simply because others are also injured, would mean that the most injurious and widespread government actions could be questioned by no one. It is acknowledged that the harm alleged must be specific to the individual(s) and must be different in kind or degree from the public at large, but it need not be unique.



In the Final Decision/Order/Judgment, the trial court addressed two (2) additional issues involving exhaustion of administrative remedies and the constitutional claim. In the case at bar, Petitioner could not legally apply for a permit pursuant to the Executive Order(s) of the Governor(s) for the temporary ban and eventual permanent ban on HVHF. Petitioner-Appellant has raised the “Doctrine of Futility.” In any event, there are three (3) exceptions to the exhaustion doctrine: when the agency’s action is challenged as unconstitutional; resort to an administrative remedy would be futile; or pursuit of the administrative remedy would cause irreparable injury. Respondent argues that Petitioner should have applied for the permit even though it was going to be denied. Appellant clearly submitted that trying to seek any further administrative remedy in attempting to obtain a permit to conduct HVHF would be futile. Additionally, Petitioner clearly raised that the exhaustion of administrative remedies is not required in the case at bar as it is submitted that there was a violation of the United States Constitution-Fifth Amendment in the “takings clause.” Further, to spend vast sums of money to apply for a permit that legally could not be granted would cause irreparable injury.



Further, the trial court acknowledged Petitioner’s constitutional argument of a “taking” as it denied Appellant of economically viable use of his land as an exception to the exhaustion doctrine. However, the trial court then stated that Petitioner’s ability to extract natural gas established that the “properties are economically viable- just not the way (Petitioner) desires.” Respectfully, that analysis establishes that the trial court had limited knowledge in regard to oil and gas exploration in the State of New York. The oil and gas industry will not economically invest their resources to do conventional fracking. Industry standards at this time will only use unconventional fracking (HVHF). In other words, for any oil and gas exploration to occur on Petitioner’s property(s), it will only be conducted by unconventional (HVHF) gas drilling. Therefore, Petitioner is either going to have unconventional drilling (HVHF) on his property or no drilling on his property. The permanent ban on HVHF has absolutely, unconditionally and clearly established that there would be no oil and gas exploration on said property(s). Simply, the ban on HVHF on Petitioner’s property(s) has systematically denied the Petitioner the right for gas exploration. The ban by Respondents has taken Petitioner’s rights in violation of the Fifth and Fourteenth Amendments of the United States Constitution to conduct exploration on said property(s).



The trial court has clearly established preconceived and prejudicial presumptions

that Petitioner-Appellant will never be able to overcome as the trial court in its final Decision/Order/Judgment held that this case was “lacking in merit.” The burden upon Petitioner will be insurmountable to overcome the views, opinions, positions and determinations of the trial court. Further, Petitioner-Appellant was never given the opportunity to appear before the trial court for oral argument though requested. Appellant acknowledges that there is no statutory or common law rule that demands that a litigant have the opportunity to personally appear before the trial court. Oral argument would have been an opportunity for Petitioner-Appellant to defend his theory of the case and engage the trial court in a conversation about key legal and factual issues.





Continuing, the Office of Court Administration recognized that special expertise should be required to properly adjudicate claims involving high volume hydrofracking (HVHF). The Petitioner respectfully requests a remittal to a HVHF trained judge. Alternatively, the court should remit this case to another judge as the trial court has clearly established preconceived and prejudicial presumptions that Petitioner will never be able to overcome as the trial court stated that this case was “lacking in merit.” The burden on Petitioner will be insurmountable to overcome the views, opinions, positions and determinations of the trial court as set forth in the final Decision/Order/Judgment. It is most respectfully requested that the Court remand this proceeding back to an OCA trained HVHF judge. Upon information and belief, one of the four trained judges in the State of New York is located in Allegany County where the Petition was originally venued.



This case should be remitted to an Office of Court Administration (OCA) trained HVHF judge. The OCA has recognized that special expertise is required to properly adjudicate claims involving HVHF.







STATEMENT OF FACTS



Petitioner-Appellant contacted the Respondent seeking permission to receive a permit or to commence the permit process to conduct HVHF on his property(s) located in the County of Allegany and State of New York. (R-24,97-99, 120-122). That on January 29, 2015 Respondent informed Petitioner that the prohibition for HVHF in the State of New York applied to all owners of property. (R-24,123). The denial for Petitioner to commence the process or receive a permit to conduct HVHF was based on arbitrary or capricious actions taken by the Respondent, (R-24,94) as well as a violation of due process under the New York State and United States Constitutions. (R-94).



The Respondent has conducted very extensive and detailed studies for HVHF to be conducted in the State of New York. During the past twenty-five (25) years, the Respondent has thoroughly analyzed, critiqued and deciphered extensive studies and conducted research involving HVHF. The Respondent has established and/or promulgated extensive proposed rules and regulations to preserve the needed conservation practices of soil, water, and air quality in protecting the best interests of all residents and citizens of the State of New York. The Respondent has generated many thousands of pages in its Generic Environmental Impact Statement (GEIS), Supplemental Generic Environmental Impact Statement (SGEIS) and draft Supplemental Generic Environmental Impact Statement (dSGEIS). These studies have clearly set forth that HVHF is a viable and acceptable practice of retrieving and extracting the enormous gas reserves in the State of New York and, in particular, the County of Allegany. (R-24). The scientific reports have concluded that HVHF is a safe and useful means in the extraction of New York State gas reserves. (R-25).



The Amended Petition is based upon the studies prepared by Respondents. The facts, allegations, statements or “conclusions” were derived directly from the draft Supplemental Generic Environmental Impact Statement (dSGEIS) which consisted of a compilation of the previous Generic Environmental Impact Statement (GEIS) and Supplemental Generic Environmental Impact Statement (SGEIS). These studies were commenced as early as 1992 and establish that the temporary and permanent bans by Respondents were arbitrary, capricious and a violation of Petitioner’s constitutional rights under the United States Constitution and the New York State Constitution. (R22, 96 and 237).



Petitioner-Appellant submitted that the Respondents’ “permanent” ban was not based on the previous studies, research and analysis but rather a “new study” derived from speculation, conjecture, and meritless conclusions not supported by science, technology, or geology. The Department of Health (DOH) study, which was completed in the Fall of 2014, was in direct conflict with the extensive studies stated herein which set forth that HVHF could be performed safely. The DOH study contradicts the multiple studies of the Respondents that have concluded that HVHF is a safe and useful means in the extraction of natural gas reserves. (R-236 to 239).





The Appellant and his wife own in excess of 850 acres in western New York that can support HVFH. (R-224,225,230 and 231). The majority of the property is located in the County of Allegany which is found in the southern tier of the State of New York. This area is in the southwestern region along the Pennsylvania border in the foothills of the Allegany Appalachia mountain range. The properties are located in the Towns of Belfast, Cuba and Wellsville in the County of Allegany. The Petitioner’s properties are basically forested land consisting generally of “Allegany hardwoods” with some grasslands and agricultural land that is used for crop development or grazing. The vast majority of the properties are forested. (R-239).



The Petitioner-Appellant has been involved in the viability of conducting oil and gas exploration since 1997 when he and his wife purchased approximately 400 acres in the Town of Belfast (R-225, 231). Said property had a total of six (6) oil and gas leases from Shell Oil Company, CNG Producing Company and a private wildcatter who resided in Bradford, Pennsylvania. Petitioner was able to obtain all releases of oil, gas and mineral releases from the hereinstated companies in 1997 (R-225,231). Between 1997 through 2003 Petitioner and his wife purchased additional acreage located in the Town of Belfast and Town of Wellsville (R-226,232). On said additional acreage, there were oil and gas leases from Consolidated Gas Supply Corporation, Dominion Transmission Incorporated, CNG Development Company, Shell Oil Company, Consolidated Gas Supply Corporation, Columbia Natural Resources, Chesapeake Energy and other oil and gas companies. All leases were eventually vacated (R-226,232). Between February 25, 2013 through October 15, 2013, Petitioner personally had communications with approximately fifty (50) oil and gas exploration companies to conduct HVHF on Petitioner’s properties (R-226,227,232 and 233). All representatives from all oil and gas exploration companies declined negotiations with Petitioner for gas leases or to actually conduct exploration/extraction on the properties as a direct result of the “temporary ban” of HVHF by Respondents (R-227,233). In all communications with said oil and gas companies, Petitioner was advised that when the acreage became “open” to Marcellus and Utica drilling activity, Petitioner would be contacted. (R-227,233).



Petitioner-Appellant had further discussions with Respondent and other state and federal agencies and departments during the past ten (10) years in regard to oil and gas exploration on the properties. (R-227, 233). Specifically, during the past five (5) years, Petitioner had discussions with the hereinstated involving the “temporary ban” on HVHF. Petitioner was advised by Respondent that it was not possible to conduct HVHF during the ban period. Appellant has been waiting in excess of five (5) years for the Respondent to lift the “temporary ban” on HVHF (R-227,233). During this time period, Petitioner was advised by Respondent that “commercial” HVHF operations were subject to the ban but that it was expected that the “temporary ban” would be lifted during 2015 (R-228, 234). All stakeholders, including Petitioner, believed that the “temporary ban” was going to be lifted and commercial HVHF would be a viable option to extract mineral rights in, at least, the Southern Tier of New York. (R-228,234).









The final purchase of 339 acres occurred in the Town of Cuba on or about April 29, 2014 for the specific purpose of HVHF. (R-228, 234). Prior to the closing date, Petitioner was able to obtain a surrender/cancellation/release of oil and gas leases on the hereinstated property. (R-228, 234).



Thereafter, on or about December 17, 2014 Petitioner was advised that the ban on HVHF was going to be “permanent”. (R-118). On December 23, 2014 and January 28, 2015, Petitioner-Appellant communicated with Respondent that if he, a noncommercial private landowner(s), could obtain a permit or commence the process to obtain a permit for HVHF. (R-97 to 99, 120 to 122). On January 29, 2015, Petitioner received communication from the Respondent that he could not obtain a permit or attempt to obtain a permit. (R-123).



The permanent ban on HVHF has been a very serious economic hardship as Appellant has not been able to extract vast mineral resources of natural gas on his property(s) that all have plays in the Utica and Marcellus shales.(R-228, 234). That not only is there a serious economic hardship, there will be a devastating environmental impact and harm that will be caused if HVHF is permanently banned on Petitioner’s properties. Petitioner-Appellant has analyzed, studied, critiqued, deciphered information involving gas exploration on the properties for many years (R-228, 235). He and his wife have done an exceptional amount of research in tracking down companies that originally owned and then assigned leases to other companies over the years to cancel, vacate, release or surrender said leases on their properties (R-229, 235). That for at least the past five (5) years, Petitioner-Appellant has very actively tried to conduct HVHF gas exploration on the properties but has been unsuccessful as a result of the “temporary ban” that eventually led to the “permanent ban”. (R-229, 235). During the past five (5) years, Petitioner has been advised from Respondent, oil and gas company executives, leasing agents, attorneys and other landowners that it would not be possible to obtain a permit or to even commence the permit process as there was a “temporary ban” that eventually led to a “permanent ban”. (R-229, 235). For the Respondent to have argued that Petitioner could have commenced the process for filing a permit is absolutely and unconditionally wrong. In fact, Respondent has admitted that in 2010 Governor Patterson issued an Executive Order prohibiting the issuance of any permits for HVHF (R-113) and in January 2011, Governor Cuomo extended the Order. (R-114).



That within 120 days of being notified by Respondents that the “temporary ban” was converted to a “permanent ban”, Petitioner-Appellant commenced the Article 78 proceeding by the filing of a Petition and subsequent Amended Petition. The Amended Petition consists of 135 paragraphs in a 73 page document. (R-22 to R-99).



Paragraphs 10 through 132 plead evidentiary facts prepared by Respondent in its draft Supplemental Generic Environmental Impact Statement which was derived from the Generic Environmental Impact Statement (GEIS) and Supplemental Generic Environmental Impact Statement (SGEIS). The Amended Petition is a synopsis of these very extensive reports which have concluded that HVHF is a safe and useful means in the extraction of New York State gas reserves. (R-25 to 93). Paragraph 133 clearly sets forth that the determination made by the Respondents was not based upon either the facts or circumstances involving the Petitioner’s ability to obtain a permit or be allowed to commence the process to obtain a permit. The Petitioner had exhausted all administrative remedies relative to this issue and was specifically advised that he could not commence the hereinstated process or allow the process to commence for obtaining a permit.(R-94). It was further submitted that the Respondents’ rules, regulations and recommendations represented the most comprehensive measures in the United States to protect the water, land, air and environmentally sensitive areas of New York State.(R-94). Simply, it was submitted that to deny Petitioner’s request to obtain a permit or to be allowed to commence the process to obtain a permit was arbitrary and capricious and violated Petitioner’s rights to due process of law under the Constitutions of New York State and the United States. (R-94). Petitioner-Appellant then respectfully requested a review by the New York State Supreme Court involving all proceedings, decisions and actions of the Respondents that the determination to ban Petitioner’s right to obtain a permit or to commence the process to obtain a permit be corrected on the merits and that the Petitioner-Appellant have judgment annulling and setting aside the determination that denied Petitioner the ability to conduct HVHF.(R-94 to 95).



Respondents moved to dismiss pursuant to CPLR §3211(a)(1), (2), and (7), and CPLR §7804(f), arguing that Petitioner: 1) failed to allege that he was directly or immediately affected by the statewide prohibition on HVHF; 2) lacked any direct concrete injury in fact different from the public at large caused by Respondents’ denial of his request; 3) even if Petitioner could establish an injury in fact, the economic injury that he alleged fell outside the scope of the State Environmental Quality Review Act (SEQRA); and 4) even if Petitioner had standing, Petitioner’s claims should be dismissed because he failed to exhaust his administrative remedies by failing to apply for a permit to develop any mineral interest that he may own. (R-101).



Thereafter, on October 29, 2015 Petitioner filed the Reply to the Motion to Dismiss (R-170 to 235). The Reply addressed the following:



A. Permitting Process for Gas Drilling (R- 181 to 184);

B. Material Issues of Fact (R-184 to 190);

C.The New York State Department of Health Review Was Based On Speculation and Conjecture (R-191 to 199) ;

D. New York State’s Environmental Quality Review Act (SEQRA) (R-200 to 201);

Enormous Negative Environmental Impact on Petitioner’s Properties If HVHF is Not Allowed (R-201 to 202);
Final Supplemental Generic Environmental Impact Statement 2015 (R-202 to 204);
Article 78 Law (R-204 to 206);
The Court Should Deny the Motion to Dismiss (R-206 to 207);
Standing (R-207 to 214);
Exhausting Administrative Remedies (R-214 to 218); and


The Ban is a Regulatory Taking in Violation of the United States Constitution (R- 218 to 221).



That on December 28, 2015, Petitioner filed the Surrebuttal to Notice of Motion to Dismiss. (R-236 to 265). Petitioner addressed the following:


Environmental Impact (R-239 to 242);
Petitioner has Standing (R-242 to 247);
Petitioner has Exhausted Administrative Remedies (R-247 to 250); and
Petitioner has Stated a Cause of Action for an Unconstitutional Taking (R-250 to 253).



Petitioner had submitted that he has pled, through the Article 78 process, relevant allegations of fact that have given rise to a legal cause of action involving a question of “state-wide importance” as to whether or not Petitioner-Appellant could conduct HVHF. (R-236). Petitioner further submitted that this case was worthy of being addressed by judicial review with a fact finding determination. (R-254).





PROCEDURAL HISTORY



Petitioner-Appellant, a landowner with properties in Allegany County in the State of New York commenced this Article 78 action in Allegany County arguing that Respondents’ denial of Petitioner’s request to obtain a permit or to commence the process to obtain a permit to conduct HVHF on his properties was arbitrary and capricious and violated Petitioner’s rights to due process of law under the Constitutions of New York State and the United States. This proceeding was brought by the Petitioner-Appellant to require the Respondent to allow HVHF on his own properties. The legal proceedings originated in the New York State Supreme Court- County of Allegany but were transferred to Albany County. Respondents moved to dismiss the Article 78 proceeding pursuant to CPLR §3211(a)(1), (2),(7) and CPLR §7804(f) arguing that Petitioner, among other things, did not have standing. On February 10, 2016 the Hon. Lisa M. Fisher, Supreme Court Justice granted Respondents’ Motion to Dismiss the Petition in its entirety. A Notice of Appeal was filed by Petitioner-Appellant on March 3, 2016.


ARGUMENT



Point 1



TRIAL COURT ERRED IN DISMISSING PETITION UNDER

CPLR §3211(a) 1, 2 and 7.



Trial Court Erred In Applying Incorrect Standard.



The trial court applied an incorrect standard in analyzing the Motion to Dismiss pursuant to CPLR §3211. This Motion is a device by which a dismissal may be sought before service of an Answer. In the case at bar, the Respondent has not filed an Answer and discovery has not been commenced. Subdivision (a) list grounds on which a Motion to Dismiss the cause of action may be made. The statute specifically states in pertinent part:



“(a) Motion to Dismiss Cause of Action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
a defense is founded upon documentary evidence; or
the court has not jurisdiction of the subject matter of the cause of action; or …..

7. the pleading fails to state a cause of action; ….”



Further, CPLR §3211(c) empowers the trial court on any CPLR 3211 motion, whether to dismiss a cause of action under subdivision (a) or (b), to treat the motion as one for summary judgment. CPLR §3211(c) states in pertinent part:



“Upon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, (emphasis added), may treat the motion as a motion for summary judgment. …”



The trial court did not, in any way, advise Petitioner that this Motion to Dismiss was going to be converted to a Motion for Summary Judgment. The case law is absolutely clear that when a court is going to treat a CPLR 3211 motion as one for summary judgment, the trial court must provide the petitioner with adequate notice of its intention to do so. The simple point of this requirement is to provide the petitioner with an opportunity to make an appropriate record before the court decides the motion. The notice must come from the trial court itself. Notice from any other source is not legally sufficient. The notice must clearly and unambiguously alert the petitioner that the trial court intends to treat the motion as one for summary judgment.









The case law is very clear that courts err when it treats a Motion to Dismiss as a Motion for Summary Judgment without first providing adequate notice to the parties that it is doing so. Blackburn vs Shapiro, 288 AD2d 870 (4th Dept 2001); Wiesen vs New York University, 304 AD2d 459 (1st Dept 2003). The trial court’s sua sponte conversion of the Motion to Dismiss the Amended Petition into a Motion for Summary Judgment was improper for the simple fact that the trial court did not give notice to the petitioner. However, the trial court’s actions are even more egregious and improper for the following reasons: the record on the issues decided were sparse; the status of the case was pre-answer and pre-discovery; the action did not exclusively involve issues of law fully appreciated and argued by the parties; there were serious issues of fact involving science, technology and geology; and the petitioner was severely prejudiced by the grant of summary judgment on issues that he had no opportunity to address. See Huggins vs Whitney, 239 AD2d 174 (1st Dept 1997); Vanderbeek vs Beckerle, 116 AD3d 764 (2nd Dept. 2014).



Even in a situation where a court advised the parties that the Motion to Dismiss was going to be converted to a Summary Judgment pursuant to CPLR §3211(c), the preliminary order must be very direct and unequivocal. In Pine Street Homeowners Association vs 20 Pine Street, LLC, 109 AD3d 733 (1st Dept 2013), the court held that the “Interim Order”, which notified parties that the court “may treat all pending motions to dismiss as motions for summary judgment conversion pending consideration of support or opposition by the parties” and invited the parties to submit papers “in support or opposition,” did not provide adequate notice to the parties of the trial court’s intention to convert the motions. Moreover, in Town of Geneva ex rel Town Board vs City of Geneva 63 AD3d 1544 (4th Dept 2009), the court held that the trial court’s conversion of a Motion to Dismiss to one for Summary Judgment was error as the court did not provide adequate notice to the parties that it was converting the motion, nor did the parties otherwise receive adequate notice by expressly seeking Summary Judgment by submitting facts and arguments clearly indicating that they were deliberately charting a Summary Judgment course. In the case at bar, there were no actions or requests by either party that the Notice of Motion be converted and the conduct of both parties was not “chartering a Summary Judgment course”. Further, there are no exceptions to the notice requirement that are applicable in the case at bar.


Trial Court Erred In Not Giving A Liberal Construction, Accepting The Allegations As True And Accord The Petitioner Every Possible Favorable Inference As Required



When considering pre-answer motions to dismiss for failure to state a cause of action, the Court of Appeals has acknowledged that “we” must give the pleadings a liberal construction, accept the allegations as true and accord the (petitioner) every possible favorable inference, Chanko et al vs American Broadcasting Companies (Court of Appeals, Docket No. 44, decided on March 31, 2016), see Goshen vs Mutual Life Insurance Company of New York, 98 NY2nd 314 (2002). The Court of Appeals further held that it may also consider affidavits submitted by (petitioner) to remedy any defects in the (petition), because the question is whether (petitioner) had a cause of action, not whether they have properly labeled or artfully stated one. See Leon vs Martinez, 84 NY2nd 83 (1994). However, in the case at bar, the trial court never gave notice to Petitioner-Appellant of the conversion to Summary Judgment so that Appellant would have the opportunity to supplement, file or expand its factual and legal arguments through affidavits to address a Motion to Dismiss that was improperly converted to a Motion for Summary Judgment.



In Johnson et al vs Proskauer et al, 129 AD3d 59 (1st Dept 2015), the court held that a motion brought pursuant to CPLR 3211 analyzing plaintiff’s claims, are limited to the four corners of the pleading, the allegations of which it must give a liberal construction and accept as true (citing Leon supra). The court stated that “we must also accord plaintiffs the benefit of every possible favorable inference and bear in mind that “(w)hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a Motion to Dismiss”. See EBC Number One, Incorporated vs Goldman, Sacks and Company, 5 NY3d 11 (2005).



chasgas
chasgas
 
Posts: 3538
Joined: Mon Jun 15, 2009 2:36 pm

Re: Takings????

Postby chasgas » Sat Apr 15, 2017 3:49 pm

part 2:


Trial Court Erred In Dismissing Petition Pursuant to CPLR 3211(a)(1)



To succeed on a motion to dismiss pursuant to CPLR 3211 (a)(1) on the ground that a defense is founded on documentary evidence, the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the petitioner’s claim. AG Cap Funding Partners vs State Street Bank and Trust Company, 5 NY3d 582 (2005); 511 West 232 2nd Owners Company vs Jennifer Realty Company, 98 NY2d 144 (2002); Held vs Kaufman, 91 NY2d 425 (1998) and Leon vs Martinez, 84 NY2d 83 (1994). To qualify as “documentary,” the evidence relied upon must be unambiguous and undeniable, such as judicial records and documents reflecting out of court transactions such as mortgages, deeds and contracts.



The trial court in its decision specifically stated that it “agreed” with the Respondent that Petitioner’s opposition and cause of actions contained many unsupported allegations. The trial court further stated that the allegations were bare legal conclusions inherently incredible or flatly contradicted by documentary evidence. It is presumed that the “documentary” evidence was the Respondent’s most recent “studies” of the Department of Health and final Supplemental Generic Environmental Impact Statement 2015. Respondents have studied, researched, analyzed and critiqued for the past twenty-five (25) years the facts, allegations, statements or conclusions raised in the Amended Petition using scientific studies, technology, geology, peer review and research in the oil and gas industry. The Amended Petition, Paragraphs 6 through 132 (R-25 to 93), are based directly upon the studies prepared by Respondents. The facts, allegations, statements or conclusions were derived directly from the draft Supplemental Generic Environmental Impact Statement (dSGEIS) which consisted of a compilation of the previous Generic Environmental Impact Statement (GEIS) and Supplemental Generic Environmental Impact Statement (SGEIS) studies that commenced as early as 1992. These studies, it is submitted, establish that the temporary ban and eventual permanent ban by Respondents was arbitrary or capricious. It is presumed that the trial court did not read the 1,571 page dSGEIS report-for if it had-there is a complete contradiction between the studies and reports prepared by Respondents. These contradictions, in and of themselves, forms the arbitrary and capricious acts of Respondent.





It is strongly asserted that the pleadings were not incredible or flatly contradicted. As stated herein, the Amended Petition clearly set forth facts and circumstances to establish that the Respondents’ denial of Petitioner-Appellant’s request to obtain a permit to conduct HVHF, or to commence the process to obtain a permit, on his properties was arbitrary and capricious and further violated Petitioner’s right to Due Process of law under the Constitutions of the United States and New York State. The causes of action were clearly established by delineating the Respondent’s studies with the factual determination of the causes of action. For the trial court to determine that the legal conclusions were inherently incredible or flatly contradicted by documentary evidence is fundamentally wrong as the entire cause of action was based directly on the hereinstated studies. Respondent producing documentation of the “recent” studies should not bar Petitioner’s claims for arbitrary and capricious actions taken by the Respondent. At this stage of the proceedings these “recent” documents (studies) do not establish a defense as a matter of law. It is strongly submitted that this “documentary evidence” further exasperates and weakens the position of the Respondent as they are now discounting twenty-five (25) years of studies involving the multiple Generic Environmental Impact Statements that plainly and absolutely determined that HVHF was a viable means to extract natural gas off of Petitioner’s properties. Respondents’ Motion to Dismiss pursuant to CPLR 3211 (a)(1) was improperly granted.



D. Trial Court Erred In Dismissing Petition Pursuant to CPLR §3211(a)(2)





The Respondent, pursuant to its Motion to Dismiss, raised an issue in regard to subject matter jurisdiction. Whether or not a court has jurisdiction of the subject matter of a dispute is determined by the constitution, the statutes, and occasionally, the rules that confer the jurisdiction. If the movement can demonstrate the absence of subject matter jurisdiction, the appropriate statute to use is CPLR §3211(a)(2). Petitioner submits that there is subject matter jurisdiction and a petition pursuant to Article 78, is an appropriate remedy to request judicial review by the New York State Supreme Court of all of the proceedings, decisions and actions of the Respondents in this matter in setting aside the determination that denied Petitioner the ability to conduct HVHF on his property(s).



Petitioner-Appellant submits that the determination made by the Respondents was not based upon either the facts or circumstances involving the Petitioner’s ability to obtain a permit or be allowed to commence the process to obtain a permit to conduct HVHF on his properties located in Allegany County, State of New York. There is subject matter jurisdiction as Petitioner has exhausted all administrative remedies relative to this issue as the Commissioner and Director of Respondent have specifically advised Petitioner that he cannot commence the hereinstated process. To deny Petitioner’s request to obtain a permit or be allowed to commence the process to obtain a permit is arbitrary and capricious and violates Appellant’s rights to due process of law under the Constitutions of the United States and New York State. Petitioner has subject matter jurisdiction and the Amended Petition should not have been dismissed pursuant to CPLR §3211(a)(2).





E. Trial Court Erred In Dismissing Petition Pursuant To CPLR 3211(a)(7).



The legal standards to be applied in evaluating a Motion to Dismiss pursuant to CPLR 3211(a)(7) are well settled. In determining whether a pleading is sufficient to withstand a motion to dismiss pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action. If from the four corners of the complaint factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss must fail. 511 West 230 2nd Owners Corp vs Jennifer Realty Company, 98 NY2d 144 (2002). The trial court’s function is to “accept… each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff’s ability ultimately to establish the truth of these averments before the trier of the facts”. 219 Broadway Corp vs Alexanders Inc., 46 NY2d 506 (1979). The pleading is to be liberally construed and the pleader afforded the benefit of every possible favorable inference.



All courts in New York State accept the basic simple premise in determining whether to grant such a motion to dismiss, pursuant to CPLR §3211, the pleadings are to be afforded a liberal construction and the trial court should: accept as true the facts alleged in the complaint; accord plaintiff the benefit of every possible inference; and only determine whether the facts, as alleged, fit within any discernible legal theory. Leon vs Martinez, 84 NY2d 83 (1994); CBS Corp vs Dumsday, 268 AD2d 350 (1st Dept 2000). Stated another way, the motion to dismiss must be denied if from the pleading’s four corners there are factual allegations that are discerned which taken together manifest any cause of action cognizable at law. J.P. Morgan vs Vigilant Ins Company, 21 NY3d 324 (2013); Rovello vs Orofino Realty Company, 40 NY2d 633 (1976); 511 West 230 2nd Owners Corp, Supra; Polonetzky vs Better Homes Department, Inc. 97 NY2d 46 (2001); Frank vs Daimler Chrysler Corp, 292 AD2d 118 (1st Dept 2002); Town of Carmel vs Melchner ,105 AD3d 82 (2nd Dept 2013); Quiroz vs Zottola, 96 AD3d 1035 (2nd Dept 2012); Sayyed et al vs Murray, 109 AD3d 464 (2nd Dept 2013).



Further, the Petitioner-Appellant supplied two (2) affidavits in its Reply to Notice of Motion to Dismiss establishing in greater detail, commencing in 1997, the viability of conducting oil and gas exploration on Petitioner’s properties. At the time of the preparation of the Reply and the subsequent Surrebuttal, Petitioner-Appellant was never notified that this Motion to Dismiss had been converted to a Motion for Summary Judgment. The affidavits filed herein were merely to show to the trial court that the commencement of the Article 78 Petition was not on a “whim” or for possible “someday plans”- as the trial court held. As will be set forth in addressing the “Standing” issues, the Reply (R-170 to 235) with supporting affidavits and the Surrebuttal (R-236 to 265) clearly explain the reasons why the Notice of Motion to Dismiss should not have been granted.





F. Trial Court Erred In Considering Respondents’ Affidavit In Its Determination To Grant Motion to Dismiss



The Court in Henbest and Morrisey Inc vs W.H. Insurance Agency et al, 259 AD2d 829 (3rd Dept 1999) determined multiple concepts of the law that have been stated in Point I of this brief in addressing a Motion to Dismiss. The Court held that it is fundamental law that a Motion for Summary Judgment may not be made prior to joinder of issue pursuant to CPLR 3212(a). Further, a Motion to Dismiss, pursuant to CPLR 3211(a), may be converted to a Summary Judgment Motion by the trial court after adequate notice to the parties (CPLR 3211 (c)). As stated herein, no such notice was given in this case. The Court also held that notice requirements may be obviated in cases where it can be found that the parties “deliberately charted a summary judgment course”. See Four Seasons Hotel vs Vinnik, 127 AD2d 310 (1st Dept 1987 ). The record does not support such a finding in the case at bar. See Mihlovan vs Grozauvu, 72 NY2d 506 (1988). Further, the Court acknowledged that the Plaintiff contended that the Summary Judgment was premature and that discovery was necessary in order to ascertain critical evidence that was within Defendant’s (Respondents’) sole knowledge and control. The argument is the same for Petitioner-Appellant as Respondents were the ones that have prepared all the studies, research and analysis which forms the basis of the draft Supplemental Generic Environmental Impact Statement that was submitted by Petitioner and now contradicted by Respondent.



Ultimately, relevant to this argument of Point I (F) of this brief, in Henbest and Morrisey, the Court determined that in the Motion to Dismiss, a trial court must accept the allegations of the Complaint (Amended Petition) as true and ignore the any affidavits submitted by defendants (Respondents). See Rovello vs Orofino Realty Company, 40 NY2d 633 (1976); Matter of Morey vs City of Gloversville, 203 AD2d 625 (NY App Div 1994); Methe vs General Electric Company, 169 AD2d 864 (3rd Dept 1991); Matter of FYM Clinical Lab vs Perales, 147 AD2d 840 (3rd Dept 1989).



POINT II



TRIAL COURT ERRED IN DISMISSING PETITION AS PETITIONER HAS STANDING, EXHAUSTED ADMINISTRATIVE REMEDIES AND HAS VIABLE CONSTITUTIONAL CLAIMS





A. Trial Court Erred In Dismissing Petition As Petitioner Has Standing And Capacity To Commence Said Action.



Standing is a threshold requirement for a petitioner seeking to challenge governmental action. NYS Association of Nurse Anesthetists vs Novello, 2 NY3d 207 (2004). In order to have standing to bring or maintain an Article 78 Proceeding, the party must show injury in fact. It must further be shown that a petitioner will actually be harmed by challenged action and that the injury falls within the zone of interest or concerns sought to be promoted or protected by the statutory provision under which the agency has acted. As a general rule, one who is not adversely affected or aggrieved cannot maintain an Article 78 Proceeding. Sun-Brite Carwash, Inc. vs Board of Zoning and Appeals of Town of North Hempstead, 69 NY2d 406(1987). However, where a denial of standing would pose an untenable barrier to any judicial scrutiny of governmental action, the court’s duty is to open rather than close the door to the courthouse. Saratoga County Chamber of Commerce, Inc vs Pataki, 100 NY2d 801 (2003).



It is acknowledged that Petitioner-Appellant must show injury in fact caused by the challenged action of permanently banning HVHF. In other words, the Petitioner must show that the challenged actions and determinations of banning HVHF by Respondents has had a harmful effect upon him. It is strongly submitted that the actions of the Respondents have had devastating economic and environmental consequences placed upon the Petitioner. Moreover, in regard to the trial court’s determination that Petitioner lacked standing, the trial court merged standing issues with the exhaustion of administrative remedies. The trial court stated four (4) reasons for its determination that standing did not exist.



First, the trial court determined that Petitioner failed to establish “concrete plans” or failed to establish intent to do the gas exploration. Simply, the Respondents’ temporary and then eventual permanent ban destroyed the ability to conduct any type of HVHF gas exploration on Petitioner’s properties. Respondents’ actions for at least the past five (5) years prevented the Petitioner-Appellant to establish “concrete plans” for HVHF exploration. Simply, Petitioner was waiting for the “someday” to conduct gas exploration using HVHF technology. As previously stated, Respondents have admitted that Governor Patterson issued an Executive Order in 2010 prohibiting the issuance of any permits to conduct HVHF. In 2011, Governor Cuomo extended the temporary ban (R-114) that eventually led to the permanent ban on HVHF.



The second reason for the failure to establish “standing” by the trial court’s determination was that Petitioner-Appellant “admitted” that he did not file for a permit as he would be denied. Respectfully, throughout this entire Article 78 proceeding, the trial court failed to comprehend, admit, acknowledge or understand that the actions taken by the Respondent during the temporary ban period froze all HVHF exploration. No HVHF permits were issued. No HVHF permits were allowed to be issued. No one was allowed to apply for the HVHF permits. The Respondents themselves took the action of not allowing any one the ability of obtaining a permit or to commence the process of obtaining a permit to commence HVHF. The trial court then held that the cause of action was too “speculative” because it is necessary to apply for a permit. As repeatedly stated herein, the Petitioner could not legally apply for a permit pursuant to the temporary ban and eventual permanent ban on HVHF as set forth above. It is disingenuous for Respondents to argue that the Petitioner should have applied for a permit when a permit, under any conceivable analysis, would have been denied as a result of the ban on HVHF. The “Doctrine of Futility” is classically represented in the facts and circumstances involving the case at bar.



The Respondents then argued that even though Petitioner legally could not have applied for a permit or receive a permit because of the ban, the Petitioner-Appellant should have tried any way. The Respondents have acknowledged that the permit process is a “technically complex” permit process that is expensive. However, Respondents state that Petitioner should have gone through the “technically complex” permit application process even though Petitioner was not going to be granted a permit to conduct HVHF. The case cited by the trial court in Wedinger vs Goldberger, 71 NY2d 428 (1998) is distinguished from the case at bar. In Wedinger, the petitioners could have filed for a permit but failed to do so. Petitioner, was never allowed to apply for any HVHF permit during the multiple years stated herein pursuant to the executive orders of the Executive Branch of the New York State Government.



The third issue that the trial court determined for lack of standing was that Petitioner did not distinguish himself from the public at large. The trial court either misquotes, misinterprets or completely misunderstands that the Petitioner “admitted” that the ban affects all property owners in New York. In Paragraph 7 of the Amended Petition, Petitioner specifically stated the following:



“Upon information and belief, that on January 16, 2015, within the statutory time period for an Article 78 Proceeding, Bradley J. Field, former Director of the Division of Mineral Resources for the Department was directed by former Commissioner Martens to inform Petitioner that the prohibition for high-volume hydraulic fracturing in the State of New York applied to all owners of property in New York including Petitioner”. (Emphasis added) (R- 24).



Petitioner was merely quoting Director Bradley J. Field. Petitioner-Appellant did not admit, imply or acknowledge that he should be treated the same as all other property owners in the State of New York. The trial court then cited tax cases on property owners and case law involving standing for real property taxpayers. These cases are completely irrelevant and distinguished from the issues before this Court relative to standing of Petitioner-Appellant.



The fourth and final reason that the trial court determined that there was no standing was that Petitioner-Appellant has acknowledged that there would be very serious economic hardships if the ban is not lifted. The trial court determined that economic hardship does not confer standing to sue under the New York State Environmental Quality Review Act (SEQRA). As repeatedly stated throughout the pleadings, there are also enormous negative environmental impacts on Petitioner’s properties if HVHF is not allowed.



However, SEQRA may not be an issue on Petitioner’s properties involving the facts and circumstances of the permanent ban on HVHF. That issue has not been determined. The objective of SEQRA is “to determine whether or not a project or activity should be approved or undertaken in the best over-all interest of the people of the state.” In re City Council of City of Watervilet vs Town Board of the Town of Colonie, 3 NY3d 508 (2004); Matter of Weok Broadcasting Corp vs Planning Board of Lloyd, 79 NY2d 373 (1992); Matter of Town of Henrietta vs Department of Environmental Conservation, 403 NYS2d 440 (1980). Critical to achieving that purpose are the people themselves whose participation “inject environmental considerations directly into governmental decision making.” Coca Cola Bottling Company vs Board of Estimate, 72 NY2d 674 (1988). Indeed, SEQRA recognizes not only the right of the public to participate in the environmental review process, but their responsibility to do so. See ECL §8-0103(2). Simply, SEQRA relies on citizen participation because it demands a “more than theoretical” look at the significant real-world consequences of government actions, E.F.S. Ventures Corp vs Foster, 71 NY2d 359 (1988). The statute and regulations require opportunity for public input and it is actively solicited at every step of the SEQRA process, from the initial scoping process to the final agency determination. See N.Y.C.R.R. §§617.7(d)(1).



Petitioner acknowledges that under SEQRA, if subject to this “classification,” he must demonstrate that he will suffer injury in fact that is environmental and not solely economic in nature. The zone of interest which SEQRA encompasses are determined by the impact of an agency’s action on the relationship between the state’s citizens and their environment. Chatham Towers Inc vs Bloomberg, 6 Misc. 3d 814 (Sup. Ct. 2004). Only those who can demonstrate legally cognizable injury to that relationship can challenge administrative action under SEQRA. Chatham Towers Inc, Supra. At this time, it is speculative that SEQRA is a relevant issue in regard to determining whether or not HVHF can be conducted on Petitioner’s properties.



However, whether or not Petitioner-Appellant is subject to SEQRA- he does have negative environmental and economic impacts pursuant to the actions taken by the Respondent. The Petitioner is directly subject to an adverse effect by the Respondents’ ban. The harm suffered will continue unless a court grants relief in the form of damages or a finding that the permanent HVHF ban does not apply to the Petitioner. Failure to allow Petitioner the right to conduct HVHF on his own property classically falls under the “something to lose” doctrine because he directly has been harmed by the conditions for which Petitioner is asking the Court for relief. As stated, Petitioner has suffered direct harm and the injury is clearly different from the public at large for the following reasons:

(1)Petitioner purchased 339 acres of land in Cuba, New York in the latter part of April 2014 for the specific purpose to conduct HVHF; (2)Petitioner is the owner of the property or in control of the properties; (3)Petitioner pays the taxes on the properties; (4)Petitioner owns the mineral rights of natural gas on said properties; (5)Petitioner’s properties are in a viable area to conduct HVHF while the majority of the State of New York is not.





The vast majority of the State of New York and the “public at large” is not directly, or even indirectly, impacted by the ban on HVHF. Respondents’ rules and regulations involving setbacks, watersheds, distances, spacing etc.- would establish that very few landowners in the State of New York could even attempt to do HVHF. The majority of the State of New York does not have viable access to the Marcellus and Utica shale plays. There are only a few counties along the Pennsylvania border that are located in the hereinstated areas. There are very few landowners in this region that have the sizable acreage to conduct HVHF on their own properties. Petitioner’s properties are in a unique area and the ban on HVHF has caused both very serious economic and environmental hardships.



Continuing, the ban has caused an injury in fact which is actual, it is not conjecture, not hypothetical, and not abstract. The denial of Petitioner’s right to do HVHF is not a casual connection between the injury and the conduct complained but in fact has specifically denied Petitioner his right to conduct HVHF on his properties. The injury is not speculative. The economic injury is clear. Not being able to use HVHF on Petitioner’s properties will have obvious devastating economic implications in not extracting the natural gas resources that are located on the properties in the Marcellus and Utica Shales.



However, as has been set forth in the Reply (R-170 to 235) and Surrebuttal (R-236 to 265), the environmental harm that will be directly caused by a ban on HVHF will be devastating as well. Conventional frack wells are legal on Petitioner’s properties and were readily used throughout the Southern Tier of the State of New York. There are literally tens of thousands of conventional fracked wells throughout the Upstate Western New York area. As set forth in the Reply and Surrebuttal, Petitioner-Appellant, using conventional fracked wells pursuant to the rules and regulations of the Respondents, could place potentially up to twelve (12) gas wells on the property located in the Town of Belfast and approximately eight (8) well sites on the property located in the Town of Cuba. To develop potentially twenty (20) different well sites on the properties stated herein would have an enormous negative environmental impact on the properties. As set forth in the Reply and Surrebuttal, building the infrastructure required for each of the twenty (20) separate wells would have a devastating impact on Petitioner’s properties. Alternatively, using one (1) unconventional fracking (HVHF) well would basically have minimal or no negative environmental impact on the properties. The one unconventional HVHF drill site on each property could extract the same natural gas on each property but only requiring one access road, one drill site etc. Moreover, the water usage would be minimal for one unconventional HVHF drill site on each property compared to the allowed limit of 300,000 gallons of water per conventional drill site. Petitioner could therefore use up to six million gallons of water for the multiple (20) conventional drill sites. Alternatively, with HVHF unconventional drilling, Petitioner would use a fraction of water use. Again, the use of HVHF unconventional drilling would have an enormous positive environmental impact involving soil and water conservation, nature, wildlife habitat improvement, best management practices on the properties, forestry stewardship and nature. Respondents’ allegations that there is no environmental impact between conventional and unconventional gas exploration is clearly without merit. For the trial court to accept this argument is without merit.



Petitioner-Appellant respectfully submits that the trial court erred in dismissing the claim as the cause of action is justifiable because there are direct, concrete and nonspeculative harms that are clearly distinct from the public at large. The Petitioner has been directly impacted by the ban of HVHF which has irrevocably harmed the Petitioner. Simply, the harm in fact exists and it is direct and immediate. See Weingarten vs Lewisboro, 77 NY2d 926 (1991). The harm is not insignificant, remote or contingent. See Matter of Adirondack Council, Inc. vs Adirondack Park Agency, 92 AD3d 188 (3rd Dept 2012). Further, as stated above, the injury is succinctly distinct from that faced by the public at large. Matter of Colella vs Board of Assessor of the County of Nassau, 95 NY2d 401 (2000). Petitioner has clearly established his burden that his injury is real and different from the injury that members of the public would face. See Matter of Save the Pinebush Inc. vs Common Council of the City of Albany, 13 NY3d 297 (2009).



The trial court then held that a litigant’s “someday” intention, without any description of concrete plans, or indeed any specification of when the someday would be- do not support a finding of the actual or imminent injury that New York case law requires. See Matter of Association for a Better Long Island, 23 NY3d at 7 (quoting Lujan vs Defenders of Wildlife, 504 US 555 (1992)). Petitioner was waiting for the “someday” for the Respondents to lift the ban so that he could commence the process of obtaining a permit to conduct HVHF. As stated, for approximately five (5) years, Petitioner-Appellant was told by the Respondents that HVHF would be an allowable practice to retrieve natural gas in the State of New York. Petitioner was waiting for the “someday” to commence the retrieval of natural gas.



Recently, the Court of Appeals in the Matter of Sierra Club et al vs Village of Painted Post, et al, 26 NY3d 310 (2015) expanded the definition and concept of standing. The Court of Appeals examined the law of standing and set forth a framework for deciding whether parties have standing to challenge governmental action in land use matters. The Court of Appeals stated that it previously held in Society of Plastics Industry vs County of Suffolk, 77 NY2d 761 (1991) “that the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is someway different than that of the public at large.” The Court of Appeals specifically stated that it gave “us the opportunity to elucidate and further address the “special injury” requirement of standing. In the Matter of Sierra Club, the Court of Appeals held that the Appellate Division, in concluding that the petitioner lacked standing, applied an overly restrictive analysis of the requirement to show harm “different from that of the public at large.”. The Court of Appeals then cited United States vs Students Challenging Regulatory Agency Procedures, 412 US 669 (1970) which held “(w)e have… made it clear that standing is not to be denied simply because many people suffer the same injury… to deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread government actions could be questioned by nobody.” The Court of Appeals then stated that the harm that is alleged must be specific to the individuals who allege it and must be different in kind or degree from the public at large, but it need not be unique. The Court of Appeals further held that the number of people who are affected by the challenged action is not dispositive of standing. The Court of Appeals then stated that the standing rule should not be “heavy-handed,” and declared that it is “reluctant to apply (standing) principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review…”



Petitioner-Appellant clearly has injuries that are “real and different” from the injury most members of the public face. Petitioner is in an almost unique situation in regard to standing and the loss-both economically and environmentally are real, concrete and distinct from the public at large.



To sum up the standing argument, Petitioner clearly has injuries that are “real and different” from the injury most members of the public will face. Petitioner is in an almost unique situation as injuries received by Respondents action to ban HVHF on his properties is very particularized and very real. For all practical purposes, almost 100% of the residents and citizens of the State of New York do not own large tracts of land located in the Southern Tier of New York. The “public at large” does not have natural resources that would allow gas exploration in the Marcellus or Utica Shale plays. Respondents ban, both temporary and now permanent, clearly establishes a very serious injury upon Petitioner in that he will not be able to extract natural gas resources pursuant to HVHF. Simply, said injury is different from the “public at large.”





B. Trial Court Erred In Determining That The Cause Of Action Was Premature As Petitioner Failed To Exhaust Administrative Remedies



The trial court did not address the “futility” argument of Petitioner-Appellant to combat exhaustion of remedies argument raised by Respondent. However, the trial court held that Petitioner filed the Article 78 proceeding on May 13, 2015 but the permanent ban was not issued until June 25, 2015 and determined that the action was commenced prior to the final determination. The trial court’s assessment that the present Article 78 proceeding was premature is not accurate. On December 17, 2014 the Respondent announced the permanent ban on HVHF. Thereafter, Petitioner communicated with the Respondent on two occasions about whether or not he would be allowed to commence the permit process and/or obtain a permit to conduct HVHF on his private properties. In correspondence dated January 16, 2015 and received on January 29, 2015 from Respondent, Petitioner-Appellant was advised that there was a permanent ban. Thereafter, Appellant commenced the Article 78 proceeding within 120 days from the decision that he could not conduct HVHF on his own properties.



Pursuant to the Executive Orders issued by Governor Patterson and Governor Cuomo in 2010 and 2011 (R-114), Petitioner could not legally apply for a permit pursuant to the temporary ban and permanent ban on HVHF. Petitioner has raised the Doctrine of Futility (R- 217), which is classically represented in the facts and circumstances involving the case at bar. In any event, there are three exceptions to the exhaustion doctrine: “when the agency’s action is challenged as unconstitutional, resort to an administrative remedy would be futile or pursuit of the administrative remedy would cause irreparable injury.” See Matter of Connerton vs Ryan, 86 AD3d 693 (3rd Dept 2011), see also Watergate II Apartments, 46 NY2d at 57. Petitioner clearly submits that trying to seek any further administrative remedy in attempting to obtain a permit for HVHF would be futile and cause irreparable injury. Additionally, Petitioner clearly raised that the exhaustion of remedies is not required, in the case at bar, as it is submitted that there was a violation of the New York State and United States Constitution-Fifth Amendment in the “takings clause” as set forth in the Reply (R- 218 to 221) and Surrebuttal. (R-250 to 253).



As repeatedly stated, Petitioner-Appellant could not have legally applied for a permit pursuant to the temporary ban and permanent ban on HVHF. Respondents (R-114) admitted that the actions of applying for a permit and receiving a permit were prohibited, as stated herein, pursuant to the Executive Orders issued by the Governors. Respondents’ employees in the Division of Mineral Resources were not allowed to review or issue a permit for HVHF for a number of year



Further, Respondents acknowledge that the permit process is a “technically complex” permit process that is expensive. However, Respondent states that Petitioner-Appellant should have gone through the “technically complex” permit application process even though Petitioner was not going to be granted a permit to conduct HVHF. Petitioner submits that it would be an “irreparable injury” to spend vast sums of money in a charade for a permit knowing that a permit would not be granted for HVHF.



Finally, Respondents assert that Petitioner-Appellant’s failure to exhaust administrative remedies (not apply for a permit) has deprived the DEC of the opportunity to exercise its judgment and expertise in denying the permit/application. Respondents submits that it had “no judgment” to analyze the facts and circumstances in granting or denying a permit to conduct HVHF. Again, it is disingenuous for the Respondents to even make that statement when the Respondents, using its “judgment” or not, could not under any conceivable analysis issue a permit for HVHF or even entertain the permit application as there was a ban initiated by the Executive Branch of the State of New York.



C. Trial Court Erred That Petitioner Has No Constitutional Claims



The trial court acknowledged Petitioner-Appellant’s argument that Respondents’ decision to ban HVHF constituted a “taking” because it denied Petitioner of economically viable use of his land as an exception to the exhaustion doctrine. The trial court then stated that Petitioner’s ability to extract gas establishes that the properties are economically viable-not just the way Petitioner desires. (R-16).



Most respectfully, the hereinstated determination by the trial court established it had limited knowledge in regard to oil and gas exploration. As stated in the Rebuttal (R- 170 to 235 )and Surrebuttal (R-242), conventional fracked wells are not a viable means of extraction of natural resources involving gas. The oil and gas industry will not economically invest their resources to do conventional fracking. Technology has changed over the years where unconventional drilling by HVHF is the only accepted practice. It is not economically, or even environmentally, feasible to use conventional drilling on Appellant’s properties. Pursuant to industry standards, technology, research and geology, Petitioner has lost his ability to extract his natural resources from his properties. Industry standards at this time will only use unconventional fracking (HVHF). In other words, for any oil and gas exploration to occur on Petitioner’s properties, it will only be conducted by unconventional (HVHF) gas drilling. Therefore, Petitioner is either going to have unconventional drilling on his property or no drilling on his property. The permanent ban on HVHF has absolutely, unconditionally and clearly established that there would be no gas exploration on said properties.



That Petitioner submits that there is a clear and absolute takings in violation of the United States Constitution and the New York State Constitution. This is not a situation of a “mere diminuation” in the value of the property in demonstrating a taking. Either HVHF unconventional drilling will be used to extract the gas resources or there will be no extraction of gas resources. The industry will not conduct conventional drilling as it is not economically or environmentally feasible. Therefore, not in an abstract analysis, but in a real consequence of the ban on HVHF- Petitioner will not be able to extract his natural resources. That continuing, Respondents allege that there are potential uses to which Petitioner may put the surface of his land into use. The surface land use on the properties in question would only be forestry related, grazing lands or small acreage for crop production. Petitioner has extensive experience in forestry. It could take potentially 15 to 20 more years before the property is able to support a commercial sale of timber. In the meantime, there is no value on the vast majority of lands subject to this legal proceeding. The rental of crop land ranges from $25 to $65 per acre on a small portion of the lands. The profits derived from the hereinstated are meaningless and inconsequential especially compared to extraction of natural gas resources.



The potential resources or economic viability is meaningless and worthless compared to assets that could be derived from natural gas exploration.



Petitioner and his family own the mineral rights on the real properties (R- ) stated herein. The Petitioner and his family have an absolute right, as owners, to exploit, mine and/or produce any or all the minerals lying below the surface of said properties. Petitioner and his family not only have the right to extract said resources but also can convey their interests in said economic assets. The Petitioner and family have the absolute right to the following:


The right to use as much of the surface as is reasonably necessary to access the minerals on their property;
The right to further convey these mineral rights;
The right to receive economic consideration from conveying said rights;
The right to receive rentals; and
The right to receive royalties.



Petitioner may separately convey any or all of the above listed interests. The Petitioner and his family have viable economic interest in the minerals under the surface of their properties. The Respondent’s ban on HVHF has severely and unnecessarily caused serious economic hardships upon the Petitioner in the development and exploration of, in particular, the natural gas in the Marcellus and Utica Shale plays. The ban on HVHF has systematically denied the Petitioner the right for gas exploration. It is not economically feasible and a severe economic hardship will be placed on Petitioner to conduct conventional drill sites when HVHF technology would extract the natural gas in a more efficient and economic way. The ban by Respondent has taken Petitioner’s right in violation of the 5th and 14th Amendments of the United States Constitution to conduct exploration on said properties.



In 1922, the first real case of any significance in interpreting the “Takings Clause” of the 5th Amendment, the United States Supreme Court decided Pennsylvania Coal vs. Mahon, 260 US 393 (1922). This case involved a regulation enacted by the Pennsylvania legislation to prohibit mining of coal under streets, houses and places of public assembly. The Coal Company held mineral rights in Northeast Pennsylvania and had sold the surface rights to others. The Coal Company argued that a “taking” had occurred under these regulations because it was unable to mine the coal. The United States Supreme Court agreed and said that, while property may be regulated, if the regulation goes “too far”, it constitutes a compensational taking. Though no compensation was ordered in that case, the Pennsylvania law was deemed invalid and the Coal Company was able to extract and use their mineral rights. The analysis of the Court was pursuant to a Due Process violation. The facts of this case are similar to the case at bar. Simply, the actions of Respondent has barred Petitioner the right to extract his natural resources.



Restrictive governmental land use regulation that denies the property owner of economically viable use of their land- is deemed a “taking” of the affected property. See Lucas vs. South Carolina Coastal Council, 505 US 1003 (1992); First English Evangelical Lutheran Church vs. County of Los Angeles (1987). In Agins vs. City of Tiburon, 447 US 25 (1980) the Supreme Court held that the application of land use regulations to a particular piece of property is a “taking” only “if the ordinance does not substantially advance legitimate State interest . . . or denies an owner economically viable use of his/her land”. However, in Lingle vs. Chevron, 544 US 528 (2005), the Supreme Court overruled the “substantially advanced” criterion of a “taking”. When a government regulation affects a “taking” of private property by such excessive regulation, the owner may initiate inverse condemnation proceedings to recover the just compensation for the taking of his or her property. In this context, it is the property owner who sues the Government, alleging the “taking” of property without just compensation. See San Diego Gas and Electric Company vs. City of San Diego, 450 US 621 (1981); United States vs. Clark, 445 US 253 (1980); and Agins supra.



The Petitioner, in its Amended Petition, specifically alleged that the Respondent’s ban on HVHF is a violation of his constitutional rights to Due Process under the United States Constitution and New York State Constitution (R- ). The Petitioner has been denied his constitutional rights, as there is a severe negative economical impact placed on Petitioner because of the ban.



In Goldblatt vs. Hempstead, 369 US 590 (1962) the Supreme Court held that a government’s failure to pay for any losses approximately caused by it depends largely upon the particular circumstances of each individual case. The facts to analyze are the following:


The economic impact of the regulation on the Petitioner;
The extent to which the regulation has interfered with distinct investment expectations; and
The character of the government actions.







Petitioner-Appellant submits that pursuant to the above analysis, there is a clear and absolute “taking” under the United States Constitution and New York State Constitution.



POINT III





THE NEW YORK STATE SUPREME COURT-APPELLATE DIVISION THIRD DEPARTMENT SHOULD REMAND THIS CASE BACK TO A TRAINED JUDGE TO PRESIDE OVER HVHF CASES



The National Judicial College, a number of years ago, established the “Dividing the Waters” program to educate and train judges, special masters and referees who preside over complex water litigation. In this program, the National Judicial College assisted judicial officers adjudicating complex water cases by improving judicial understanding of the complexities of water law, management and adjudication. The education topics included water law and management, science and technology and effective case management.



In 2012, based on the “Dividing the Waters” program, the National Judicial College invited judges in the States of New York, Pennsylvania, Ohio and West Virginia to attend a HVHF training program in Pittsburgh, Pennsylvania. This program covered the basic mechanical aspects of HVHF on the Marcellus Shale play and regulations.



The New York State Judicial Institute, through the New York State Office of Court Administration, sponsored at least four (4) New York State Supreme Court Justices to participate in the HVHF program that was held in November 2012.



The specific purpose of the training was to educate judges about the complex intricacies of oil and gas exploration using HVHF technology. The National Judicial College devised this program so that judges would have a better understanding of state and federal law, science and technology in addressing complex litigation involving HVHF.



Neither the New York State Office of Court Administration nor the New York State Judicial Institute would acknowledge this educational training program as it was “private” and for “judges only.” The information derived in Point III was obtained directly from the administrators at the National Judicial College who devised these training programs and the District Administrative Judge of the New York State Eighth Judicial District. Correspondence relative to the hereinstated has not been included as this issue was not developed on the Record. Upon demand, Petitioner-Appellant will forward correspondence to the Court.





It is most respectfully requested that the Court remand this proceeding back to a New York State Supreme Court Justice who attended the hereinstated program (or subsequent programs) involving HVHF. Further, Petitioner-Appellant respectfully submits it is necessary to remand this case back to another Supreme Court Justice pursuant to the below stated arguments.



POINT IV



THE COURT SHOULD REMAND THIS CASE BACK TO ANOTHER JUDGE OTHER THAN THE TRIAL COURT FOR THE BELOW-STATED REASONS





A. The New York State Supreme Court-Appellate Division Third Department Should Remand This Case Back to Another Judge or Justice As The Trial Court Has Already Stated In Its Final Decision/Order/Judgment That Petitioner’s Cause of Action Is Meritless and Baseless



The trial court in its final Decision/Order/Judgment, stated that it “would not address exhaustion of remedies,” as Petitioner’s arguments were “academic because of the lack of standing was fatal.” However, the trial court then addressed two (2) points involving exhaustion of remedies and the constitutional “takings” involving Petitioner’s ability to extract natural gas. Involving both issues, the trial court basically determined that Petitioners’ argument were baseless and meritless. It is most respectfully submitted that the Court should not remand this case back to the trial court as said court has preconceived and prejudicial presumptions that Petitioner-Appellant will never be able to overcome. The burden upon Petitioner will be insurmountable to overcome the views, opinions, positions and determinations of the trial court as set forth in the final Decision/Order/Judgment.



Accordingly, as set forth in Point III stated above, this case should be remanded to a Supreme Court Justice that has attended the National Judicial College HVHF training program. Upon information and belief, there are two (2) Justices in the 8th Judicial District who participated in said program.



B. Trial Court Erred In Not Allowing Petitioner Opportunity For Oral Argument On The Motion To Dismiss



Petitioner-Appellant was never given the opportunity to appear before the trial court for oral argument though requested. Appellant acknowledges that there is no statutory or common law rule that demands that a litigant have the opportunity to personally appear before the trial court. Oral argument would have been an opportunity for Petitioner-Appellant to defend his theory of the case and engage the trial court in a conversation about key legal and factual issues.



This exchange would allow a more complete development of the issues and the impact a particular outcome will have upon the litigants. The trial court would also be in the position to test the boundaries of a party’s position. The back and forth method of communication would allow an opportunity for the trial court to meet face to face with both counsel prior to rendering a decision. Oral argument would have given Petitioner-Appellant the opportunity to attempt to assuage any doubt and direct the trial court towards the dipositive issues and facts of the case.



Additionally, while oral argument can never replace the written responses or briefs, it serves the crucial role of providing an opportunity to influence the court’s opinions as to the particular facts and circumstances involving the Motion to Dismiss. Respectfully submitted, the job of a trial court is not merely one of an umpire in disputes between litigants. The trial court’s (and attorneys’) job is to search out the truth, both as to the facts and the law. In that joint effort, the ability to appear before the trial court for oral argument on the Motion to Dismiss would have given an opportunity for interchange between the trial court and litigants which written motions, responses, replies and surrebuttals do not give.



It is most respectfully submitted that the trial court’s position that Petitioner-Appellant’s not be allowed oral argument on the Motion to Dismiss was another example establishing that the trial court felt that the entire case initiated by Petitioner was frivolous, meritless, and baseless.. For the hereinstated reasons, as well as issues raised in Points III and IV, this case should be remanded back to another Supreme Court Justice.










CONCLUSION



For the foregoing reasons, David R. Morabito respectfully submits that the final Decision/Order/Judgment of the trial court should be reversed, the Amended Petition reinstated in its entirety, and that the legal proceedings be remanded to New York State Supreme Justice who has been trained to handle high volume hydrofracking cases and granting such other and further relief as this Court may deem proper.



Dated: April 14, 2016

East Rochester, NY

chasgas
chasgas
 
Posts: 3538
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Re: Takings????

Postby chasgas » Fri Apr 21, 2017 6:16 am

ALBANY - Gov. Andrew Cuomo and his top commissioners braced for lawsuits when they announced plans to ban large-scale hydraulic fracturing in late 2014.

They weren't alone: Advocates on both sides of the years-long debate over natural gas drilling in the Marcellus Shale had assumed it would be the courts -- not the governor -- that ultimately decided fracking's fate in the Empire State.

So far, they've been wrong.

► NY makes fracking ban official

► E. Rochester lawyer challenges NY fracking ban

► Fracking ban changes NY lives

As of Thursday, only one lawsuit challenging the fracking ban had been filed in the two years since Cuomo and his top commissioners officially put the ban in place.

And that suit -- filed by East Rochester attorney David Morabito -- was dealt a blow last week when a mid-level appeals court dismissed it, ruling Morabito didn't have proper standing to sue.

The lack of litigation has been a surprise to those who spent years closely following New York's highly contentious fracking debate, including Walter Hang, an Ithaca-based environmentalist who helped organize opposition to fracking in the Southern Tier.

"Absolutely, I thought there was going to be litigation," said Hang, who owns an environmental database firm. "It just never happened."

Heated battle

Major natural gas companies began targeting areas of the Southern Tier in late 2007, aided by advances in fracking technology that made it possible to tap into tight, underground formations like the Marcellus Shale, which covers a wide swath of upstate.

It set off a heated battle between Southern Tier landowners -- many of whom were reeling from years of economic decline -- and anti-fracking advocates, who warned of the potential for damage to the state's land, water and air.

Cuomo's health and environmental conservation commissioners recommended banning high-volume fracking in December 2014, putting an end to the six-year review process that spanned two governors, countless hearings and raucous protests at the state Capitol and beyond.

The ban was officially put into place the following June.

Since then, the gas industry has declined to challenge New York's ban, instead focusing its drilling efforts in Pennsylvania and other states where fracking is allowed and even welcomed.

Previous efforts by the industry and landowners to fight fracking bans at the local-government level were unsuccessful, with the Court of Appeals -- New York's top court -- ruling against them.

Karen Moreau, executive director of API New York, the state chapter of the major gas-industry trade group, said the litigation route is "fraught with challenges."

"The companies that we represent generally are looking to develop where the states are receptive," Moreau said Thursday. "Many of those companies made business decisions at the time to continue developing elsewhere."

Hang said the lack of a challenge from the gas industry is a testament to the strength of the anti-fracking movement.

"I think that the pressure on the governor to prohibit shale fracking was so intense that the people who would normally take legal action have been deterred because they realize it's just an incredible fight," he said.

Only suit

Morabito, meanwhile, first filed his lawsuit in May 2015.

The attorney, who owns land in Allegany County, argued that the state's fracking ban is "arbitrary and capricious" because various drafts of the state’s extensive review of fracking have concluded it’s a “viable and acceptable” method for capturing natural gas.

But a state Supreme Court judge tossed Morabito's suit last year, claiming he didn't have standing to sue because he hadn't officially applied for a drilling permit.

Last week, the Appellate Division of the Supreme Court agreed, unanimously upholding the lower court ruling.

Morabito said Thursday he intends to continue his lawsuit. But he will need help from the Court of Appeals.

Since the Appellate Division ruling was unanimous, he will have to seek the Court of Appeals' permission to appeal to the state's top court. Morabito says he intends to do so, and if that doesn't work, he intends to move on to the federal courts.

Morabito expressed frustration with API, questioning why the trade group didn't latch on to his lawsuit. He is representing himself.

"I was offended that API did not intercede on my behalf," Morabito said. "They have the legal ability, they have the knowledge, they have the capability."

Still, Morabito says he plans to exhaust his legal options.

"The ability to conduct high-volume hydofracking on landowner’s private properties will bring economic prosperity to the residents of upstate New York and create enormous tax revenues for the Empire State," he said.

chasgas
chasgas
 
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Re: Takings????

Postby chasgas » Thu May 25, 2017 10:29 am

HERE'S THE LATEST UPDATE:


Dear Chas,

Attached is the motion that was filed in the Court of Appeals and returnable on May 30, 2017. If the Court denies the application then I have exhausted all New York State remedies and can proceed in federal court. Would you pass this information on to the rest of your coalition and attorneys. I would like to address the viability of a class action lawsuit. Thank you.

David R. Morabito



XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX




COURT OF APPEALS
STATE OF NEW YORK
_______________________________________

Application of DAVID R. MORABITO

Petitioner

for a Judgment Pursuant to Article 78
of the CPLR

-against- NOTICE OF MOTION
Docket No. ____________
Docket No. 523288(Third Department)
Index No. 3265-15(NYS Sup.Ct.-Albany Co.)
JOSEPH MARTENS, Commissioner of the
The New York State Department of
Environmental Conservation and BRADLEY
J. FIELD, Director of the Division of Mineral
Resources for the New York State Department
Of Environmental Conservation,

Respondents
_______________________________________

PLEASE TAKE NOTICE that upon the annexed Affidavit of David R. Morabito, sworn to on the 20th day of April, 2017, and any other pleadings in this action, a motion will be made at the Court of Appeals Hall, Albany, NY on the 5th day of June, 2017 of that day or as soon thereafter as the Court may address the application, pursuant to §§500.21 and 500.22 of the Court of Appeals Rules of Practice, for an Order granting leave to appeal to this Court from the Order of the New York State Supreme Court Appellate Division- Third Department dated April 13, 2017, and for such other and further relief as to this Court may seem just and proper.

Dated: April 20, 2017
Yours, etc.

DAVID R. MORABITO


chasgas

i have a copy of the entire affidavit but chose not to include at this time.................
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Re: Takings????

Postby OHenry » Wed May 31, 2017 9:12 pm

Thanks Chas
Like others I have not bothered to stop by because I figured as long as Cuomatose was at the reign's, why bother? I remember the lawyer and his ball's (ability) to take up the fight. I had even lost and forgot the name of the forum. Good news; but I still won't hold my breath. If NY is good at anything, it's dragging thrir feet.
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Re: Takings????

Postby OHenry » Thu Jun 15, 2017 8:53 am

Has there been anything positive after the trial and what was it's outcome?
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Re: Takings????

Postby chasgas » Thu Jun 15, 2017 2:53 pm

http://www.courts.state.ny.us/ad3/

if you hit Decision Calendars in the red, it will announce when the decision has been handed down...

chasgas

nothing as of today. next thursday with any luck but i wouldn't bet on it...


the jlc believes the reed bill is our best bet... time will tell........................

if memory serves, it's hr510

114TH CONGRESS
1ST SESSION H. R. _____
To establish a uniform and more efficient Federal process for protecting property
owners' rights guaranteed by the fifth amendment.
_____________________________________
IN THE HOUSE OF REPRESENTATIVES
Mr. REED introduced the following bill; which was referred to the Committee
on_______________________________
_____________________________________
A BILL
To establish a uniform and more efficient Federal process for protecting property
owners' rights guaranteed by the fifth amendment.
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Defense of Property Rights Act’.
SEC. 2. FINDINGS.
The Congress finds that--
(1) the private ownership of property is essential to a free society and is
an integral part of the American tradition of liberty and limited
government;
2
(2) the framers of the United States Constitution, in order to protect
private property and liberty, devised a framework of Government
designed to diffuse power and limit Government;
(3) to further ensure the protection of private property, the fifth
amendment to the United States Constitution was ratified to prevent the
taking of private property by the Federal Government, except for public
use and with just compensation;
(4) the purpose of the takings clause of the fifth amendment of the
United States Constitution, as the Supreme Court stated in Armstrong v.
United States, 364 U.S. 40, 49 (1960), is `to bar Government from
forcing some people alone to bear public burdens, which in all fairness
and justice, should be borne by the public as a whole';
(5) the agencies, in their efforts to ameliorate public harms and
environmental abuse, have singled out property holders to shoulder the
cost that should be borne by the public, in violation of the just
compensation requirement of the takings clause of the fifth amendment
of the United States Constitution;
(6) there is a need to both restrain the agencies in their overzealous
regulation of the private sector and to protect private property, which is a
fundamental right of the American people;
(7) the incremental, fact-specific approach that courts now are required
to employ in the absence of adequate statutory language to vindicate
property rights under the fifth amendment of the United States
Constitution has been ineffective and costly and there is a need for
Congress to clarify the law and provide an effective remedy;
(8) certain provisions of sections 1346 and 1402 and chapter 91 of title
28, United States Code (commonly known as the Tucker Act), that
delineates the jurisdiction of courts hearing property rights claims,
complicates the ability of a property owner to vindicate a property
owner's right to just compensation for a governmental action that has
caused a physical or regulatory taking;
(9) current law--
(A) forces a property owner to elect between equitable relief in
the district court and monetary relief (the value of the property
taken) in the United States Court of Federal Claims;
(B) is used to urge dismissal in the district court on the ground
that the plaintiff should seek just compensation in the Court of
Federal Claims; and
(C) is used to urge dismissal in the Court of Federal Claims on the
ground that plaintiff should seek equitable relief in district court;
(10) property owners cannot fully vindicate property rights in one court;
3
(11) property owners should be able to fully recover for a taking of their
private property in one court;
(12) certain provisions of section 1346 and 1402 and chapter 91 of title
28, United States Code (commonly known as the Tucker Act) should be
amended, giving both the district courts of the United States and the
Court of Federal Claims jurisdiction to hear all claims relating to
property rights; and
(13) section 1500 of title 28, United States Code, which denies the Court
of Federal Claims jurisdiction to entertain a suit which is pending in
another court and made by the same plaintiff, should be repealed.
SEC. 3. PURPOSE.
The purpose of this Act is to--
(1) encourage, support, and promote the private ownership of property
by ensuring the constitutional and legal protection of private property by
the United States Government;
(2) establish a clear, uniform, and efficient judicial process whereby
aggrieved property owners can obtain vindication of property rights
guaranteed by the fifth amendment to the United States Constitution and
this Act;
(3) amend certain provisions of the Tucker Act, including the repeal of
section 1500 of title 28, United States Code;
(4) rectify the constitutional imbalance between the Federal Government
and the States; and
(5) require the Federal Government and States to compensate property
owners for the deprivation of property rights.
SEC. 4. DEFINITIONS.
For purposes of this Act the term--
(1) `agency' means a department, agency, independent agency, or
instrumentality of the United States or an individual State, including any
military department, Government corporation, Government-controlled
corporation, or other establishment in the executive branch of the United
States Government or an individual State;
(2) `agency action' means any action or decision taken, permanently or
temporarily, by an agency that--
(A) takes a property right; or
(B) unreasonably impedes the use of property or the exercise of
property interests or significantly interferes with investmentbacked
expectations;
4
(3) `just compensation'--
(A) means compensation equal to the full extent of a property
owner's loss, including the fair market value of the private
property taken and business losses arising from a taking, whether
the taking is by physical occupation or through regulation,
exaction, or other means; and
(B) shall include compounded interest calculated from the date of
the taking until the date the agency tenders payment;
(4) `owner' means the owner or possessor of property or rights in
property at the time the taking occurs, including when--
(A) the statute, regulation, rule, order, guideline, policy, or action
is passed or promulgated; or
(B) the permit, license, authorization, or governmental permission
is denied or suspended;
(5) `private property' or `property' means all property protected under the
fifth amendment to the Constitution of the United States, any applicable
Federal or State law, or this Act, and includes--
(A) real property, whether vested or unvested, including--
(i) estates in fee, life estates, estates for years, or otherwise;
(ii) inchoate interests in real property such as remainders
and future interests;
(iii) personalty that is affixed to or appurtenant to real
property;
(iv) easements;
(v) leaseholds;
(vi) recorded liens; and
(vii) contracts or other security interests in, or related to,
real property;
(B) the right to use water or the right to receive water, including
any recorded lines on such water right;
(C) rents, issues, and profits of land, including minerals, timber,
fodder, crops, oil and gas, coal, or geothermal energy;
(D) property rights provided by, or memorialized in, a contract,
except that such rights shall not be construed under this title to
prevent the United States from prohibiting the formation of
contracts deemed to harm the public welfare or to prevent the
execution of contracts for--
(i) national security reasons; or
(ii) exigencies that present immediate or reasonably
foreseeable threats or injuries to life or property;
(E) any interest defined as property under State law; or
5
(F) any interest understood to be property based on custom, usage,
common law, or mutually reinforcing understandings sufficiently
well-grounded in law to back a claim of interest; and
(6) `taking of private property'--
(A) means any action whereby private property is directly taken in
part or in whole as to require compensation under the fifth
amendment to the United States Constitution or under this Act,
including by physical invasion, regulation, exaction, condition, or
other means; and
(B) shall not include--
(i) a condemnation action filed by the United States in an
applicable court; or
(ii) an action filed by the United States relating to criminal
forfeiture.
SEC. 5. COMPENSATION FOR TAKEN PROPERTY.
(a) IN GENERAL- No agency, shall take private property in part or in whole
except for public purpose and with just compensation to the property owner. A
property owner shall receive just compensation if--
(1) as a consequence of a decision of any agency private property (in
part or in whole) has been physically invaded or taken without the
consent of the owner; and
(2)(A) such action does not substantially advance the stated
governmental interest to be achieved by the legislation or regulation on
which the action is based;
(B) such action exacts the owner's constitutional or otherwise lawful
right to use the property or a portion of such property as a condition for
the granting of a permit, license, variance, or any other agency action
without a rough proportionality between the stated need for the required
dedication and the impact of the proposed use of the property;
(C) such action results in the property owner being deprived, either
temporarily or permanently, of all or substantially all economically
beneficial or productive use of the property or that part of the property
affected by the action without a showing that such deprivation inheres in
the title itself;
(D) such action diminishes the fair market value of the property which is
the subject of the action by the lesser of--
(i) 20 percent or more with respect to the value immediately prior
to the governmental action; or
6
(ii) $20,000, or more with respect to the value immediately prior
to the governmental action; or
(E) under any other circumstance where a taking has occurred within the
meaning of the fifth amendment of the United States Constitution.
(b) BURDEN OF PROOF- (1) The agency shall bear the burden of proof in any
action described under--
(A) subsection (a)(2)(A), with regard to showing the nexus between the
stated governmental purpose of the governmental interest and the impact
on the proposed use of private property;
(B) subsection (a)(2)(B), with regard to showing the proportionality
between the exaction and the impact of the proposed use of the property;
and
(C) subsection (a)(2)(C), with regard to showing that such deprivation of
value inheres in the title to the property.
(2) The property owner shall have the burden of proof in any action described
under subsection (a)(2)(D), with regard to establishing the diminution of value
of property.
SEC. 6. JURISDICTION AND JUDICIAL REVIEW.
(a) IN GENERAL- A property owner may file a civil action under this Act to
challenge the validity of any agency action that adversely affects the owner's
interest in private property in either the United States District Court or the
United States Court of Federal Claims. This section constitutes express waiver
of the sovereign immunity of the United States. Notwithstanding any other
provision of law and notwithstanding the issues involved, the relief sought, or
the amount in controversy, each court shall have concurrent jurisdiction over
both claims for monetary relief and claims seeking invalidation of any Act of
Congress or any agency action defined under this Act affecting private property
rights. The plaintiff shall have the election of the court in which to file a claim
for relief.
(b) STANDING- Persons adversely affected by an agency action taken under
this Act shall have standing to challenge and seek judicial review of that action.
(c) AMENDMENTS TO TITLE 28, UNITED STATES CODE- (1) Section
1491(a) of title 28, United States Code, is amended--
(A) in paragraph (1) by amending the first sentence to read as follows:
`The United States Court of Federal Claims shall have jurisdiction to
render judgment upon any claim against an agency for monetary relief
founded either upon the Constitution or any Act of Congress or any
regulation of an executive department, or upon any express or implied
contract with an agency, in cases not sounding in tort, or for invalidation
7
of any Act of Congress or any regulation of an executive department that
adversely affects private property rights in violation of the fifth
amendment of the United States Constitution';
(B) in paragraph (2) by inserting before the first sentence the following:
`In any case within its jurisdiction, the Court of Federal Claims shall
have the power to grant injunctive and declaratory relief when
appropriate.'; and
(C) by adding at the end thereof the following new paragraphs:
`(4) In cases otherwise within its jurisdiction, the Court of Federal
Claims shall also have ancillary jurisdiction, concurrent with the courts
designated in section 1346(b) of this title, to render judgment upon any
related tort claim authorized under section 2674 of this title.
`(5) In proceedings within the jurisdiction of the Court of Federal Claims
which constitute judicial review of agency action (rather than de novo
proceedings), the provisions of section 706 of title 5 shall apply.'.
(2)(A) Section 1500 of title 28, United States Code, is repealed.
(B) The table of sections for chapter 91 of title 28, United States Code, is
amended by striking out the item relating to section 1500.
SEC. 7. STATUTE OF LIMITATIONS.
The statute of limitations for actions brought under this title shall be 6 years
from the date of the taking of property.
SEC. 8. ATTORNEYS' FEES AND COSTS.
The court, in issuing any final order in any action brought under this Act, shall
award costs of litigation (including reasonable attorney and expert witness fees)
to any prevailing plaintiff.
SEC. 9. ALTERNATIVE DISPUTE RESOLUTION.
(a) IN GENERAL- Either party to a dispute over a taking of property as
defined under this Act or litigation commenced under this Act may elect to
resolve the dispute through settlement or arbitration. In the administration of
this section--
(1) such alternative dispute resolution may only be effectuated by the
consent of all parties;
(2) arbitration procedures shall be in accordance with the alternative
dispute resolution procedures established by the American Arbitration
Association; and
8
(3) in no event shall arbitration be a condition precedent or an
administrative procedure to be exhausted before the filing of a civil
action under this Act.
(b) REVIEW OF ARBITRATION- Appeal from arbitration decisions shall be
to the United States District Court or the United States Court of Federal Claims
in the manner prescribed by law for the claim under this Act.
SEC. 10. RULES OF CONSTRUCTION.
Nothing in this Act shall be construed to interfere with the authority of any
State to create additional property rights.
SEC. 11. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the application
of such provision or amendment to any person or circumstance is held to be
unconstitutional, the remainder of this Act, the amendments made by this Act,
and the application of the provisions of such to any person or circumstance
shall not be affected thereby.
SEC. 12. EFFECTIVE DATE.
The provisions of this Act shall apply to actions commenced on or after the
date of the enactment of this Act.
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Re: Takings????

Postby eupany » Thu Jun 15, 2017 7:33 pm

Is the Reed bill going anywhere? Seems like non of the other national congressmen know anything about it? Great bill, but without support it will die just like our hopes in 2014
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Re: Takings????

Postby chasgas » Fri Jun 16, 2017 2:43 pm

i spoke with the head of the jlc about a month ago regarding david m's taking's case (the topic of this thread)...

they're watching david's suit with interest but the jlc believes the tom reed bill is where they should invest their efforts... so, no it's not dead eupany... quite the contrary...

the plans are to bring bill hr510 to the light of day in washington... pro business/pro energy folks are now in charge...

chasgas

when the deposit deal was struck, signed and paid for, i saw no reason why the rest of us landowners wouldn't follow suit... how could ny state turn down billions with a "B" i thought, coupled with the fact that the deposit folks took in 100 million dollars... well, i no longer have a clue as to what comes next in the ny oil and gas game... i find some comfort knowing the takings case and the reed bill are at the very least a couple of possibilities...
chasgas
 
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