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NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
NY Court of Appeals Motion to Accept Town of Dryden Ban Case
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NY Court of Appeals Motion to Accept Town of Dryden Ban Case

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The official motion filed with the New York State Court of Appeals, NY's highest court, to hear the case of Norse Energy v Town of Dryden over the town's vote to ban all fracking and drilling …

The official motion filed with the New York State Court of Appeals, NY's highest court, to hear the case of Norse Energy v Town of Dryden over the town's vote to ban all fracking and drilling throughout the township.

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  • 1. 1NEW YORK STATE COURT OF APPEALS_____________________________________________________________In the Matter of NORSE ENERGYCORP. USA,Petitioner-Plaintiff-Appellant,- against - Docket No.: 515227Tompkins Co. Sup. Ct.Index No.: 2011-0902TOWN OF DRYDEN et al.,Respondents-Defendants-Respondents.DRYDEN RESOURCES AWARENESSCOALITION,Proposed Intervenor-Cross-Appellant.NOTICE OF MOTION FORLEAVE TO APPEAL TO THE COURT OF APPEALSPLEASE TAKE NOTICE, that upon the Affidavit of Thomas S. West,Esq., sworn to May 31, 2013, together with a copy of (1) the Opinion andOrder of the Appellate Division, Third Department, decided and enteredMay 2, 2013, finally determining the action/proceeding, and (2) exhibitsannexed hereto, the Petitioner-Plaintiff-Appellant will move this Court atMotion Term, June 17, 2013, at 10:00 a.m., at the New York State Court ofAppeals, Court of Appeals Hall, 20 Eagle Street, Albany, NY 11207-1095,
  • 2. 2for an Order granting the Petitioner-Plaintiff-Appellant leave to appeal to theCourt of Appeals from the Opinion and Order of the Appellate Division,Third Department, decided and entered May 2, 2013, which affirmed theDecision and Order of the Supreme Court, Tompkins County (Rumsey, J.),entered on February 22, 2012, granting summary judgment to Respondentsand dismissing the Verified Petition and Complaint, and for such other andfurther relief as this Court deems just and proper.Dated: May 31, 2013_____________________________Thomas S. West, Esq.Attorney for Petitioner-Plaintiff-Appellant Norse Energy Corp. USAThe West Firm, PLLC677 Broadway, 8th FloorAlbany, NY 11207-2996Tel: (518) 641-0500Fax: (518) 615-0500Email: twest@westfirmlaw.comTO: Deborah Goldberg, Esq. Alan J. Knauf, Esq.Attorney for Respondents- Attorney for ProposedDefendants-Respondents Intervenor-Cross-AppellantEARTH JUSTICE Knauf Shaw LLP156 William Street, Suite 800 1125 Crossroads BuildingNew York, NY 10038-5326 2 State StreetRochester, NY 14614
  • 3. 3NEW YORK STATE COURT OF APPEALS_____________________________________________________________In the Matter of NORSE ENERGYCORP. USA,Petitioner-Plaintiff-Appellant,- against - Docket No.: 515227Tompkins Co. Sup. Ct.Index No.: 2011-0902TOWN OF DRYDEN et al.,Respondents-Defendants-Respondents.DRYDEN RESOURCES AWARENESSCOALITION,Proposed Intervenor-Cross-Appellant.AFFIDAVIT OF THOMAS S. WEST, ESQ.IN SUPPORT OF THE MOTIONBY PETITIONER-PLAINTIFF-APPELLANTFOR LEAVE TO APPEAL TO THE COURT OF APPEALSTHOMAS S. WEST, ESQ., being duly sworn, deposes and says asfollows in support of the Petitioner-Plaintiff-Appellant’s motion for leave toappeal to the Court of Appeals:1. I am an attorney duly admitted to practice law in all courts ofthe State of New York and the founding partner of The West Firm, PLLC,located at 677 Broadway – 8th Floor, Albany, New York.
  • 4. 42. I am the attorney for Petitioner-Plaintiff-Appellant NorseEnergy Corp. USA (“Norse”) and am fully familiar with the facts andcircumstances of this case.3. I make this Affidavit in support of Norse’s motion for leave toappeal to this Court from the Opinion and Order of the Appellate Division,Third Department, decided and entered on May 2, 2013 (Exhibit A), whichaffirmed the Decision and Order of the Supreme Court, Tompkins County(Rumsey, J.), entered on February 22, 2012 (Exhibit B), granting summaryjudgment to Respondents-Defendants-Respondents and dismissing theVerified Petition and Complaint (the “Complaint”).4. Pursuant to 22 NYCRR § 500.22(b)(6), annexed hereto andincorporated herein by this reference are the following exhibits:Exhibits DescriptionA. The Opinion and Order of the Appellate Divisionof the Supreme Court, Third Judicial Department,dated May 2, 2013, in the Matter of Norse EnergyCorp. USA v. Town of Dryden, 2013 N.Y. SlipOp. 03145 with Notice of Entry;B. The Decision and Order of the Supreme Court,Tompkins County (Rumsey, J.), dated February21, 2012;C. The Decision and Order of the Supreme CourtAppellate Division, Third Department,Substituting Norse Energy Corp. USA, datedOctober 5, 2012;
  • 5. 5D. The Decisions and Orders of the Supreme Court,Appellate Division, Third Department, GrantingAmicus Status;E. The Memorandum and Order of the AppellateDivision of the Supreme Court, Third JudicialDepartment, dated May 2, 2013 in the Matter ofCooperstown Holstein Corporation v. Town ofMiddlefield, 2013 N.Y. Slip Op. 3148; andF. Lenape Resources, Inc. v. Town of Avon.1. Pursuant to 22 NYCRR § 500.22(c), submitted herewith andincorporated herein by this reference are the following materials:a. Volumes I, II and III of the Record on Appeal;b. The Brief of Petitioner-Plaintiff-Appellant Norse EnergyCorp. USA;c. The Brief of Respondents-Defendants-RespondentsTown of Dryden and Town of Dryden Town Board;d. The Reply Brief of Petitioner-Plaintiff-Appellant NorseEnergy Corp. USA;e. The Brief of Proposed Intervenor-Cross-AppellantDryden Resources Awareness Coalition;f. The Amici Curiae Briefs submitted in Support ofPlaintiff’s Appeal:i. New York Farm Bureau;ii. American Petroleum Institute, The Chamber ofCommerce of the United States of America andIndependent Oil and Gas Association of New York;and
  • 6. 6iii. Business Council of New York State, Inc., CleanGrowth Now, National Association of RoyaltyOwners, NARO-NY and The Joint LandownersCoalition of New York, Inc.; andg. The Amici Curiae Briefs submitted in Opposition toPlaintiff’s Appeal:i. Town of Ulysses and fifty-one other municipalitiestogether with the Association of Towns of the State ofNew York, New York Conference of Mayors andNew York Planning Federation;ii. Professor Vicki Been and others;iii. Catskill Mountainkeeper and eight other national orlocal environmental groups;iv. A&E Management & Contracting, Inc., along withtwenty-six other New York businesses; andv. Assemblywoman Barbara Lifton.PROCEDURAL HISTORY5. Beginning in or around December 2006, Norse, through itspredecessors Anschutz Exploration Corporation (“Anschutz”) and AnsbroPetroleum Company, began acquiring oil and gas leases in the Town ofDryden, Tompkins County, New York (the “Town”). Record Below(“R.__”) 58, Affidavit of Pamela S. Kalstrom, sworn to September 15, 2011(“Kalstrom Aff.”), ¶¶ 6, 7. The purpose of the oil and gas leases was toexplore and develop natural gas resources underlying the leased properties.
  • 7. 7R. 58, id. ¶ 5. Norse’s predecessors-in-interest obtained gas leases coveringapproximately 22,000 acres in the Town and also invested approximately$5.1 million in the exploration and development of these oil and gas leases.R. 59, id. ¶ 11.6. Subsequently, on August 2, 2011, Respondents-Defendants-Respondents Town of Dryden and the Dryden Town Board (collectively, the“Town Board” or “Respondents”) enacted a zoning amendment whichexpressly prohibits any and all oil and gas extraction, exploration,development and related activities anywhere within the Town (the “TownProhibition”). R. 49-51, Complaint ¶¶ 12-17. Specifically, Section 2104 ofArticle XXI of the Town Prohibition prohibits all oil and gas exploration,extraction, processing and storage and support activities within thegeographical borders of the Town, thereby depriving Norse and all othermineral rights owners in the Town of their respective oil and gas estates.R. 50-51, id. ¶ 17.7. On September 16, 2011, Norse’s predecessor-in-interest(Anschutz) brought an action in the Supreme Court, Tompkins County,challenging the validity of the Town Prohibition. R. 43-45. On October 21,2011, the Town Board answered and moved for summary judgment, seekinga declaration that the Town Prohibition is valid and a judgment dismissing
  • 8. 8the Complaint. R. 89-97, 451. Anschutz opposed the motion and cross-moved for the Supreme Court to grant summary judgment in its favor,asserting that the Town Prohibition was expressly and impliedly preemptedby the Oil, Gas and Solution Mining Law (“OGSML”), EnvironmentalConservation Law (“ECL”) Article 23. R. 502, ¶¶ 6-7; R. 51-52, Complaint¶¶ 19-26 (express preemption cause of action); R. 52-53, Complaint ¶¶ 27-25 (conflict preemption cause of action); Exhibits A & B.8. Subsequently, Dryden Resources Awareness Coalition(“DRAC”), an association of Town residents and landowners, moved tointervene and defend the Town Prohibition. R. 658-59.9. On February 21, 2012, the Supreme Court (Rumsey, J.)rendered its Decision and Order (the “Decision”): (1) granting the TownBoard’s motion for summary judgment, concluding that, with the exceptionof a provision invalidating permits issued by other local or state agencies,the Town Prohibition was not preempted by the OGSML; (2) grantingamicus curiae applications of Assemblywoman Barbara Lifton and GeorgeA. Matthewson to the extent they related to matters in thisproceeding/action; and (3) denying the motion to intervene by DRAC, butgranting DRAC amicus curiae status. Exhibit B & R. 14-41.
  • 9. 910. Anschutz and DRAC timely appealed from the Decision to theAppellate Division, Third Department. R. 3, 8.11. Norse was later substituted as a party in the place and stead ofAnschutz by Order of the Appellate Division, Third Department. Exhibit C& R. 1, ¶ 2.12. In addition, several interested groups were granted permissionto file amicus curiae briefs on the appeal. See Exhibit A, 2013 N.Y. SlipOp. 03145, at 4-5 n.4 (granting amicus curiae relief to the New York FarmBureau, 2012 WL 5369074, 2012 N.Y. Slip Op. 89400[U] [3d Dep’t Nov. 1,2012]; American Petroleum Institute, Chamber of Commerce of the UnitedStates of America and Independent Oil and Gas Association of New York,2012 WL 5457280, 2012 N.Y. Slip Op. 89955[U] [3d Dep’t Nov. 2, 2012];Business Council of New York State, Inc., Clean Growth Now, NationalAssociation of Royalty Owners, NARO-NY and Joint Landowners Coalitionof New York, 2012 WL 5619548, 2012 N.Y. Slip Op. 90485[U] [3d Dep’tNov. 13, 2012]; Town of Ulysses and fifty-one other municipalities, togetherwith the Association of Towns of the State of New York, New YorkConference of Mayors and New York Planning Federation, 2012 WL5896899, 2012 N.Y. Slip Op. 91270[U] [3d Dep’t Nov. 16, 2012]; Memberof Assembly Barbara Lifton, 2012 WL 7802752, 2012 N.Y. Slip Op.
  • 10. 1095156[U] [3d Dep’t Nov. 23, 2012]; Professor Vicki Been and others, 2012WL 7802749, 2012 N.Y. Slip Op. 95153[U] [3d Dep’t Nov. 23, 2012];Catskill Mountainkeeper and eight other national or local environmentalgroups, 2012 WL 7802751, 2012 N.Y. Slip Op. 95155[U] [3d Dep’t Nov.23, 2012]; and A&E Management & Contracting, Inc., along with twenty-six other New York businesses, 2012 WL 7802750, 2012 N.Y. Slip Op.95154[U] [3d Dep’t Nov. 23, 2012].13. On May 2, 2013, the Third Department rendered its Opinionand Order (the “Appellate Decision”) affirming the Decision. Exhibit A,2013 N.Y. Slip Op. 03145. Specifically, the Third Department held that (1)the supersession clause of the OGSML, ECL § 23-0303(2), does notexpressly preempt the Town Prohibition; and (2) the OGSML does notimpliedly preempt the Town Prohibition under principles of conflictpreemption. Id., 2013 N.Y. Slip Op. 03145, at 7-15. The Third Departmentalso found that the Supreme Court did not abuse its discretion in denyingDRAC’s motion to intervene and granted DRAC amicus curiae status. Id.,2013 N.Y. Slip Op., at 5-6.14. Here, Norse seeks leave to appeal to this Court from theAppellate Decision.TIMELINESS
  • 11. 1115. This motion for leave to appeal to this Court is timely. No priormotion for leave to appeal was filed at the Appellate Division. On May 6,2013, Norse was served with the Appellate Decision sought to be appealedfrom, with notice of entry. Exhibit A. This motion was served on theRespondents on May 31, 2013, and filed with this Court on May 31, 2013,and is, therefore, timely. See Civil Practice Law and Rules (“CPLR”) §§5513(b), 5515(1), 5515(2), R 5516, R 2103(b), and 22 NYCRR §§ 500.21 &500.22.JURISDICTION16. This Court has jurisdiction of this motion and of the proposedappeal because the proceeding/action originated in the Supreme Court (seeR. 43-45, 14-41), and the Appellate Decision sought to be appealed is anorder of the Appellate Division, Third Department, which (1) finallydetermined the action/proceeding by affirming dismissal of the Complaintand (2) is not appealable as of right. See CPLR §§ 5601, 5602(a)(1)(i);Exhibit A.QUESTIONS PRESENTED FOR REVIEW17. The following questions are presented for this Court’sconsideration on this motion.Question 1:
  • 12. 12a) Is a municipal zoning ordinance that bans all oil and gasdevelopment expressly preempted by the OGSML, which directs thatit (1) “shall supersede all local laws and ordinances relating to theregulation of the oil, gas and solution mining industries,” (2) expresslylimits the “jurisdiction” of municipalities to local roads and taxation,and (3) regulates where the operator may locate its wells by directingthat well location and spacing be established by the New York StateDepartment of Environmental Conservation based upon the locationof oil and gas pools, not municipal boundaries, according to specificstatutory and regulatory requirements that are designed to meet thestatute’s policy objectives of preventing waste, promoting the greaterultimate recovery of oil and gas, and protecting the correlative rightsof “all owners” – which policies are fundamental and unique to oiland gas development and totally inconsistent with municipal bans?b) Is this Court’s precedent regarding express preemptionunder the Mined Land Reclamation Law (“MLRL”) determinative ofthe express preemption analysis under a wholly different statute – i.e.,here, the OGSML – whose language, legislative history, policies, andmeans and subject matter of regulation differ markedly from that ofthe MLRL? Stated differently, does this Court’s holding that the
  • 13. 13MLRL’s supersession language “relating to the extractive miningindustry” preempts only local regulation of the operational aspects(i.e., the “how”) of mining, but not local zoning, mandate holding thata different statute’s supersession language “relating to the regulationof the . . . industry” can never encompass “where” the activity takesplace, even if that statute explicitly regulates where the activity mayoccur and has policy objectives that are defeated by parochial zoningbans?The Appellate Decision holds that the OGSML does not expresslypreempt the Town Prohibition, and the Third Department reached that resultby, in part, relying on this Court’s preemption precedent decided under theMLRL. Exhibit A, 2013 N.Y. Slip Op. 03145, at 11-13.Question 2:Is a municipal zoning ordinance that bans all oil and gas developmentin conflict with, and thus impliedly preempted by, the OGSML whichimplements a comprehensive statewide program that regulates boththe “how” and “where” of drilling to provide for the operation anddevelopment of oil and gas properties in such a manner as to preventwaste, promote the greater ultimate recovery of oil and gas, andprotect the correlative rights of “all owners,” where, by virtue of the
  • 14. 14municipal-wide ban, there can be no drilling and no resourcerecovery, which results in the ultimate in waste (no production), andthe total emasculation of mineral owners’ correlative rights bydestroying their right to recover oil or gas from under their property?The Appellate Decision holds that the OGSML does not impliedlypreempt the Town Prohibition under conflict preemption principles. ExhibitA, 2013 N.Y. Slip Op. 03145, at 14-15. Specifically, the Third Departmentfound that municipal-wide bans on drilling “may harmoniously coexist” withthese policies and the explicit location-based directives of the OGSML.
  • 15. 15LEAVEWORTHINESS OF THE QUESTIONSPRESENTED FOR REVIEW18. The questions presented for review merit leave by this Courtbecause they are both novel and of statewide importance. See 22 NYCRR §500.22(b)(4).19. On the issue of express preemption, this Court has never beforeinterpreted the scope of supersession of local zoning ordinances under theOGSML’s express supersedure language in ECL § 23-0303(2). Thus, theissue presented is a novel question of statutory construction.20. Further underscoring the novel nature of the expresspreemption issue is the manner in which the lower courts of this State haveanalyzed it. To date, seven lower court Justices have cited this Court’sdecision in Frew Run Gravel Prods. v. Town of Carroll, 71 N.Y.2d 126(1987), in holding that the OGSML does not expressly preempt local zoningbans. Exhibit F, Lenape Resources, Inc. v. Town of Avon, Index No. 1060-2012, Decision and Order/Judgment (Sup. Ct., Livingston Cnty., Mar. 15,2013) (Wiggins, J.) (“Lenape”); Exhibit B, Anschutz Exploration Corp. v.Town of Dryden, 35 Misc. 3d 450, 459-60 (Sup. Ct., Tompkins Cnty., 2012)(Rumsey, J.); Appellate Decision (Exhibit A) and Middlefield (Peters, P.J.and Stein, Spain, and Garry, JJ.) (Exhibit E). Frew Run, however,concerned express preemption relative to a sand and gravel mine under the
  • 16. 16MLRL – a wholly different statute, involving wholly distinct language,legislative history, and policy objectives, as well as the manner and subjectmatter of regulation. That notwithstanding, beyond citing to Frew Run, twoJustices have further opined that Frew Run constrained or compelled theresult under the OGSML. See Exhibit F, Lenape at 4 (opining the view thatthe Frew Run decision is flawed, but also finding that it “compels theconclusion that local zoning ordinances, such as the Local Law at issue, donot ‘relat[e] to the regulation of the oil, gas and solution mining industrieswithin the meaning of the OGSML”); Exhibit B, Decision at 25 (stating thatFrew Run “constrained” the result in the instant case).21. The novelty of this issue, therefore, is established by the factthat this Court has never addressed whether the preemption analysis in FrewRun was intended to make sweeping changes in how preemption is analyzedin the context of local home rule authority relative to other State statutes. Inshort, if Frew Run is intended to be applied to constrain the preemptionanalysis of statutory schemes wholly distinct from the MLRL – with the endresult being a bright line rule that the statutory phrase “relating to theregulation of the . . . industry” can never encompass “where” the regulatedactivity takes place, even if the statutory scheme explicitly regulates wherethe activity may take place and is motivated by statutory objectives that are
  • 17. 17defeated by parochial zoning bans – then this Court should take up thatnovel question and definitively rule on the issue.22. Further highlighting the novelty of the issue of expresspreemption under the OGSML is the unique evolution of the OGSML andthe specific terms of art contained in this statute (including in the declarationof policy), all of which wholly distinguish the OGSML from the MLRL.See generally, R. 501-21, ¶¶ 8-37 & Exhibits cited therein; see also ECL §23-0301.23. The OGSML is the result of New York’s membership in theInterstate Oil and Gas Compact Commission (the “Commission”), a multi-state governmental agency of a group of oil and gas producing states, whosepurpose “is to conserve oil and gas by the prevention of physical waste fromany cause.” R. 503-04, ¶¶ 8-13; ECL Article 23, Title 21. The Commissionarose in a climate where lack of regulation was resulting in overproductionand the waste of oil and gas resources in producing states. R. 503, ¶ 8.These states endorsed, and Congress ratified, the Interstate Compact toresolve these issues. Id. The Interstate Compact requires each member stateto enact laws that prevent, among other things, “[t]he drilling, equipping,locating, spacing or operating of a well or wells so as to bring about physicalwaste of oil or gas or loss in the ultimate recovery thereof.” R. 503, ¶ 11;
  • 18. 18ECL § 23-2101, Article III (e). New York became a member state of theCommission and enacted the Interstate Compact in 1941 and remains amember state today. R. 504, ¶ 13. The OGSML’s precursor statute, andultimately the OGSML, were enacted in response to the requirements of theInterstate Compact. See R. 504-07, ¶¶ 13-22.24. Having been modeled on the Interstate Compact, the OGSMLcontains terms of art that are unique to the oil and gas industry, thereforedistinguishing this statutory scheme from any other, including the MLRL.These terms are reflected in, among other provisions, the declaration ofpolicy, ECL § 23-0301, which directs that development and production ofoil and gas resources are to be performed in such a manner that “will preventwaste, . . . that a greater ultimate recovery of oil and gas may be had, andthat the correlative rights of all owners and the rights of all persons includinglandowners and the general public may be fully protected . . . .” See alsoWestern Land Servs. v. Department of Envtl. Conservation, 26 A.D.3d 15,17 (3d Dep’t 2005) (recognizing critical legislative purposes of OGSMLincluding insuring maximum recovery, preventing waste and protectingcorrelative rights).25. In accord with the Interstate Compact, ECL § 23-0101[20][c]defines the oil and gas term “waste” as, inter alia, “[t]he locating, spacing,
  • 19. 19drilling, equipping, operating or producing of any oil or gas well . . . in amanner which causes or tends to cause reduction in the quantity of oil or gasultimately recoverable from a pool under prudent and proper operations.”26. The protection of the “correlative rights of all owners” also hasa very specific meaning as an oil and gas phrase of art. It means that the“owner” – “the person who has a right to drill into and produce from a pool”– is entitled to a reasonable opportunity to recover or receive the oil or gas(or the equivalent thereof) attributable to its property, regardless of wherethe well is drilled. See ECL § 23-0101(11) (defining “owner”); see alsoSylvania Corp. v. Kilborne, 28 N.Y. 427, 431 n.3 & 433 (discussingcorrelative rights under Conservation Law precursor to ECL Article 23 andstating that the doctrine of correlative rights provides for equitableapportionment among landholders of the migratory gas and oil underlyingtheir land); 6 NYCRR § 550.3(ao) (defining protection of correlative rightsto mean “that the action or regulation by the department shall afford areasonable opportunity to each person entitled thereto to recover or receivethe oil or gas beneath his tracts or the equivalent thereof without beingrequired to drill unnecessary wells or to incur other unnecessary expenses torecover or receive such oil or gas or its equivalent”).
  • 20. 2027. While the OGSML also declares, as an independent policy, thatthe rights of all landowners and the general public are to be protected, thatarticulation follows the other policies that are based upon oil and gas termsof art per the requirements of the Interstate Compact. See ECL § 23-0301.Moreover, this general welfare objective is meant to be accomplishedthrough the comprehensive scheme contained in the OGSML, which theNew York State Department of Environmental Conservation regulatesstatewide through rules, regulations, a Generic Environmental ImpactStatement, and the ongoing development of the Supplemental GenericEnvironmental Impact Statement relative to high-volume hydraulicfracturing. R. 508-11, ¶¶ 30, 33, 34, 36, 37; see also Matter of Envirogas,Inc. v. Town of Kiantone, 112 Misc. 2d 432, 434-35 (Sup. Ct., Erie Cnty.),aff’d, 89 A.D.2d 1056 (4th Dep’t 1982), lv. denied, 58 N.Y.2d 602 (1982).In any event, that the rights of landowners and the general public are to beprotected (i.e., through State controls) does not diminish the declared policythat the correlative rights of “all owners” must be protected, and not just therights of those owners located in municipalities that allow drilling (which isthe troubling result of the Appellate Decision).
  • 21. 2128. Because the policies of protecting correlative rights of allowners and preventing waste of the resource are key to the OGSML, but arenot contained in the MLRL, these two statutory schemes are wholly distinct.29. In short, the unique evolution and nature of the OGSML whollydistinguish it from the MLRL (and any other statutory scheme). Thus, withall due respect, the Third Department seemingly was misguided in relyingon MLRL preemption precedent to decide the question of expresspreemption under the OGSML. Because this Court has never addressed thescope of express preemption under ECL § 23-0303(2), or the effect (if any)of MLRL precedent on that analysis, this Court should decide this issue offirst impression.30. The implied preemption question is likewise novel. This Courthas never addressed whether a municipal-wide ban on oil and natural gasdrilling can be squared with (1) the OGSML’s explicit well location andspacing directives that depend upon the physical location of the undergroundgas “pool,” not municipal boundaries, or (2) the statute’s underlying policiesof protecting correlative rights, preventing waste, and maximizing resourcerecovery. Moreover, MLRL precedent is wholly irrelevant to this issuebecause, as already explained, the MLRL does not have the policyunderpinnings of preventing waste and protecting the correlative rights of
  • 22. 22“all owners.” Thus, the question of implied preemption under the OGSMLis also a matter of first impression, which should be decided by this Court.31. Notably, the Colorado Supreme Court, interpreting a similarstatutory scheme with the very same statutory policies as the OGSML, heldthat a municipal ban on drilling analogous to the Town Prohibitionconflicted with the policies of protecting correlative rights, preventing waste,and maximizing recovery. See Voss v. Lundvall Bros., Inc., 830 P.2d 1061,1067 (Colo. 1992). The Colorado Supreme Court thus invalidated the localban, finding it conflict preempted. Id. Significantly, the court’s reasoning isbased on the unique nature of oil and gas – namely, that because oil and gasare found in underground pools based on geology and geophysical properties(rather than municipal boundaries), wells must be properly located in orderto produce effectively, prevent waste and protect correlative rights. Id.Because municipal bans preclude proper well location and could barresource recovery altogether relative to some owners, drilling bansnecessarily conflict with these policies and are, therefore, invalid. Id.32. Specifically, the Colorado Supreme Court observed:Oil and gas are found in subterranean pools, the boundaries ofwhich do not conform to any jurisdictional pattern. As a result,certain drilling methods are necessary for the productiverecovery of these resources . . . . [I]t is often necessary to drillwells in a pattern dictated by the pressure characteristics of thepool, and because each well will only drain a portion of the
  • 23. 23pool, an irregular drilling pattern will result in less than optimalrecovery and a corresponding waste of oil and gas. Moreover,an irregular drilling pattern can impact on the correlative rightsof the owners of oil and gas interests in a common source ofsupply by exaggerating production in one area and depressing itin another. Because oil and gas production is closely tied towell location, [a municipality’s] total ban on drilling . . . couldresult in uneven and potentially wasteful production . . . . [The]total ban, in that situation, would conflict with the [stateagency’s] express authority to divide a pool of oil or gas intodrilling units and to limit the production of the pool so as toprevent waste and to protect the correlative rights of owners . .. . In our view, the state’s interest in the efficient and fairdevelopment and production of oil and gas resources in thestate, including the location and spacing of individual wells,militates against a home-rule city’s total ban on drilling withincity limits.Voss, 830 P.2d at 1067 (emphasis added); see also id., at 1067 n.3 (quotingstate law, defining “waste” in a manner identical to that in ECL § 23-0101[20][c]).33. The conflict preemption question under the OGSML, being amatter of first impression that impacts this State’s energy policy andpotentially affects every mineral rights owner in this State, should bedecided by this Court.34. Indeed, the question of whether the OGSML preempts localzoning, be it expressly or impliedly, is plainly a matter of statewideimportance, thus underscoring the leaveworthiness of the issue. At theoutset, the statewide importance of this matter is demonstrated by the large
  • 24. 24number of amici who participated below and spoke to both sides of theissue. See Exhibit D.35. Moreover, the import of this issue to landowners statewide andthis State’s energy policy is apparent. While this case relates to a municipalban in one town, the Appellate Decision effectively authorizes each andevery municipality across New York State to ban oil and gas development.In fact, to date, approximately 150 municipalities have enacted bans ormoratoria on natural gas drilling which affect thousands of acres of property.Based upon the recent decisions of the Appellate Division, ThirdDepartment, upholding the legality of such bans, more localities are almostcertain to follow suit. See http://www.fractracker.org/maps/ny-moratoria/for an updated list of those municipalities that have enacted bans ormoratoria.36. As these bans are enacted, the correlative rights of landownersand lessees are being destroyed, the objective of effective resourcedevelopment thwarted, and the ultimate in waste of New York’s oil and gasresources assured, all on a statewide basis. Taken together, the ability oflocalities to “zone out” oil and gas drilling could toll the death knell fordevelopment of this State’s indigenous resources in direct conflict with theexplicit policy objectives of the ECL (promoting recovery, preventing waste
  • 25. 25and protecting the correlative rights of “all owners”) and the express policyof the New York Energy Law. See Energy Law § 3-101(5) (declaring it tobe State policy “to foster, encourage and promote the prudent developmentand wise use of all indigenous state energy resources including, but notlimited to, on-shore oil and natural gas, off-shore oil and natural gas, naturalgas from Devonian shale formations . . . .” [L.1978, c. 396]). Aside fromthe cumulative evisceration of available leasing area resulting from the ever-increasing number of municipal bans, operators surely will be reluctant topursue development in New York if their investment can be obliterated bythe simple majority vote of a municipal board. Accordingly, given theimportance of this issue to mineral rights owners throughout the State andthe potential ramifications statewide relative to New York’s energy policy, itis respectfully submitted that the interpretative questions presented in thismotion should be decided by this Court.DISCLOSURE STATEMENT: 22 NYCRR 500.1(f)37. Plaintiff-Petitioner, Norse Energy Corp. USA is a New Yorkcorporation that is a wholly-owned subsidiary of Norse Energy Holdings,Inc., a Delaware corporation that is a wholly-owned subsidiary of NorseEnergy Corp. ASA, a publicly-traded Norwegian company. VandermarkExploration, Inc. is a New York corporation that is a wholly-owned
  • 26. 26subsidiary of Norse Energy Corp. USA. Strategic Energy Corp. andMariCo Oil and Gas Corp. are inactive companies that are affiliated withNorse Energy Corp. USA
  • 27. 27CONCLUSION38. For all of the foregoing reasons, I respectfully request that thisCourt grant Norse’s motion for leave to appeal so that this Court may decidethese novel questions of statewide importance.Dated: May 31, 2013Respectfully submitted,______________________Thomas S. WestSWORN TO BEFORE METHIS 31stDAY OF MAY 2013________________________Notary Public

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