                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 3, 2015                   520122
________________________________

COMMUNITY WATERSHEDS CLEAR
   WATER COALITION, INC.,
   et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF
   ENVIRONMENTAL CONSERVATION,
                    Respondent.
________________________________


Calendar Date:   October 13, 2015

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

                             __________


     James Bacon, New Paltz, for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Andrew B.
Ayers of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Gilpatric, J.),
entered September 10, 2014 in Ulster County, which granted
defendant's motion to dismiss the complaint.

      In June 2012, nonparty XTO Energy submitted two
applications to defendant for a permit to drill, deepen, plug
back or convert two natural gas wells located in the Town of
Sanford, Broome County. The subject wells were proposed to
produce natural gas from a geological formation known as the
Marcellus shale utilizing horizontal drilling and hydraulic
fracturing – a process commonly known as hydrofracking. In order
to obtain the requested permit, XTO was required to, among other
                              -2-                520122

things, supply defendant with a map showing the proposed spacing
units – the geographical areas assigned to each well – and
demonstrate that it controlled at least 60% of the mineral rights
contained therein (see ECL 23-0501 [2]).1 The maps tendered
depicted two proposed spacing units – denominated as "Cempa A"
and "Dew Dec Farms A." Plaintiff Community Watersheds Clear
Water Coalition, Inc. (hereinafter the Coalition) is an alliance
of individuals and organizations dedicated to, among other
things, protecting the water quality in this state, and plaintiff
Patrice VanSlyke, who is a member of the Coalition, owns
approximately 155 acres of property in a rural area of Broome
County – a portion of which overlaps with the boundaries of the
proposed spacing units. According to VanSlyke, she and her
husband are "one of the last holdouts refusing to lease [their]
property [to XTO] for oil and gas drilling," thereby potentially
making them subject to a compulsory integration order (see ECL
23-0901).

      Defendant's authority to regulate the drilling of oil and
gas production wells is set forth in ECL article 23 and, prior to
granting a well permit under ECL 23-0501, defendant must comply
with the provisions of the State Environmental Quality Review Act
(ECL art 8 [hereinafter SEQRA]). To that end, in 2011, defendant
issued a notice of proposed rulemaking and held public hearings
on a proposal to revise and amend, among other things, its oil
and gas regulations. During the course thereof, thousands of
public comments were received, including Comment 4232 (allegedly
submitted by the Coalition), which generally objected to
defendant's authorization of certain specified spacing units for
shale gas. Defendant responded, explained what it regarded as
the flaw in the Coalition's analysis and indicated that no
changes were made to the applicable section of the proposed rule
as a result thereof. Defendant ultimately did not adopt the
revised draft regulations to which Comment 4232 was directed and,
in March 2013, a notice of expiration was published in the State
Register, advising the public that the notice of proposed


    1
        The spacing requirements are designed to ensure, among
other things, that the state's oil and gas resources are utilized
in such a way as to prevent waste (see ECL 23-0301).
                              -3-                520122

rulemaking had lapsed.

      Thereafter, in November 2013 – after the aforementioned
notice had lapsed and while defendant's SEQRA review remained
ongoing – plaintiffs commenced this declaratory judgment action
against defendant, primarily contending that defendant's response
to Comment 4232 constituted an unlawful extension of the common-
law rule of capture and effectuated a trespass upon VanSlyke's
property. Defendant moved to dismiss the complaint contending,
among other things, that plaintiffs lacked standing and that the
claims asserted were not ripe for judicial review. Supreme Court
granted defendant's motion, and this appeal by plaintiffs
ensued.2

      We affirm. Assuming, without deciding, that the statewide
ban on hydrofracking does not render all of plaintiffs' claims
moot and, further, that plaintiffs each have standing to maintain
this declaratory judgment action, Supreme Court nonetheless
properly granted defendant's motion to dismiss the complaint. As
this Court recently reiterated, "[i]n order to warrant a
determination of the merits of a cause of action, the party
requesting relief must state a justiciable claim – one that is
capable of review and redress by the courts at the time it is
brought for review. A claim is justiciable, in turn, when two
requirements are met: first, that the plaintiff has an interest
sufficient to constitute standing to maintain the action and,
second, that the underlying controversy involves present, rather


    2
        During the pendency of this appeal, defendant completed
its SEQRA review, issued a detailed statement of findings
relative to the issue of hydrofracking and concluded that "there
[were] no feasible or prudent alternatives that would adequately
avoid or minimize adverse environmental impacts and that address
the scientific uncertainties and risks to public health from this
activity"; accordingly, defendant instituted a statewide ban on
hydrofracking (Findings Statement, Final Supplemental Generic
Environmental Impact Statement On The Oil, Gas and Solution
Mining Regulatory Program, http://www.dec.ny.gov/docs/materials_
minerals_pdf/findingstatehvhf62015.pdf, at 42 [NY State Dept of
Envtl Conservation, accessed Nov. 16, 2015]).
                              -4-                520122

than hypothetical, contingent or remote, prejudice to the
plaintiff" (Schulz v Cuomo, ___ AD3d ___, ___, 2015 NY Slip Op
08020, *1-2 [2015] [internal quotation marks, brackets and
citations omitted]). Again, even assuming that plaintiffs have
satisfied the standing element of this equation, the fact remains
that their entire complaint is predicated upon either (1)
defendant's allegedly improper response to a comment made by the
Coalition regarding proposed draft regulations that ultimately
were not adopted, or (2) the theoretical consequences of a well
bore or fluid fracture penetrating the subsurface of VanSlyke's
property.

      As the notice of proposed rulemaking has lapsed, any
challenge to either the proposed rules themselves or defendant's
stated position with respect thereto clearly cannot be deemed to
be a present controversy. Similarly, although plaintiffs raise
concerns regarding the potential damage to the local water supply
from either drilling or hydrofracking and VanSlyke asserts that
such actions would negatively impact the insurability,
marketability and/or future potential uses of her property, the
claims asserted by plaintiffs all presuppose, among other things,
that defendant indeed will grant XTO a drilling permit. In light
of the ban on hydrofracking, XTO may well elect not to pursue its
application at all; further, even if XTO goes forward and pursues
a permit to undertake an alternative method of drilling, that
permit may or may not be granted. Moreover, as evidenced by
defendant's submissions, there are a multitude of administrative
steps that must be successfully undertaken before such a permit
could be granted, and the failure to achieve any one of those
steps could derail the entire process. As plaintiffs' causes of
action necessarily are dependent upon future events that may
never come to pass, we find that their claims are entirely
speculative and, hence, are not justiciable (see Matter of New
York State Inspection, Sec. & Law Enforcement Empls., Dist.
Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 240 [1984];
Schulz v Cuomo, 2015 NY Slip Op 08020 at *2; Matter of New York
Blue Line Council, Inc. v Adirondack Park Agency, 86 AD3d 756,
761-762 [2011], appeal dismissed 17 NY3d 947 [2011], lv denied 18
NY3d 806 [2012]; Saratoga County Chamber of Commerce v Pataki,
275 AD2d 145, 158 [2000]). Plaintiffs' remaining arguments, to
the extent that they are properly before us, have been examined
                              -5-                  520122

and found to be lacking in merit.

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



     ORDERED that order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
