The lawsuit paperwork that will soon be filed by the Joint Landowners Coalition of New York against New York State, Gov. Andrew Cuomo, DEC Commissioner Joe Martens and State Health Commissioner Nirav Shah for illegal "takings"--that is, landowners are being intentionally denied their private property rights under the 5th Amendment of the U.S. Constitution by not being able to allow drilling for natural gas on their private property. If landowners move forward and the state continues to deny them their rights, the outcome may very well bankrupt the state in settlement payments. Cuomo has made an utter mess of this whole issue with his ongoing inability to make a decision on fracking. Very un-leader like, wouldn't you say?

1. STATE OF NEW YORK
SUPREME COURT: COUNTY OF ALBANY
_________________________________________
PLAINTIFF “A” - PLAINTIFF “E ”,
COMPLAINT/PETITION
Plaintiffs/Petitioners,
vs.
Index No.:
THE STATE OF NEW YORK, ANDREW M.
CUOMO, Governor of the State of New York,
THE NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION, JOSEPH
MARTENS, Commissioner of the New York State
Department of Environmental Conservation, THE
NEW YORK STATE DEPARTMENT OF HEALTH
and NIRAV SHAH, Commissioner of the New York
State Department of Health,
Defendants/Respondents.
_________________________________________
Plaintiffs/petitioners (“plaintiffs”), by and through their attorneys, complaining of the
defendants/respondents (“defendants”), herein state as follows:
PRELIMINARY STATEMENT
1.
Plaintiffs bring this hybrid action and proceeding to obtain monetary damages
and/or mandamus and/or injunctive relief for damages suffered by plaintiffs as a result of: 1)
defendants’ actions which have effected a “taking” of plaintiffs’ property interests thereby
depriving plaintiffs of certain property rights protected by the United States Constitution and the
Constitution of the State of New York, and 2) the enactment by defendants of a Moratorium on
the issuance of well drilling permits utilizing high volume hydraulic fracturing, a technique
commonly used throughout the country to develop thousands of natural gas wells in deep shale
formations.
1

2. 2.
The Marcellus shale formation is estimated to contain some 500 trillion cubic feet
of natural gas and covers a large area, some 54,000 square miles in the main states of New York,
Ohio, Pennsylvania and West Virginia.
3.
Beginning in 2008, natural gas drilling companies such as Fortuna Energy (now
Talisman Energy), Chesapeake Energy, Hess Corporation and Nornew, Inc. (“Nornew”) (now
known as Norse Energy Corp. USA (“Norse”)) evidenced great interest in drilling for natural gas
in the Southern Tier of New York causing an oil and gas leasing frenzy with natural gas drilling
companies paying some landowners as much as $5,000 per acre for nothing more than signing an
oil and gas lease.
4.
On July 21, 2008, The State of New York brought an end to virtually all of the
leasing activity and development when it imposed a Moratorium on the issuance of well drilling
permits utilizing high volume hydraulic fracturing (“HVHF”) that by its terms would run to some
indeterminate future time when the Department of Environmental Conservation of the State of
New York (“DEC”) issued a Supplemental Generic Environmental Impact Statement (“SGEIS”)
addressing the environmental effects of HVHF.
5.
Other states including Ohio, Pennsylvania, West Virginia, Illinois and California
which are rich in oil and gas resources completed their studies and adopted regulations and laws
pertaining to HVHF in just eight to twenty-four months and no state with oil and gas resources
has ever issued a moratorium on HVHF.
6.
Though the SGEIS process for HVHF began in New York in 2008, it has yet to be
completed and has become exclusively a political issue with no discernible end in sight. From
July 21, 2008 through today, the apparently indeterminable SGEIS process has rendered the
2

3. plaintiffs’ property and the natural gas trapped below the surface, unable to be developed and
unmarketable.
7.
HVHF is the only commercially viable method of extracting natural gas from
beneath plaintiffs’ land and without the ability to use HVHF the plaintiffs’ natural gas is
valueless.
8.
As more fully alleged herein, the conduct of defendants in imposing and
perpetuating a Moratorium on the only commercially viable method to extract natural gas from
the plaintiffs’ properties effectuates an unconstitutional taking of plaintiffs’ property interests
and, alternatively, is an invalid exercise of the police power of the State of New York.
THE PARTIES
PLAINTIFFS “A”
9.
At all times hereinafter mentioned, plaintiff ______________was and is a resident
of the County of Broome and State of New York.
10.
At all times hereinafter mentioned, plaintiff_____________ is a resident of the
State of Pennsylvania.
11.
At all times hereinafter mentioned, plaintiff ____________ is a resident of the
County of Broome and State of New York.
12.
At all times hereinafter mentioned, plaintiff ____________ is a resident of the
State of Connecticut.
13.
Plaintiffs__________________________________________________________
_________________ are hereinafter collectively referred to as the “_______ Plaintiffs”.
14.
Prior to November 2, 2012, ________ Plaintiffs were the owners in fee simple
absolute of certain real property located in the Town of Fenton, County of Broome and State of
3

4. New York, comprising approximately 70 acres, which property is more particularly described in
a deed dated ____________ and recorded in the Broome County Clerk’s office on
____________, 1997 in Book ____ of Deeds at Page ___, a copy of which is attached hereto as
Exhibit “A” (the “__________ Premises”) .
15.
By deed dated __________, 2012, ___________ conveyed 25% interest in and to
the ________ Premises to Plaintiffs ______________________.
16.
The __________Premises is landlocked and at all times relevant herein the
_________ Plaintiffs have and/or had no surface access to, or upon, the property.
17.
The highest and best use of the _________ Premises is for oil and gas
development and the property has been leased by the __________ Plaintiffs, or their
predecessor(s) in interest to various oil and gas operators over past years.
18.
On or about _______, 2007, plaintiff ____________ entered into an oil and gas
lease with Chesapeake Appalachia, LLC (“Chesapeake”), which lease was recorded in the
Broome County Clerk’s Office on ___________, 2007 at Book ____ of Deeds at Page __, a copy
of which is attached as Exhibit “B”
19.
Said lease had a five year primary term commencing on __________, 2007, with
a three year option permitting the lessee to extend the lease for an additional three year period,
which option was exercised by the lessee by the filing of a Notice of Extension of Oil and Gas
Lease by Chesapeake in the Broome County Clerk’s Office on _____, 2013 in Book ____ of
Deeds at Page ___.
20.
On or about ______, 2007, an oil and gas lease was entered into with Chesapeake,
which lease was recorded in the Broome County Clerk’s Office on ___________, 2007 at Book
____ of Deeds at Page ___, a copy of which is attached as Exhibit “C”.
4

5. 21.
Said lease had a five year primary term commencing on _________, 2007, with a
three year option permitting the lessee to extend the lease for an additional three year period,
which option was exercised by the lessee by the filing of a Notice of Extension of Oil and Gas
Lease by Chesapeake in the Broome County Clerk’s Office on ______, 2009 in Book ____ of
Deeds at Page ___.
22.
On or about ________, 2007, plaintiff __________ entered into an oil and gas
lease with Chesapeake, which lease was recorded in the Broome County Clerk’s Office on
__________, 2007 at Book ____ of Deeds at Page ___, a copy of which is attached as Exhibit
“D”.
23.
Said lease had a five year primary term commencing on __________, 2007, with
a three year option permitting the lessee to extend the lease for an additional three year period,
which option was exercised by the lessee by the filing of a Notice of Extension of Oil and Gas
Lease by Chesapeake in the Broome County Clerk’s Office on ______, 2013 in Book ____ of
Deeds at Page ___.
24.
On or about _______, 2007, an oil and gas lease was entered into with
Chesapeake, which lease was recorded in the Broome County Clerk’s Office on ____________,
2007 at Book ____ of Deeds at Page ___, a copy of which is attached as Exhibit “E”.
25.
Said lease had a five year primary term commencing on ____________, 2007,
with a three year option permitting the lessee to extend the lease for an additional three year
period, which option was exercised by the lessee by the filing of a Notice of Extension of Oil and
Gas Lease by Chesapeake in the Broome County Clerk’s Office on _____, 2013 in Book ____ of
Deeds at Page ___.
5

6. 26.
Effective ___________, 2008, a 32.5% interest in each of the aforesaid oil and
gas leases was assigned by Chesapeake to Statoilhydro USA Onshore Properties, Inc.
27.
Since the Moratorium, the _______ Plaintiffs have been unable to market,
develop or extract the natural gas from the ________ Premises.
PLAINTIFF “B”
28.
Plaintiff, ________, is a resident of the County of Steuben, State of New York.
29.
On or about 2005, plaintiff ______ acquired the oil and gas and other minerals in
property in the Town of Addison, County of Steuben, more particularly described in a deed dated
_______ and recorded in the Steuben County Clerk’s office on ________ in Book ___ of Deeds
at Page ___ , a copy of which is attached hereto as Exhibit “F” (the “_______ Premises”).
30.
Plaintiff _______ acquired the _______ Premises for the sole and exclusive
purpose of development and extraction of the oil and gas from the premises.
31.
The highest and best use of the _____ Premises is for oil and gas development.
32.
Since the Moratorium, plaintiff ____ has been unable to market, develop or
extract the natural gas from the ______ Premises.
PLAINTIFFS “C”
33.
Plaintiffs ____________, (“______”) are residents of the County of Broome,
State of New York.
34.
The _____ Family Trust (the “Trust”) is a trust formed on ___________ under
the laws of the State of New York, of which ____________ is trustee.
35.
Prior to _________, 2012, the _____ were the owners in fee simple of
approximately ______ acres in the Town of Colesville, State of New York more particularly
6

7. described in a deed dated _______ and recorded in the Broome County Clerk’s office on
________ in Book ___ of Deeds at Page ___ (the “____ Premises”).
36.
On or about _________ the _____ entered into an oil and gas lease with
Chesapeake, a copy of which is attached as Exhibit “G”, which lease had an initial five year
primary term commencing on ________, 2007 and an optional additional five year extension.
By payment and Notice of Extension of Oil and Gas Lease dated ______, 2012 and recorded in
the Broome County Clerk’s Office on ___________, 2012 in Book ____ of Deeds at Page ___,
Chesapeake extended the primary term an additional five years, to _____, 2017.
37.
_____ sole and exclusive purpose in entering into the oil and gas lease was to
market, develop and extract natural gas from the ____ Premises.
38.
Pursuant to the oil and gas lease, and with the intent to develop the ____ Premises
and extract natural gas therefrom, on or about _______, 2009, Chesapeake filed a well permit
application for six horizontal wells known as ____, ______, ______, ________, _________ and
_________, which were to be developed by using HVHF.
39.
The targeted formation was the Marcellus shale.
40.
Upon information and belief, Chesapeake filed the well permit applications in
anticipation of the release of the SGEIS and with the anticipation that permits for HVHF would
be issued shortly thereafter.
41.
The highest and best use of the _________ Premises is for oil and gas
development.
42.
By deed dated ______, 2012, and recorded in the Broome County Clerk’s Office
on ______, 2012 in Book ____ of Deeds at Page ___, the _____ conveyed all “oil and gas and
7

8. petroleum products estate, interest and rights including, without limitation, all oil gas and other
rights in, under, and that may be produced” from the ____ Premises to the ____ Family Trust.
43.
Due to the Moratorium, the well permit applications have not been granted, no
drilling has yet occurred and neither the _____ nor the Trust have received royalty payments.
PLAINTIFF “D”
44.
Plaintiff, ______ (“____”) is a resident of the County of Broome and State of
New York.
45.
On or about ______, 2008, ____ secured a line of credit encumbering certain real
property he owned and utilized as his primary residence in the sum of $175,000.
46.
____’s sole purpose in securing this line of credit was to obtain funds to purchase
vacant real property in the Broome County area exclusively for oil and gas development and, in
particular, to develop the Marcellus shale formation lying beneath the property(ies).
47.
On or about _______, 2008, ____ purchased vacant real property comprised of
approximately 22 acres located in the Town of Lisle, County of Broome and State of New York
for the sum of $37,000, which property is more particularly described in a deed recorded in the
Broome County Clerk’s office on ______, 2008 at Book ____ of Deeds at Page ___, a copy of
which is attached hereto as Exhibit “H” (the “_______ A Premises”).
48.
Almost immediately after the purchase of the ____ A Premises, plaintiff ____ was
approached by Chesapeake to lease the property and on or about ______, 2008, ____ entered
into an oil and gas lease with Chesapeake for extraction of natural gas from the ____ premises,
which lease was recorded in the Broome County Clerk’s Office on ________, 2008, at Book
____ of Deeds at Page ____.
8

9. 49.
A 32.5% interest in and to the oil and gas lease was later assigned by Chesapeake
to Statoilhydro USA Onshore Properties, Inc., which assignment was recorded in the Broome
County Clerk’s Office on_________, 2009, in Book ____ of Deeds at Page ___.
50.
On or about__________, 2009, ____ sold the ____ A Premises reserving “until
July 9, 2018, any and all mineral rights of the subject property, including, but not limited to, oil,
coal, gas and stone and [all] right and interest in a certain Oil and Gas Lease dated _____,
2008… All rights retained herein, including, but not limited to, any right to royalties and delay
rental dues, if any, will be assigned to grantees after July 9, 2018”, as more fully described in a
deed recorded in the Broome County Clerk’s Office on ________, 2009 in Book ____ of Deeds
at Page ___, a copy of which is attached as Exhibit “I”.
51.
On or about ___________, ____ entered into a contract for the purchase of two
parcels of vacant real property comprised of approximately 13.80 acres and 1.0 acres,
respectively, in the Town of Kirkwood, County of Broome and State of New York.
52.
On _________, 2008, ____ purchased the aforesaid 13.80 acre and 1.0 acre parcel
for the sum of $29,800.00, which real property is more particularly described in a deed dated
___________, 2008 and recorded in the Broome County Clerk’s office on _______, 2008 in
Book ____ of Deeds at Page ___, a copy of which is attached hereto as Exhibit “J” (the “____ B
Premises”).
53.
Though the ____ B Premises are located in the heart of the prime area of the
Marcellus Shale in New York, plaintiff ____ was offered only a nominal leasing bonus, when
property owners located just a few miles across the border in Pennsylvania were receiving
upwards of $5,000.00 per acre.
9

10. 54.
On or about ________, 2011, ____ sold the ____ B Premises reserving “all of the
oil, gas and minerals lying below the surface of the premises….. “, said deed also reciting that
“the Grantor…. shall not have any right to enter upon the surface of the Premises or to conduct
any surface operations on the Premises, including but not limited to, the construction of
pipelines, the exploration, development, production and/or removal of oil, gas or other minerals
from under the surface of the Premises", as more fully described in a deed recorded in the
Broome County Clerk’s Office on _______, 2011 in Book ____ of Deeds at Page ___.
55.
On or about ____________, ____ entered into a contract for the purchase of
certain vacant real property located in the Town of Lisle, County of Broome and State of New
York comprised of approximately 60.5 acres.
56.
On or about ______, 2009, ____ purchased the aforesaid approximate 60.5 acre
parcel for the sum of $100,000.00, which property is more particularly described in a deed
recorded in the Broome County Clerk’s office on ________, 2009 at Book ____ of Deeds at
Page ___, a copy of which is attached hereto as Exhibit “K” (the “____ C Premises”).
57.
The purchase of the ____ C Premises was subject to an existing oil and gas lease
with Ansbro Petroleum Company, which lease was dated ___________, 2007 and recorded in
the Broome County Clerk’s Office on _________, 2007 at Book ____ of Deeds at Page ___.
58.
Said lease expired without any development upon the leased premises and, to
date, plaintiff ____ has received no offers to lease ____ C Premises.
59.
On or about ______, 2013, ____ conveyed ____ C Premises excepting and
reserving “one hundred percent (100%) of Grantor’s mineral estate interest and rights, including,
without limitation; all of the oil and gas in and under and that may be produced from the … land,
and additionally excepts and reserves the right to pool, unitize and/or remove said oil and gas,
10

11. the right to execute oil, gas and other mineral leases, the right to receive any and all payments
therefrom, including without limitation, all rental, bonus and royalty payments for oil, gas and
other mineral leases, and the right to sell or otherwise dispose of said oil, gas and other
minerals…”, as more particularly described in a deed recorded in the Broome County Clerk’s
Office on ______, 2013 in Book ____ of Deeds at Page ___, a copy of which is attached as
Exhibit “L”
60.
The highest and best use of all of the aforementioned properties owned by ____ is
for oil and gas development.
61.
Since ____ has acquired the subject properties, due to the Moratorium, he has
been unable to market, develop and/or extract the oil and gas lying beneath the properties.
PLAINTIFFS “E”
62.
At all times relevant herein, plaintiff, ________ (“______”) was and is a limited
liability company organized under the laws of the State of New York with an address of
_________, Deposit, New York.
63.
At all times relevant herein, plaintiff ______________, LLC (“________”) was
and is a limited liability company organized under the laws of the State of New York with an
address of _______________, Deposit, New York.
64.
At all times relevant herein, _____________ LLC was and is a member of
_______.
65.
Prior to _________, 2007, __________ was the owner in fee simple absolute of
approximately 93.3 acres of vacant real property located in the Town of Colesville, County of
Broome and State of New York bearing tax map no.___________, which property is a portion of
the property described in a Warranty Deed recorded on ___________, 2002 in the Broome
11

12. County Clerk’s Office at Book ____ of Deeds at Page ____, a copy of which is attached as
Exhibit “M” (the “_________ Premises”).
66.
On or about _______, 2007, _______ entered into an oil and gas lease with
Nornew, a copy of which is attached as Exhibit “N” encumbering the ______ Premises which
provided for an initial five year primary term, subject to an option to extend the lease for a
second five year term.
67.
_______’s sole purpose in entering into the oil and gas lease was to market,
develop and extract natural gas in the premises and receive royalty payments therefor.
68.
On or about ________, 2008, _______ conveyed the _______ Premises,
reserving, inter alia, “the right to all surface and subsurface oil, gas and minerals … and to enter
upon the premises for the purpose of exploration for and removal of any or all oil, gas and
minerals” as more particularly described in the deed which was recorded in the Broome County
Clerk’s Office on ________, 2008, at Book _____ of Deeds at Page ___.
69.
A correction deed dated _________, 2012 and recorded in the Broome County
Clerk’s Office on _________, 2012 was executed by the same parties to the _______, 2008 deed
to reflect that _______ excepted and reserved an “undivided one-half interest in all oil, gas and
other minerals located on, in and under all of the premises… together with the right of ingress
and egress for the purpose of exploring, drilling, operating, producing or marketing oil, gas and
other minerals, and for the purpose of construction and maintenance of any pipeline necessary
for the transporting of such oil, gas and other minerals …”.
70.
_______’s sole and exclusive purpose in excepting reserving the oil and gas was
to develop and extract natural gas lying beneath the property and, in particular, from the
Marcellus shale formation.
12

13. 71.
Pursuant to the oil and gas lease, and with the intent to develop the ______
Premises and extract natural gas therefrom, on ________, 2010, Norse filed a well permit
application with the DEC.
72.
Upon information and belief, the Norse permit application was filed for a
conventional vertical well due to the existing Moratorium.
73.
Upon information and belief, Norse filed the well permit application for a vertical
well with the intent of drilling other wells using HVHF from the same well pad as soon as HVHF
was permitted in New York.
74.
The Norse permit was granted by the DEC on __________, 2010. It expired by
its terms during the Moratorium and the ______ Premises has not been developed to date.
75.
On or about December 6, 2012, Norse filed for relief under Chapter 11 of the
United States Bankruptcy Code and converted to Chapter 7 on or about October 10, 2013, which,
upon information and belief, was caused by New York’s failure to permit HVHF to extract
Marcellus shale natural gas.
76.
On or about ________, 2012, ________ acquired ownership of 100% of all of the
oil, gas and other minerals underlying the ________ Premises as is more particularly described
in a Mineral Deed recorded on ________, 2012 in the Broome County Clerk’s Office at Book
____ of Deeds at Page ___, a copy of which is attached hereto as Exhibit “O”.
77.
______ owns only the oil, gas and minerals in the _______ Premises and does not
have any rights to the surface of the property, other than those incidental to the extraction of oil
and gas.
78.
Upon information and belief, had Norse been permitted to develop the property
using HVHF, plaintiffs _______ and ______ would have realized substantial royalty payments.
13

14. 79.
The highest and best use of the property is for oil and gas development.
80.
Since the Moratorium, plaintiffs ________ and _______ have been unable to
market, develop and extract oil and gas from ________ Premises.
81.
The defendants’ Moratorium banning HVHF has rendered valueless or virtually
valueless the valuable oil and gas reserves of plaintiffs “A” through “E”, collectively referred to
herein as “plaintiffs”, and irreparably injured the plaintiffs.
THE DEFENDANTS
82.
Defendant, State of New York, is a state organized and maintained pursuant to the
New York State Constitution with its principal office located at the State Capital, Albany, New
York.
83.
Defendant, Andrew M. Cuomo, is the Governor of the State of New York.
84.
The New York State Department of Environmental Conservation is an agency of
the State of New York with its principal offices located in Albany, New York.
85.
Defendant, Joseph Martens, is the Commissioner of the New York State
Department of Environmental Conservation.
86.
The New York State Department of Health (“DOH”) is an agency of the State of
New York with its principal offices located in Albany, New York.
87.
Defendant, Nirav Shah, is the Commissioner of the New York State Department
of Health.
88.
Each individually named defendant is sued in his individual capacity and official
capacity.
14

15. 89.
Defendants State of New York, Andrew M. Cuomo, New York State Department
of Environmental Conservation, Joseph Martens, New York State Department of Health and
Nirav Shah are collectively referred to herein as “Defendants”.
OPERATIVE FACTS
90.
The DEC oversees the regulation of oil and gas drilling in the State of New York.
91.
It is the policy of the State of New York as codified at §23-0301 of the
Environmental Conservation Law to develop existing natural gas and oil resources within the
state in ways that prevent waste and provide for the greatest ultimate recovery of these valuable
resources.
92.
The New York State Environmental Quality Review Act (“SEQRA”) requires that
governmental agencies, including the DEC, consider various factors prior to approving certain
activities, such as the drilling of a natural gas well, that may have an adverse effect on the
environment.
93.
The DEC is required under SEQRA and applicable regulations to expedite
proceedings in the interest of prompt review and to minimize procedural and administrative
delay.
94.
In 1992, to streamline the well permitting process, the DEC prepared a Generic
Environmental Impact Statement (“GEIS”) applicable to the operations and impacts associated
with the drilling of an oil and gas well. After the GEIS was adopted, any subsequent application
for the drilling of a natural gas or oil well within the parameters of the GEIS could be approved
without any additional SEQRA review.
95.
When the DEC finalized the GEIS some 30 years ago, a technique known as
horizontal drilling was commonly in use in New York and was used to drill natural gas wells.
15

16. 96.
When the DEC finalized the GEIS some 30 years ago, low volume hydraulic
fracturing was also an established technology having been used in New York since the 1950's.
97.
More recently, various technological advancements, particularly in the use of
horizontal drilling combined with high volume hydraulic fracturing, have enabled economic
extraction of natural gas in previously undeveloped “tight” shale formations, such as the
Marcellus and Utica shale formations.
98.
High volume hydraulic fracturing involves the injection of water, sand and
chemicals under high pressure to create a multitude of small fractures to facilitate high volumes
of natural gas production.
99.
The combination of horizontal drilling and HVHF has been successfully utilized
to develop thousands of wells in many other states, including thousands of such wells in
Pennsylvania – many of them just a few hundred feet from the New York border.
100.
Beginning in approximately February, 2008, New York’s Southern Tier, Western
New York and Central New York, experienced a profound expansion of oil and gas leasing
activity as these areas are believed to be located in the heart of the Marcellus shale formation.
101.
In response to the heightened interest in developing deep shale formations the
legislature amended the Environmental Conservation Law of the State of New York (the “ECL”)
in 2008 to establish spacing requirements of drilling units for wells utilizing horizontal drilling
and hydraulic fracturing.
102.
Spacing refers to the size of the drilling unit that can be efficiently drained by one
well. The ECL amendments made the administrative permitting process more efficient and
eliminated many hearings before the DEC on the appropriate size of the spacing unit for a
proposed Marcellus or other deep shale well.
16

17. 103.
On July 21, 2008, now former Governor David Paterson signed into law the
amendments addressing uniform spacing requirements for well drilling using HVHF. Two days
later Governor Paterson also issued a press release ordering the DEC to initiate a formal public
process to update the 1992 GEIS to address the environmental impacts of HVHF.
104.
Governor Paterson’s directive resulted in a Moratorium which effectively shut
down the development of deep shale formations.
105.
The development of the SGEIS began with public scoping meetings in November
and December, 2008. The purpose of the scoping meetings was to allow members of the public
and interested persons to recommend topics to be covered in the SGEIS. The scoping meetings
prompted over 3,700 written comments, and following review and incorporation of these
comments the DEC released the final scope for the draft SGEIS in February, 2009.
106.
Thereafter, the draft SGEIS was released by the DEC on September 30, 2009.
Public hearings on the contents of the draft SGEIS were held in October and November, 2009.
Over 13,000 written comments were submitted through to December 31, 2009, when the public
comment period on the draft SGEIS came to a close.
107.
The DOH assisted with and contributed to the draft SGEIS.
108.
For a period of almost a year, the DEC purportedly was reviewing the comments
in an effort to complete the SGEIS. On December 13, 2010, now former Governor Paterson
issued Executive Order No. 41, directing the DEC to publish a revised draft SGEIS on or about
June 1, 2011.
109.
Executive Order No. 41 explicitly provided that no permits would be issued until
the completion of a final SGEIS, thus perpetuating the July 21, 2008 Moratorium.
17

18. 110.
Executive Order No. 41 was extended by defendant, Governor Andrew M.
Cuomo, on January 1, 2011, continuing the Moratorium.
111.
The DEC released the revised draft of the SGEIS, a month late, on July 8, 2011.
In its press release of June 30, 2011, announcing the impending release of the revised draft
SGEIS, the DEC reported that it had “engaged independent consultants to perform research,
sought further information from the gas drilling industry, considered more than 13,000 public
comments and studied other states’ regulations and experience.... Since September, 2009, DEC
staff has spent approximately 10,250 hours updating the document.”
112.
On July 1, 2011, Commissioner Martens announced the initial members of the
High-Volume Hydraulic Fracturing Advisory Panel charged with developing recommendations
to ensure DEC and other agencies are enabled to properly oversee, monitor and enforce HVHF
activities; developing recommendations to avoid and mitigate impacts to local governments and
communities; and evaluating the current fee structure and other revenue streams to fund
government oversight and infrastructure related to high-volume hydraulic fracturing. The
committee met several times between July and December of 2011, but postponed and canceled
several meetings thereafter. The panel has not met since mid-December 2011, and never issued
any recommendations.
113.
Despite this extensive review, and despite the initial scoping process, the DEC
decided to further consider the community and socioeconomic impacts of HVHF and engaged
independent consultants to research these effects.
114.
The DEC stated that the community and socioeconomic research would be
completed by July 31, 2011.
18

19. 115.
On September 7, 2011, the revised draft SGEIS was released which incorporated
the analysis of the community and the socioeconomic impacts of HVHF.
116.
On September 28, 2011 the DEC released draft regulations for HVHF (“HVHF
Regulations”) and the proposed State Pollution Discharge Elimination System General Permit
regulations for storm water discharges associated with HVHF (“SPDES Regulations”)
(collectively referred to herein as the “Regulations”). The proposed Regulations for well
construction and HVHF reflected the provisions contained in DEC’s revised draft SGEIS.
117.
Public hearings were held concurrently on the revised draft SGEIS and the
Regulations with the public comment period held open until January 11, 2012.
118.
The State Administrative Procedure Act mandates that proposed regulations be
final within one year of the last public hearing (SAPA § 202(2)(a)(ii)) giving the DEC until
November 29, 2012 to finalize the Regulations.
119.
On or about January 11, 2012, Commissioner Martens stated the DEC “is
months, but not years” away from finalizing the revised draft SGEIS.
120.
Beginning in early 2012, in order to minimize the political consequences related
to the release of the SGEIS, the Cuomo administration began pursuing a plan to limit the first
HVHF permits those communities in Broome, Chemung, Chenango, Steuben and Tioga Counties
that expressed support for the technology. In response to the Governor’s proposal, over forty (40)
towns signed resolutions expressing their support. The Governor’s plan was confirmed by a
senior DEC official as reported by New York Times reporter Danny Hakim on June 13, 2012.
121.
Governor Cuomo made numerous statements in 2012 that the final SGEIS was
imminent and that it would be completed before the end of the 2012 summer.
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20. 122.
Upon information and belief, the DEC was prepared to issue the final SGEIS soon
after Labor Day 2012.
123.
Upon information and belief, in September 2012, Defendant, Andrew M. Cuomo,
arbitrarily directed the DEC to delay the release of the SGEIS until after the election of
November 2012, a decision influenced exclusively by political concerns, unrelated to any
legitimate concerns with the SGEIS and without regard to the interests of prompt review and
minimal procedural and administrative delay.
124.
On September 17, 2012, Fredric U. Dicker reported that Cuomo administration
insiders said a final decision on the SGEIS would not be made until after the 2012 November
election.
125.
Thereafter, on September 30, 2012, more than a year following the release of the
second revised draft SGEIS, Commissioner Joseph Martens announced that he had requested
New York State Health Commissioner, Nirav Shah, to assess the impact of HVHF on public
health and declared that not until Commissioner Shah’s evaluation was completed would a
decision be rendered as to whether to permit HVHF in New York and, hence, permit
development of the Marcellus and other deep shale formations (the “Health Review”).
Commissioner Joseph Martens also announced that he had asked Commissioner Shah to create
an outside panel of experts to advise him in his Health Review.
126.
The Health Review was announced, notwithstanding that DOH had already been
actively engaged in the process at the time the initial draft SGEIS was released and not
withstanding that the DEC in early 2012 had concluded that potential health risks from air
emissions, water contamination and other possible sources would be preventable with the state’s
20

21. proposed guidelines and had determined that significant adverse human health impacts were
unlikely.
127.
In approximately November, 2012, a panel of experts was identified to facilitate
the Health Review.
128.
On November 28, 2012, after receiving and processing over 66,000 individual
public comments on the Regulations, the DEC issued a Notice of Revised Rule Making with
revisions to the Regulations. The revised Regulations were subject to a thirty (30) day public
comment period which was thereafter extended to ninety (90) days to February 27, 2013.
129.
On January 29, 2013, Bill Schwarz, a spokesman for DOH, stressed that the
outside consultants’ recommendations were part of a larger review being done by Commissioner
Shah and said in response to questions about whether the experts had made their
recommendations: “The State Health Commissioner and three external consultants are reviewing
the data and information regarding potential public health impacts included in DEC’s draft
environmental impact statement”.
130.
During sworn testimony before a Legislative Budget Hearing on January 30,
2013, Commissioner Shah testified that the vast majority of the material being reviewed for the
health assessment was available on the internet at the DEC website. During that testimony,
Commissioner Shah advised that the results of his assessment would be fully revealed within “a
few weeks”.
131.
On February 8, 2013, it was reported that the three outside experts assisting
Commissioner Shah with the Health Review had completed their work on the Health Review
more than a month earlier, a fact Commissioner Shah failed to disclose during his lengthy
testimony before lawmakers the previous week and DOH spokesman Bill Schwarz failed to
21

22. disclose in his January 29, 2013 statement. One panel expert said his review was completed two
months earlier and was in the hands of the DOH; another said she completed her last comments
on the review about six weeks earlier; and, the third said all three consultants finished their work
at the same time.
132.
On or about February 12, 2013, Governor Cuomo met with Commissioner
Martens and Commissioner Shah and authorized the release of two statements to the public: (1)
Commissioner Shah’s February 12, 2013 letter to Commissioner Martens advising him that he
needed to review three studies, two of which were by Geisinger Health Systems and University
of Pennsylvania and said “I anticipate delivering the completed Public Health Review to you
within a few weeks, along with my recommendations”, and (2) a statement dated February 12,
2013 from Commissioner Martens indicating that Commissioner Shah advised him that he
expected his review to be complete within “a few weeks” and that the DEC could issue permits
for HVHF if “the DOH Public Health Review finds that the SGEIS has adequately addressed
health concerns”.
133.
Upon information and belief, the Geisinger Health Systems and University of
Pennsylvania health studies have still not been fully funded.
134.
DEC failed to meet the February 27, 2013 deadline for completion of the
Regulations and allowed the Regulations to expire.
135.
A month later, on March 12, 2013, Commissioner Shah indicated that his review
would, again, be done “in a few weeks”.
136.
To date, Commissioner Shah has not issued a report, the SGEIS is not final, and
DEC has issued no HVHF permits.
22

23. 137.
Upon information and belief, Governor Cuomo, his administration and/or
defendants have issued a gag order preventing DEC, DOH and any New York State employee
from making any public comments about the SGEIS, the Health Review or HVHF without the
prior consent of the Cuomo administration.
138.
On March 14, 2011, the Albany Times Union reported that Taury Smith, New
York State Geologist and Director of the New York State Geological Survey of the New York
State Museum made favorable comments about HVHF stating that he has been examining the
science of hydrofracturing the shale for three years and has found no cases in which the process
has led to groundwater contamination; that several portrayals by anti-fracking groups about
underground pools being harmed because of drilling are exaggerated problems that are unrelated
to HVHF; that HVHF could help fight climate change; and that allowing HVHF in New York
would be a huge boost for New York job creation and for income and business tax revenues. The
Times Union also reported that Former DEC Commissioner Alexander “Pete” Grannis said he
agreed with Smith that the dangers of HVHF are overblown and that the DEC is on course to set
solid regulations.
139.
On March 28, 2011, the Albany Times Union reported that the New York State
Education Department would no longer allow Mr. Smith to talk to reporters or take calls related
to HVHF and that any failure to follow its internal protocol for handling media inquiries would
result in appropriate administrative action.
140.
Taury Smith has remained silent on HVHF since his comments were reported on
March 14, 2011. He left his position with New York State for a position as a private geology
consultant in January 2013.
23

24. 141.
Upon information and belief, DOH and Commissioner Shah have failed to
expedite the Health Review in the interest of prompt review and have failed to minimize
procedural and administrative delay at the direction of the Cuomo administration.
142.
Upon information and belief, DOH is ready, willing and able to issue its Health
Review, there being no valid, rational, or legally defensible reason for further delay.
143.
Upon information and belief, the DEC is ready, willing and able to issue the final
SGEIS and begin granting permits for HVHF, there being no valid, rational, or legally defensible
reason for further delay.
144.
Upon information and belief, Governor Cuomo has arbitrarily prevented DOH
from issuing its Health Review without any good faith, valid, rational, or legally defensible
reason.
145.
Upon information and belief, Governor Cuomo has arbitrarily prevented the DEC
from issuing the final SGEIS and granting permits for HVHF for reasons based exclusively on
political concerns and without any good faith, valid, rational, or legally defensible reason.
146.
In April 2013, it was reported that when asked at a political fundraiser when the
HVHF stalemate would be resolved, Governor Cuomo responded by blaming the “pro-fracking
lobby” for not doing enough to shift public opinion in favor of approval, implying that his
personal political agenda motivated his continuation of the Moratorium which is contrary to the
interests of prompt review and minimizing procedural and administrative delay.
147.
The Moratorium continues apparently interminably.
148.
Applications to the DEC for HVHF permits by plaintiffs or any operator would be
futile.
24

25. 149.
Plaintiffs are suffering and will continue to suffer irreparable harm if the
Moratorium is permitted to remain in place and plaintiffs are continually precluded from
exercising their property rights.
150.
On __________, 2013 plaintiffs made written demand upon defendants to do
what the law requires them to do; to wit, finalize the SEQRA process and issue a final SGEIS
with respect to HVHF within thirty (30) days of the demand.
151.
Defendants have failed and refused to act in compliance with plaintiffs' written
demand.
JURISDICTION AND VENUE
152.
The Court has jurisdiction to grant a declaratory judgment and further and
consequential relief pursuant to CPLR§§ 3001 and 3017(b).
153.
The Court has jurisdiction pursuant to CPLR §§ 7801 and 7803 to determine this
proceeding.
154.
The Court has jurisdiction pursuant to CPLR§ 6301 to grant injunctive relief
necessary to implement the relief requested herein.
155.
The Court has jurisdiction pursuant to common law to grant relief for a taking of
property without just compensation in violation of the New York State Constitution, Article I,
Section 7(a).
156.
The Court has jurisdiction pursuant to 42 U.S.C. §§ 1983 and 1988 to grant relief
for a taking of property without just compensation in violation of the U.S. Constitution, Fifth
Amendment, as applied to the States through the Fourteenth Amendment, and to remedy and
award damages for procedural and substantive due process violations under the U.S.
Constitution.
25

26. 157.
Venue in this Court is proper pursuant to CPLR §§ 503, 506(b), and 509.
FIRST CAUSE OF ACTION
DECLARATORY JUDGMENT - ILLEGAL AND VOID MORATORIUM
AS AGAINST ALL DEFENDANTS
158.
Plaintiffs re-allege paragraphs 1 through ____ as though fully restated.
159.
The conduct of the defendants has resulted in a perpetual Moratorium banning the
issuance of well drilling permits for HVHF on plaintiffs’ surface and subsurface property.
160.
SEQRA mandates that DEC issue a final SGEIS regarding HVHF, expedite
proceedings in the interest of prompt review, and minimize procedural and administrative delay.
161.
The DEC, as lead agency in the SEQRA process, has no authority to delegate its
decision making to another State agency, to wit, DOH.
162.
New York State enacted SEQRA to preserve and enhance the quality of the
environment and to establish a process for reviewing the impact of proposed activity on the
environment.
163.
SEQRA is not a public health review statute, and politics should never influence
the SEQRA process.
164.
The Governor is not a lead agency in the SEQRA process and the Governor has
no authority to direct or control the SEQRA process.
165.
The DEC, as lead agency in the SEQRA process, has no authority to allow the
Governor to control the process.
166.
The DEC has evaded its responsibilities under SEQRA by delegating review to
another State agency, to wit, DOH and allowing the Governor to direct and control the process of
SEQRA decision making.
26

27. 167.
Defendants have used the SEQRA process to perpetuate the Moratorium thereby
depriving plaintiffs of their valuable property rights in their gas and oil deposits.
168.
The Moratorium, in whole or in part, in both its enactment and perpetuation, is
not a valid exercise of the defendants’ powers under law, is an invalid exercise of the State’s
police powers, is arbitrary and capricious and contrary to law.
169.
There exists an actual, imminent and justiciable controversy between the parties
with respect to whether the Moratorium, in whole or in part, is unlawful, unconstitutional, an
invalid exercise of defendants’ police powers, arbitrary, capricious, irrational, and otherwise
improper.
170.
Plaintiffs should be granted a declaratory judgment that the Moratorium, in whole
or in part, is illegal, unconstitutional, and otherwise void and unenforceable.
SECOND CAUSE OF ACTION
ARTICLE 78 MANDAMUS
AS AGAINST CUOMO, DEC, MARTENS, DOH AND SHAH
171.
Plaintiffs re-allege paragraphs 1 through _____ as though fully restated.
172.
A proceeding pursuant to CPLR § 7803(1) lies to compel a body or officer to
perform a nondiscretionary duty.
173.
Defendants, Andrew M. Cuomo, DEC, Joseph Martens, DOH and Nirav Shah,
individually or collectively, are a body or officer within the meaning of CPLR Article 78.
174.
A proceeding for Article 78 mandamus relief lies to compel finalization of the
SEQRA process.
175.
SEQRA mandates that DEC issue a final SGEIS regarding HVHF in a timely
manner.
27

28. 176.
SEQRA mandates that the Governor and the DOH refrain from interfering with
and/or obstructing the DEC’s issuance of a final SGEIS.
177.
Plaintiffs do not seek a directive requiring these defendants to act with respect to
discretionary matters, but rather seek to require these defendants to perform their obligations
under SEQRA and permit issuance of a final SGEIS.
178.
This proceeding is brought to compel these defendants to perform a duty enjoined
upon them by law, that involves no discretion and that they are duty-bound to perform.
179.
There are no administrative steps available to plaintiffs to obtain the result
requested and the pursuit of administrative relief would be futile.
180.
Plaintiffs have a clear legal right to the relief sought.
181.
This proceeding is ripe for review.
THIRD CAUSE OF ACTION
N.Y. AND U.S. CONSTITUTIONS - TAKINGS CLAIM
AS AGAINST DEFENDANT THE STATE OF NEW YORK
182.
Plaintiffs re-allege paragraphs 1 through ____ as though fully restated.
183.
Plaintiffs’ right to subsurface oil and gas reserves constitutes private property
within the meaning of the New York State Constitution, Article I, Section 7(a) and the U.S.
Constitution, Fifth and Fourteenth Amendments.
184.
Plaintiffs’ property rights to subsurface oil and gas reserves are valueless unless
the Moratorium is ended and HVHF permitted.
185.
Defendants’ actions in enacting and continuing a perpetual Moratorium have
deprived plaintiffs of all economically beneficial use of their subsurface property rights.
28

29. 186.
Defendants have unconstitutionally deprived plaintiffs of their private property, in
whole or in part, have interfered with plaintiffs’ reasonable investment-backed expectations with
respect to subsurface rights, and have taken plaintiffs’ property, all without just compensation in
violation of plaintiffs’ constitutional rights.
187.
Through their actions, defendants have taken plaintiffs’ property for public use.
188.
Defendants have not provided just compensation to plaintiffs for taking plaintiffs’
property.
189.
Defendants, in taking plaintiffs’ property without just compensation, have
unconstitutionally compelled plaintiffs to bear a public burden which should be borne by the
public as a whole.
190.
Plaintiffs should be granted a declaratory judgment that defendant State of New
York has unconstitutionally deprived plaintiffs of their property rights and are entitled to an
award of monetary damages in an amount to be determined by the New York State Court of
Claims.
FOURTH CAUSE OF ACTION
VIOLATION OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS U.S. CONSTITUTION - FOURTEENTH AMENDMENT
AS AGAINST ALL DEFENDANTS
191.
Plaintiffs re-allege paragraphs 1 through ____ as though fully restated.
192.
Defendants have deprived and continue to deprive plaintiffs of due process of
law, as secured by the Fourteenth Amendment to the U.S. Constitution, by enacting and
perpetuating an unlawful Moratorium, thereby depriving plaintiffs of the use of their property.
193.
Defendants have deprived and continue to deprive plaintiffs of due process of
law, as secured by the Fourteenth Amendment to the U.S. Constitution, by enacting and
29

30. perpetuating a Moratorium that lacks a reasonable time frame for defendants’ actions to be
completed, that is without a justifiable and demonstrated need, where the burden imposed is
borne by selected individuals, including plaintiffs, rather than the public at large, where there is
no enabling legislation or stated procedure for the Moratorium, and where there is no time
certain for its expiration, all of which violate plaintiffs’ rights to due process.
194.
Unless defendants are enjoined from enforcing the Moratorium, plaintiffs will
suffer irreparable injury for which there is no adequate remedy at law.
FIFTH CAUSE OF ACTION
VIOLATION OF 42 U.S.C. §1983
AS AGAINST DEFENDANTS THE STATE OF NEW YORK AND CUOMO
195.
Plaintiffs re-allege paragraphs 1 through ____ as though fully restated.
196.
Defendants, acting under color of State law, have deprived and continue to
deprive plaintiffs of their substantive and procedural due process rights secured by the U.S.
Constitution, in violation of 42 U.S.C. §1983.
197.
Accordingly, plaintiffs are entitled to damages.
WHEREFORE, plaintiffs respectfully request that this Court grant the following relief:
(a)
A declaration that defendants’ actions constitute a Moratorium that is, in
whole or in part, illegal, unconstitutional, and otherwise, void and unenforceable;
(b)
A judgment pursuant to CPLR Article 78 compelling the DEC to finalize
the SEQRA process and issue a final SGEIS with respect to HVHF within sixty (60) days and
awarding damages incidental to the primary relief requested or show cause why such relief
should not be granted;
(c)
A permanent restraining order and preliminary and permanent injunctions,
30

31. pursuant to CPLR Article 63 restraining and enjoining defendants from enforcing the
Moratorium as against the plaintiffs and compelling defendants to finalize the SEQRA process
and issue a final SGEIS with respect to HVHF within sixty (60) days or show cause why such
relief should not be granted;
(d)
A declaration that plaintiffs are entitled to just compensation from the
defendants as a result of the taking of plaintiffs’ property in violation of the New York State and
U.S. Constitutions and an order remanding the case to the Court of Claims for a judgment
awarding monetary damages;
(e)
A declaration that the defendants’ actions, in whole or in part, violate the
plaintiffs’ rights to substantive and procedural due process of law, as protected by the Fourteenth
Amendment of the U.S. Constitution;
(f)
An award of monetary damages against the defendants pursuant to 42
U.S.C. §1983, attorneys’ fees pursuant to 42 U.S.C. §1988 and an order remanding the case to
the Court of Claims for a judgment awarding monetary damages;
(g)
An award to plaintiffs for the full costs and attorneys’ fees arising out of
(h)
Such other and further relief as this Court may deem just and proper.
this litigation;
Dated: ____, 2013
NY
31