STATE OF Naw Yom< Supmamz Coun? Cr-mmazns Q1 conmwu coumw coum-House 46 STREET - CORTLAND, NEW YORK ISO4S-2772 .Li (cov; wss-s4ao nx (sev; vss-casa PHILLIP R- RUMSEY MARK G. Mnsusn. uw cum: JUSTICE . SHERYL A. HOLIROOK, SECRETARY February 21,2012 . Paula M. Nichols Chief Court Clerk Tompkins County Supreme Courts P.O. Box 70 Ithaca, New York 14850 RE: ANSCIIUTZ EXPLORATION CORPORATION v. TOWN OF DRYDEN and TOWN OF DRYDEN TOWN BOARD Tompkins County Index No. 201 1-0902; RJI No. 201 1-0499-M Dear Ms. Nichols: - Enclosed herewith please find, for filing and entry, the Court's Decision, Order, and Judgment in regard to the above-referenced matter. HON. LIP R. RUMSEY Supreme Court Justice cc: Thomas S. West, Esq. (Sent via email: Yvonne E. Hemiessey, Esq. (Sent via email: yeh@westiirmlaw.com) Mahlon R. Perkins, Esq. (Sent via email: Alan J. Knaui] Esq. (Sent via email: aknauf@nyenvlaw.com) Amy K, Kendall, Esq. (Sent via email: akkengll George A. Mathewson, Esq. (Sent via email: gmath35@bIuefrog.com) Jordan A. Lesser, Esq. (Sent via email: At a Motion Term ofthe Supreme Court of the State of New York, held in and for the Sixth Judicial District, at the Tompkins County Courthouse, in the City of Ithaca, New York, on the day of November, - 201 1. PRESENT: HONORABLE PHILLIP R. RUMSEY JUSTICE PRESIDING. STATE OF NEW YORK SUPREME COURT COUNTY OF TOMPKINS ANSCHUTZ EXPLORATION CORPORATION, - Petitioner-Plaintiff For a udgm +1o Articles 78 and 3001 of the DEQISION, ORDER Civil Practice Law and Rules, AND JUDQMENT Index N0. 2011-0902 -against- RJI No. 2011-0499-M TOWN OF DRYDEN and TOWN OF DRYDEN TOWN - BOARD, - Respondents-Defendants APPEARANCES: - THE WEST FIRM, PLLC By: Thomas S. West, Esq. Yvonne E. Hennessey, Esq. Attomeys for Petitioner-Plaintiff] Anschutz Exploration Corp. - 677 Broadway, Floor Albany, New York 12207 I R. PERKINS, P.C. By: Mahlon R. Perkins, Esq. Attorney for Respondents-Defendants, Town of Dryden and Town of Dryden Town Board 11 South Street . P.O. Box 27 . Dryden, New York 13053 KNAUF SHAW, LLP By: Alan J. Knaui, Esq. - Attomeys for Proposed Intervenor, Dryden Resources Awareness Coalition 1.125 Crossroads Building Two State Street Rochester, New York 14614 KENDALL LAW - By: Amy K. dall, Esq. . Attomeys for Proposed Intervenor, Dryden Resources Awareness Coalition 5 Bishopgate Drive - - Rochester, New York 14614-4301 GEORGE A. MATHEWSON, ESQ. - amicus curiae, pro se P.O. Box 192 Lake George, New York 12845-0192 JORDAN A. LESSER, ESQ. Attomey for Barbara State of New York Assembly, amicus curiae 555 Legislative Office Building Albany, New York 12248-0001 PHILLIP R. RQMSEY, J. S. C. In this case of first impression, the court is asked to determine whether a local municipality may use its power. to regulate land use to prohibit exploration for, and production . of, oil and natural gas. The controversy arises from the proposed use of high-volume hydraulic fracturing (hydrofracking) to obtain natural gas from the Marcellus black shale formation which underlies the southern portion of New York State. The Town of Dryden is located in the Marcellus shale region} In effect to prohibit hydrofracking, the Dryden Zoning Ordinance was - amended on August 2, 2011 to ban all activities related to the exploration for, and production or storage of, natural gas and petroleum (the Zoning Amendment). Petitioner-plaintiff (Anschutz) owns gas leases covering approximately 22,200 acres in the Town - representing over one--third of its total area - that were obtained prior to enactment of the Zoning Amendment and has - invested approximately $5.1 million in activities within the Town.2 It commenced this hybrid CPLR article 78 proceeding I declaratory judgment action against the Town of Dryden and the Town of Dryden Town Board (collectively the Town) on September 16, 2011 seeking invalidation of the Zoning Amendment on the basis that it is preempted by the Oil, Gas and Solution Mining Law (OGSML). The Town timely answered and moved for dismissal ofthe 1 While the focus is currently on the Marcellus shale formation, hydrofracking may also be used to recover natural gas from the Utica shale formation, which underlies much of southem and western New York - including the Town of Dryden -- at depths below the Marcellus shale. 2 The facts regarding Anschutz's activity within the Town were taken from the document entitled, "Affidavit of Pamela S. Kalstrom," dated September 15, 2011, which was not executed in the marmer required of an affidavit because it contains an acknowledgment rather than the required jurat. However, it has been considered, inasmuch as the error in execution does not affect a substantial right of a party CPLR 2001; Mag; of Smith Board gf Stds. Appeals - of Cig; of 2 67 [1956]; Fg1@ Natl. Mtge. A soc. 67 Misc 2d 735 . [1971]; see also Krug Offerman, Fallon, Mahoney Cgsano, 245 603 [1997]). . -3- article 78 proceeding and for summary judgment declaring the Zoning Amendment valid. In light ofthe high degree of public interest in hydrofiacking, the court received several inquiries about the procedure for filing amicus curiae briefs. All who contacted chambers were referred to Kruger Blgombgg, 1 Misc3d 192 (2003) and were advised that, absent consent from the parties, a motion would be necessary. Motions seeking leave to file an amicus curiae brief were timely filed by George A. Mathewson, Esq. and Barbara Litton} In addition, a motion for leave to intervene was timely filed by Dryden Resources Awareness Coalition (DRAC). Prior to the return date, the court notified the parties and the non-party movants that the motions for leave to file amicus briefs and to intervene would be considered on submission. Inasmuch as the proposed intervenor would be entitled to participate in all aspects ofthe case as a party if the motion to intervene were ultimately to be granted, counsel for DRAC was permitted to participate in oral argument on the merits ofthe petition and the Town's I motions. - . 3 Two additional untimely attempts were made - only days prior to the scheduled retrun date of November 4, 2011 - to file motions for leave to submit amicus briefs. By two separate letter decisions dated November 2, 2011, the court declined to sign the proposed orders to show cause submitted (1) on November 1, 2011 by Earthjustice, on behalf of Natural Resources Defense Council, Inc., Beverly Ommegang, Theodore Gordon Flyfishers, Inc., Riverkeeper, Inc. and Catskill Mountainkeeper, and (2) on November 2, 2011 by the Town of Ulysses (g generally Hurrell-Hgng State of New York, 14 833 [2010], citing Rules of Ct of Appeals [22 500.23 [illustrating that the Court of Appeals denies untimely filed motions for leave to file amicus The Town thereafter attempted to place the brief by the Town of Ulysses before the court, notwithstanding the court's rejection of the Town of Ulysses's untimely motion, by filing a Supplemental Memorandum of Law that is substantially identical to the amicus curiae brief proposed by the Town of Ulysses. It has not been considered by the court. MOTIONS FOR LEAVE T0 AMICUS CURIAE BRIEFS 'llhe court has considered the following criteria in deciding whether to permit the tiling of amicus curiae briefs: (1) whether the applications were timely; (2) whether each application states the movant's interest in the matter and includes the proposed brief; (3) whether the parties are capable of a firll and adequate presentation of the relevant issues and, if not, whether the proposed amici could remedy this deficiency; (4) whether the proposed briefs identify law or arguments that might otherwise escape the court's consideration or would otherwise be of assistance to the court;. (5) whether consideration of the proposed amicus briefs would substantially prejudice the parties; and (6) whether the case involves questions of important public interest (g 1 Misc 3d at 198; Rules of Ct of Appeals [22 500.23[a] No one factor is dispositive. Mathewson and Lifton both filed timely motions - which indicated their interest in this proceeding/action and included their respective proposed briefs. Although the parties have very capably advanced their respective positions, there is no prejudice to them in permitting the proposed amici to be heard on this case of iirst impression involving a matter of important public interest K?rggr, 1 Misc 3d at 196, @g Colmgg Qsgr, 151 Misc 222, 223 [1934]; Matter of Allied Condominium Qigg of York, 2010 WL 7762750 [2010]). Accordingly, the motions should be granted to the extent that the movants present arguments related to the issues in controversy. On that basis, Lifton's motion for leave to file an amicus curiae brief is granted. With respect to the arguments advanced by Mathewson, both parties correctly note that Points - IV in his proposed brief are wholly rurrelated to the . -5- matters at issue in this proceeding/action;' therefore, his motion for leave to file an amicus curiae brief is granted only to the extent that the court will consider the argument raised in Point I of his brief THE MOTION TO INTERVENE DRAC identifies itself as an unincorporated association which has approximately 71 individual members who are residents or landowners in the Town of Dryden. It timely moved to intervene and submitted a proposed answer, affidavits from its president and iive additional members, and a memorandum of law. Its motion is opposed by the parties. Inasmuch, as noted below, the court has granted the Town's motion to dismiss tl1e article 78 proceeding, DRAC must show that it is entitled to intervene in the action under the more demanding standards applicable to actions set forth in CPLR article 10. party is entitled to intervene as of right only upon a showing that the representation of its interests by the parties is inadequate and that it may be bound by the judgment; both elements must be present (g CPLR l0l2[a] St. Josgph's Hpsp. Health Ctr. Dgpartment of of State of N.Y., 224 1008 [1996]; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR pp. 156 -- 157). Here, DRAC members have shown no substantial interest in the outcome of the action unique from those of any other resident or landowner in the Town of Dryden. As noted by the Town, it is the proper party to defend the Zoning Amendments which it enacted St. Josgph's Hosp, Health Ctr. The Town has met Points II and HI allege that various practices associated with hydoiiacking that might be allowed by the OGSML render it unconstitutional, while Point IV argues that the draft Supplemental Generic Enviromnental Impact Statement related to hydrofracking currently under consideration by the DEC violates the equal protection clauses of the New York and United States Constitutions. I -5- that duty by capably advancing its position Matter of Spangenberg, 41 Misc 2d 584, 588 [1963]). Moreover, DRAC's submissions do not materially add to the defense advanced by the Town (E Matter ofMag, 110 Misc 2d 346 [1981]). Accordingly, DRAC is not entitled to intervene as of right. - - With respect to permissive intervention pursuant to CPLR 1013, "[w]hile the only requirement for obtaining an order permitting intervention under this section is the existence of a common question of law or fact, the resolution of such a motion is nevertheless a matter of I discretion" (Matter of Pier Board of Review ofthe Town of Niskayg, 209 788, 789 [1994]). The factors noted above also weigh in favor of exercising the court's discretion to deny permissive intervention. Accordingly, DRAC's motion to intervene is denied} The court will, however, grant DRAC amicus curiae tatus for the purpose of considering the arguments presented in its brief Matter gf Pye-O-Matic, Inc. New York State Lig. Auth., 72 1144 [2010]; ;u_ggr_, 1 Misc 3d at 196). THE ARTICLE 78 PRQCEEDING Enactment of the Zoning Amendment was a legislative act Long Island Pine Barrens Soc., Inc. Suffolk County Legislature, 31 Misc 3d 2011 NY Slip Op [2011]; sg Matter of Town of Ng Palg Zoning Bd; of Appgs, 90 866 I - [1982]). Unlike challenges directed the procedures followed in the enactment of an ordinance, challenges to the substantive validity of a legislative act may not be maintained in an article 78 proceeding Matter gf Save ge Pine City of Albany, 70 193, 202 [1987]; In light ofthe determination that DRAC should not be permitted to intervene, the court need not consider the parties' arguments that it lacks standing. . . Matter of Frontier Ins. Co. Town Bd. of Town of Thompson, 252 928 [1998]; lang Island Pine Barrens Soc., Inc.). Inasmuch as Anschutz challenges only the substantive validity of the Zoning Amendment- and not the procedures utilized in its enactment- the Town's motion seeking judgment dismissing that part of the petition and complaint which seeks relief under CPLR article 78 must be, and hereby is, granted. THE MOTION FOR SUMMARY JUDQMENT ANALYSIS) The Marcellus shale formation extends northeast Hom Ohio and West Virginia, through into southem and central New York.? Geologists have long known that the entire formation contains vast quantities of natural gas - as much as 489 trillion cubic feet, or over 400 years supply for New York at its current level of use -- however, the depth ofthe formation and the tightness of the shale made extraction difficult and expensive; Recent enhancements to the techniques of horizontal drilling and hydr?ofi?acking have made recovery of natural gas from the Marcellus shale formation economically viable. As a result, interest in gas production through the use of hydroiiacking has, in recent years, increased dramatically throughout the Marcellus region. 6 The following information regarding hydronacking in the Marcellus Shale formation was summarized ii?om the "Marcellus Shale" webpage obtained ii?om the New York State Department of Environmental Conservation (DEC) website at (site last accessed February 21, 2012), from the U.S. Energy Information Admini tration website at in brief/about shale gas.gfm (last accessed February 21, 2012), and _ii?om the United States Environmental Protection Agency website at (last accessed February 21, 2012), of which the court takes judicial notice (see generally Matter of Albang Kirby, 36 526, 532 - 533 [1975]; Med. Ctr. Allstate Ins. Co[2009]; Serv. Sta. Inc., 28 Misc 3d [2010], 2010 NY Slip Op 51 at 3). See alg Coastal Oil Gas Cog;. Garza Enggy Tggt, 268 1, 6 - 7 [2008] [hydroiiacking in non--porous gas-bearing formations explained]). -8- . To access natural gas using these techniques, a vertical well bore is drilled to a depth just - above the target gas-bearing formation. The well bore is then extended horizontally within the gas-bearing rock for up to several thousand feet. Multiple horizontal wells may be drilled laterally from the same vertical bore. Af`ter drilling, the horizontal wells are subjected to hydrofracking by pumping fluid into the rock formation at high pressure to create fractures in the rock, thereby increasing the quantity of gas that will flow into the well. The hydrofiacking fluid consists of water to which various compormds areadded to make the process more effective, such as a propping material, or "proppant," -- like sand -- which consists of particles that will remain after the hydrofracking process is complete to hold the fractures open; a gel to carry the proppant into the fractures; a biocide to prevent the growth of bacteria that could damage well piping or plug the Eactures; and various other agents intended to ensure that the proppant - remains in place or to prevent corrosion of the pipes in the well. Many of the compounds used are toxic. Hydrofracking requires large volumes of water -- as much as one million or more I gallons for each well - most of which is recovered as waste that must be handled, transported and disposed of properly. Tanker trucks transport water to the well sites and thereafter remove waste . fluid. As many as 200 tr?uck loads may be required to supply the water necessary to hydrofrack a single well. Because hydroiracking may involve the risk of contaminating ground and surface water supplies, it has become extremely controversial. Begimring in 2009, many Town residents requested that the Town Board take action to ban hydrofracking within its jurisdiction and a I petition containing 1,594 signatures was presented to the Town Board on April 20, 2011 . - -9- . - requesting such a ban (E Affidavit of Mary Ann Sumner, sworn to October 13, 2011, 1] 2).7 The Zoning Amendment was enacted in response to those requests (seg Q., 1[1[ 2, 3, 15; Affidavit of Mahlon R. Perkins, swom to October 2011, 1[ 13) to, in relevant part, add the following new section to Article XXI ofthe Town's Zoning Ordinance: "Section 2104. Prohibited Uses. (1) Prohibition against the Exploration for or Extraction of Natural Gas and/or Petroleum. No land in the Town shall be used: to conduct any exploration for natural gas and/or petroleum; to drill any well for natural gas and/or petroleum; to transfer, store, process or treat natural gas and/or petr?oleum; or to dispose of natura1_ gas and/or petroleum exploration or production wastes; or to erect any derrick, building or other structure; or to place any machinery or equipment for any such purposes. (2) Prohibition against the Storage, Treatment and Disposal of Natural Gas and/or Petroleum Exploration and Production Materials. No land in the Town shall be used for: the storage, transfer, treatment and/or disposal of natural gas and/or petroleum exploration and production materials. (3) Prohibition against the Storage, Treatment and Disposal of Natural Gas and/or Pet1?o1eum Exploration and Production Wastes; No land in the Town shall be used for: the storage, transfer, treatment - and/or disposal of natural gas and/or petroleum exploration and production . wastes. (4) Prohibition against Natural Gas and/or Petrolerun Support Activities., No land in_ the Town shall be used for natural gas and/or petroleum support activities. 7 According to the 2010 Census, the population of the Town of Dryden was 14,435 on . April 1, 2010 (sg (site last accessed February 21, 2012). -10- - . (5) Invalidity of Permits. No permit issued by any local, state or federal agency, commission or board for a use which would violate the prohibitions of this section or of this Ordinance shall be deemed valid within the Town." Minutes of Special Town Board Meeting August'2, 2010, p. 14; see alg petition and complaint, 1[ 17; answer, 1[ Anschutz asserts two separate causes of action seeking declaratory judgment that the - Zoning Amendment is invalid - first, that it is expressly preempted by the supersedure clause of the OGSML set forth in ECL 23-03.03 and, second, that it is preempted because it impermissibly conflicts with the substantive provisions ofthe OGSML that directly regulate gas production. The OGSML contains the following express supersedure clause: "The provisions of this article shall supersede all local laws or ordinances relating to the ggulatign of the og ga and solution mining industrigs;.but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law." - (ECL 23-0303 [emphasis supplied]). This provision was last amended more than thirty years ago, long before the potential use of hydrofracking to recover natural gas from the Marcellus shale in New York could have been anticipated. Determining whether it enactment of zoning ordinances that regulate where - or whether -- operations related to gas production may occur is a matter of first impression, requiring statutory interpretation without consideration of the disparate public opinions about hydrofracking. The Court of Appeals has held that a similar The Zoning Amendment also amended Appendix A (Definitions) of the Zoning Ordinance by adding definitions for Natural Gas, Natural Gas and/or Petroleum Exploration, Natural Gas and/or Petroleum Exploration and Production Materials, Natural Gas and/or Petroleum Production Wastes, Natural Gas and/or Petroleum Extraction, and Natural Gas and/or Petroleum Support Activities (sg Minutes of Special Town Board Meeting August 2, 2010, pp. 13 -- 14). - . -1 1- I supersession clause contained in the Mined Land Reclamation Law (Environmental Conservation Law article 23, title 27; herein MLRL) did not- preempt local zoning ordinances Matter of Frew Run Gravel Prods, Town ofC@11, 71 126 [1987]). In light of the similarities between the ocsivn. and the MLRL as it existed at the time of Mattg of Frew Run, the court is constrained to follow that precedent in this case. . In Matter gf Frew Run, the Court of Appeals considered the following supersedure provision of the MLRL: "For the purposes stated herein,. this title shall supersede all other state and local . laws relating the extractive mining indusgy; provided, however, that nothing in this title shall be construed to prevent any local govermnent nom enacting local zoning ordinances or other local laws which impose stricter mined land reclamation standards or requirements than those found herein." (ECL 23-2703 as enacted by the Laws of New York, 1976, Chapter 477 [emphasis supplied]). It began its analysis by noting that where, as here, a statute contains an express supersession clause, resolution ofthe issue tums on proper construction of the clause by interpreting the plain meaning of the text in light of the relevant legislative history and the underlying purposes ofthe statute. It held that the zoning ordinance did not relate to the extractive mining industry but to an entirely different subject, land use. The Court itself later concisely summarized its holding in Matter of Frew Run as follows: "In Frew Run, we distinguished between zoning ordinances and local ordinances that directly regulate mining activities. Zoning ordinances, we noted, have the purpose of regulating land use generally. Notwithstanding the incidental effect of local land use laws upon the extractive mining industry, zoning ordinances are not the type of regulatory provision the Legislature foresaw as preempted by Mined Land Reclamation Law; the distinction i between ordinances that regulate property uses and ordinances that regulate mining activities. In rew Run, we concluded that nothing in the plain language, statutory scheme, or legislative purpose ofthe Mined Land Reclamation Law suggested that its reach 'was -12- intended to be broader than necessary to preempt conflicting regulations dealing with mining operations and reclamation of mined lands' at 133 [emphasis and that in the absence of a clear expression of legislative intent to . preempt local control over land use, the statute could not be read as preempting local zoning authority." (Matter of Gematt Asphalt Prods. Town of Sardinia, 87 668 681 - 682 [1996] [citations omitted; emphasis in original]; see also Matter of Hunt Bros, Qlennon, 81 906, 908 - 909 [1993]; Preble Town of Preble, 263 849, 850 [1999], lv denied 94 760 [2000]; Matter of Sour Mtn. Realgg New York State Dept. gf Envtl. Conservation, 260 920, 923 - 924 [1999], lv ~n10d 93 815 The primary language of the two supersedure clauses is nearly identical. The MLRL provides that "[f]or the pnuposes stated herein, this title shall supersede all other stateiand local laws relating to the extractive mining indusgy"(emphasis supplied), while the OGSML provides provisions of this article shall supersede all local laws or ordinances glating to the ggulation of the oil, gas and solution mining industries (emphasis supplied). lnasmuch as both statutes preempt only local regulations "relating" to the applicable industry, they must be afforded the same plain meaning - that they do not expressly preempt local regulation of land use, but only_regu1ations dealing with operations (Q Matter of Fg Run, 71 at 131, 133). Neither supersedure clause contains a clear expression of legislative intent to preempt local control over land use and zoning. Notably, the MLRL law was amended in 1991 to codify the holding of Matter of Frew and, in 1996, the amended supersession clause was 9 Matter gf Envirogg Town of Kiantgne, 112 Misc 2d 432 (1982), 89 1056 (1982), lv denied 58 602 (1982) (zoning ordinance providing that no oil or gas well could be con tructed without prior payment of a $2,500 compliance bond and $25 permit fee did not relate to land us and was preempted by the OGSML because it directly conflicted with the permit procedure administered by the DEC). . -13- construed by the Court of Appeals in Matter of att to permit a complete ban on mining activities within a municipality. Yet, in light of this legislative and judicial activity regarding the preemptive scope of the MLRL, there remains an absence from the OGSML -- as enacted in 1976 and amended in 1981 to add the supersedure clause a clear expression of legislative intent to preempt local zoning control over land use conceming oil and gas . production. . Anschutz's attempts to distinguish the language ofthe two supcrsession clauses are unavailing. It argues that the two clauses are different because the MLRL only preempts "local 1aws," while the OGSML provides for preemption of "1oca1 laws and.ordinances," and tl1at by use ofthe additional term 'lordinances," the OGSML necessarily preempts zoning ordinances, such as the Zoning Amendment, where the MLRL does not. Its argument exalts form over substance. Towns are empowered to enact zoning regulations through two different procedures -- by ordinance, pu1?suant to Town Law 261, 264 and 265, and by local law, pursuant to the Statute of Local Governments l0(6) and the Municipal Home Rule Liaw (g Matter of Pete Ihrown, Inc. Town Bd. of ofE1lenburg, 229 877 [1996], 89 802 [1996]; Yoga Sog. of Town gfMom?og, 56 842 [1977], dismisg 42 910 [1977]; Rice, 2012 Supp Practice Commentaries, McKinncy's Cons Laws of NY, Book 61, Town Law 264, 2012 Supp Pamph, at pp. 63 -- 64). Whether a substantive zoning provision is a law or an ordinance is determined solely by the procedure utilized in its enactment. The distinction between laws and ordinances in the area of land use regulations is not significant; indeed, the terms are often used interchangeably Matter of t, 87 at 681 - 682 [refers to zoning ordingce as land use having an -14- - I . I incidental effect on the extractive mining Thus, it would be illogical to conclude that the matter of preemption tums on whether a zoning regulation is enacted as a local law or as an ordinance. . Anschutz also argues that the OGSML is not susceptible to the distinction made by`the Court of Appeals when it determined that the MLRL preempts only local laws relating to operations, i.e. laws governing "how" are preempted, but not those governing "where." In that regard, it notes that the supersedure provisions ofthe MLRL and the OGSML contain different specific exceptions. The OGSML excepts only local government jurisdiction over local roads and rights regarding real property taxation-. Anschutz. contends that if the supersedure clause preempted only regulation of operations - the "how" - then the exception for local government jurisdiction over local roads would be unnecessary because regulation of roads does not affect operations.'? Its argtunent overlooks the. fact that hydrohacking depends upon transport of equipment, supplies and large volumes of hydroiracking fluid and waste by truck. Regulation of I local roads to restrict or regulate heavy truck traffic, or to require repair of damage caused by such traffic, would plainly relate to operation of gas wells by directly affecting access to well sites or other areas of operation and by imposing additional burdens or costs. Accordingly, - because regulation of local roads affects operations, the fact that the supersedure clause contains I the exception for jurisdiction over local road does not support the conclusion that the Legislature intended to preempt local zoning power not directly concerned with regulation of - Taxation of oil and gas economic units is governed exclusively by Real Property Tax Law article 5, title 5 (RPTL 590 5.), enacted concurrently with the 1981 amendment ofthe OGSML RPTL 594). - -15- . operations} Nor is the court able to discern any meaningful diiference in the purposes ofthe twonlaws - both provide for tatewide regulation of operations with the primary goal of encoiuaging efficient use of a natural resource, and the supersedure provisions of both enacted to eliminate inconsistent local regulation which had impeded that goal. The legislative history and purpose of the MLRL were summarized by the Court of Appeals as follows: "'I'he purposes of the statute are 'to foster a healthy, growing mining industry' and 'aid in assuring that land damaged by mining operations is restored to a reasonably useiirl and attractive condition' (Mem of Governor Wilson, June 15, . 1974, tiled with Assembly Bill 10463-A, Governor's Bill Jacket, 1974, ch 1043). The policy of the State, the Legislature has declared, is 'to foster and encourage the development of an economically sound and stable mining and minerals industry' (ECL 23-2703 To further this policy, the Mined Land Reclamation Law was to establish the badly needed guidelines which would allow for the utilization ofthe state's vast mineral resource based in a marmer compatible with wise resource management' and to eliminate '[r]egulation on a town by town basis [which] creates confusion for industry and results in additional and unfair costs to the consumer' (Mem of Department of Environmental Conservation in support of Assembly Bill 10463-A, May 31, 1974, Govemor's Bill Jacket, 1974, ch 1043). Thus, one of the statute's aims is to encourage the mining industry by the adoption of standard and uniform restrictions and regulations to replace the existing 'patchwork system of [local] ordinances' (Mager gfFrew Rim, 71 at 132). The Court of Appeals explained that the MLRL was intended to achieve two different legislative aims - providing statewide standardsregulating mining operations and separately permitting stricter local regulation of reclamation to address legitimate local concems -- and that the exception contained in the MLRL for local zoning ordinances imposing stricter standards for reclamation was related only to the second purpose Matter 134). It did not consider the exception when it decided that the plain meaning of the main clause ofthe supersedure provision of the MLRL did not preempt local regulation of land use, but only after it turned to consideration of the purpose and history ofthe statute (g Q. at 131 - 132). Accordingly, that the two supersedure provisions contain diiferent exceptions to preemption is not a basis for ascribing different meanings to the nearly identical language of their respective primary clauses. -16- The legislative history of the 1981 amendments to the OGSML -- when the supersedure clause was enacted -- similarly states that the purpose is to "promote the development of . . .. NYS's resources of oil and natural gas" (Mem dated July 9, 1981, filed with Senate Bill 6455-B) and "to provide for the equitable and environmentally safe development of the State's oil and gas resources" (Mem of Governor Carey dated July 27, 1981, filed with Senate Bill 6455- Nowhere in the legislative history provided to the court is there any suggestion that the Legislature intended - as argued by Anschutz - to encourage the maximum ultimate recovery of oil and gas regardless of other considerations, or to preempt local zoning authority. The OGSML contains the following express statement of its purpose: "It is hereby declared to be in the public interest to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste; to authorize and to provide for the operation and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be had, and that the correlative rights of all owners and the rights of all persons including landowners and the general public may be fully protected, and to provide in similar fashion for the underground storage of gas, the solution mining of salt and geothermal, stratigraphic and brine disposal we1ls."` ECL 23-0301. The foregoing provision does not state that it is in the public interest to require -- '2 Anschutz submitted an aftidavitby Gregory Sovas, who was employed by DEC and its predecessor agency from 1968 imtil January 2001, in which he provides his opinion regarding tl1e legislative history and pmposes of the OGSML and the 1981 amendments thereto and to DEC's - interpretation, implementation and enforcement thereo? It may not be considered, because it is not part of the recognized legislative history Matter gf Lorie C., 49 161, 169 [1980]; McKechnie Ortiz, 132 472, 475 [1987], 72 969 [1988]; Matter of Morabito Hggerman Fire Dist., 128 Misc 2d 340, 341 [1985], gting Matter gf Lori In addition, even if it is assumed that his affidavit accurately represents DEC's interpretation of the supersedure clause, it is not relevant because the issue in the present case involves one of pure statutory interpretation that does not require reliance upon DEC's knowledge or rmderstanding of underlying operational practices Kurcsics Mgmants Mut. Ins, Co., 49 451, 459 [1980]; gf Cortland Regional Med. Ctr., Inc. Novello, 33 Misc 3d 777, 782 - 783 [2011, Rumsey, guoting Kurcsics). - . -17- . or maximize - development ofthe oil and gas resources of New York State. Rather, it states that I the purpose of the OGSML is to regulate any development or production of such resources which may occur in a manner that prevents waste, permits greater ultimate recovery of oil and gas, and protects the correlative rights of all persons. By interpreting the foregoing provision as pertaining to regulation of development and production only in locations where such activities may be conducted in compliance with applicable zoning ordinances governing land use, the OGSML may be construed in a fashion which avoids any "abr?idgement of a town's powers to regulate land use through zoning powers expressly delegated in the Statute of Local Governments 10(6) and Town Law 261"(Mattg of Frew Run, 71 l\IY2d at 134). Nor is any significant difference in the prupose ofthe two statutes apparent from their? respective regulatory schemes. While the OGSML -- unlike the MLRL -- contains provisions which directly affect where operations may be conducted, such as those governing delineation of pools, well spacing, and integration of units ECL ECL 23-0501; ECL 23- 0503, ECL 23-0701 23-0901), they address technical operational concerns and are intended to further the stated statutory purposes of avoiding waste, providing for greaterultimate recovery of oil and gas and protecting correlative rights. For example, wells must be spaced to comport with I the- geological features ofthe underlying pool or formation -- taking into consideration the type and depth of the formation and whether- there are any field-bounding faults -- to allow efficient recovery ofthe entire field ECL ECL None of the provisions ofthe OGSML address traditional land use concerns, such as traffic, noisenor industry suitability for a particular cornrnunity or neighborhood Lg Town Law 261; I 191 Misc 2d 746, 751 [2002], on the opinion below 307 1029 . -18- I [2003]). Thus, zoning regulations do not directly conflict with the provisions of the OGSML that relate to well 1ocation." - - That the OGSML does not contain a clear? expression of legislative intent to preempt local zoning authority (E of Gematt, 87 at 682) is further apparent when it is compared to state statutes that indisputably preempt the local zoning power (see e. g, ECL, article 27, title 11 [siting industrial hazardous waste facilities]; Mental Hygiene Law 41.34 [siting community residential facilities]). The OGSML differs Hom such statutes in two significant respects. First, unlike the OGSML, the intent to preemptlocal zoning ordinances is clearly expressed in the text of the other statutes. ECL 27-1107 states that local municipalities may not require "eonformity with local zoning or land use law and ordlnance>" (emphasis supplied)." Mental Hygiene 41.34(e) provides that "a community residence established pursuant to this section and family care homes shall be deemed a family unit, for the purposes of logg laws gud ordinances" (emphasis supplied), to preclude local govemments from excluding group homes hom areas zoned for single-family residences (see also Incormrated Vil. of Dagop Vil., As the Court of Appeals noted, where, as here, there is an express supersedure clause, there is no need to consider implied preemption; resolution of such cases turns on proper construction of the supersedure clause at issue of Frew Run, 71 at 130 -- 131). Whether there is conflict between the local ordinance and the state statute is considered as part of - the process of statutory interpretation, specifically by measuring the effect of the local ordinance against the purpose of the state statute (Q. at 133 - 134). Here, no impermissible conflict has been found. It bears noting that although ECL originally required denial of an application to construct or operate a hazardous waste facility if it "would be contrary to local zoning or land use regulations in force on the date of the application" atter of Washin Coung Cease Persico, 99 321, 324 - 325 [1984], on opinion below 64 923 [1985] [emphasis in original]), ECL article 27, title ll was thereafter amended to expressly preempt local zoning authority ECL ECL 27-1l07;Weinberg, Practice Commentaries, McKinney's Cons Laws of NY, Book 17 ECL 27-1105). . -19- 78 500, 506 - 507 [1991] [Mental Hygiene Law 41.34 expressly withdraws the zoning authority of local govermnents];? Salkin, 1 NY Zoning Law Prac 7:25 [Mental Hygiene Law 41.34 was designed to preempt local control over planning and zoning decision making]). Second, these other statutes contain provisions by which the traditional concems of zoning are required to be considered by the agency charged with deciding whether to issue a permit under state law ECL 27-1 103 Mental Hygiene Law 41 .34[c] As previously noted, the OGSML does not require consideration of such factors prior to issuance of well permits. To ensure that local concems _are considered, these other statutes require I . advance notice to, andallow participation by, a municipality in which a proposed facility is to be located (ge ECL ECL 27-1113; Mental Hygiene Law By contrast,. the OGSML only requires that notice be provided to a municipality before drilling commences - after a well permit has been granted (g ECL 23-0305[l A clear legislative intent to preempt local zoning authority _is not apparent irom the fact that the OGSML does not specifically provide a mechanism for consideration of local concerns. Rather, by construing the OGSML in I accordance with its plain meaning -- as superseding only local regulation of operations -- it may be harmonized with those statutes that grant the zoning power to local municipalities Matter of Frew Run, 71 at 134). Under this construction, local governments may exercise their powers to regulate land use to determine where within their borders gas drilling may or may- not take place, while DEC regulates all technical operational matters ona consistent statewide basis in locations where operations permitted by local law. I The fact that the Zoning Amendment bans all operations related to oil and gas exploration I and production anywhere within the Town of Dryden does not compel a different result. In . -20- . Matter of Gematt, the Court of Appeals rejected the argument that if the land within a municipality contains extr?actable minerals, then the mtmicipality is required to permit them to be mined somewhere. It held that, inasmuch as the MLRL does not restrict the power to zone, a municipality may exercise its zoning authority to completely ban mining within its jurisdiction. Ir1 proceeding to determine that the doctrine of exclusionary zoning does not prohibit use of the zoning power to exclude industrial uses -- a point not raised in this case - the Court specifically noted that the zoning power may properly be used to limit the use of natural resources, stating that: . . municipality is not obliged to permit the exploitation of any and all natural . resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests ofthe community as a whole." (Meijer of Qematt, 87 at 684 [citations omitted]). In light ofthe determination that the OGSML -- like the MLRL -- does not preempt local zoning power to regulate uses of land, there is no rational basis for distinguishing Matter of Qemag; accordingly, the OGSML does not- . preempt a m1micipality's authority - through the exercise of its zoning power - to completely ban operations related to oil and gas production within its borders." I *5 Although the court recognizes that natural gas extraction - unlike gravel mining -- does not necessarily affect the surface ofthe ground directly over the area irom where the natural resource is removed, the fact that_the boundaries of formations containing gas may not conform to municipal boundaries is not a logical basis for distinguishing Matter of Qernatt. The same . considerations about well location and spacing exist wherever there is a boundary between areas where drilling is permitted and where it is not; therefore, it wouldbe illogical to conclude that a municipality may lawtirlly exclude gas drilling irom certain areas ofthe municipality, but not the entire municipality (Q Voss Lundvall Brothers, 830 P2d 1061 [1992]). Moreover, because the location of any bormdaries between areas where drilling is a permitted use and where it is prohibited by a local zoning ordinance - whether between dift`erer1t districts within a municipality or between different municipalities - will be known when a well permit application is under consideration, DEC may account for such boundaries to site wells in any . . -21- Finally, while this is a case of first impression in New York State, the issue of the use of I the local zoning power to regulate location of natural gas drilling operations has been considered in several decisions by thehighest coiuts of and Colorado. While they are not binding precedents in this case, it is instructive that both courts reached the same conclusion as this court did by applying New York precedent- that their respective state's statute governing oil and gas production does not preempt the power of a local government to exercise its zoning power to regulate the districts where gas wells are a permitted use. Oil and Gas Act specifically empowers local governments to enact zoning regulations, provided that they do not impose fconditions, requirements or limitations on the same features of oil and gas well operations regulated by this act or that accomplish the same purposes as set forth in this act" Inc. Borough Council of the Borough of Oakmont, 600 Pa 207, 212, 964 A2d 855, 858 [2009] [emphasis and quotation omitted]). This language is similar to the supersedure provisions. of the OGSML and the MLRL, which both I preempt only those local laws which regulate operations. In an analysis remarkably similar to that conducted by the Court of Appeals in Matter of Frew Rim, the Supreme Court I concluded that the zoning laws serve a different purpose than statutes aimed at efficient production and utilization of a natural resource, regulation of land use and development (gg - 600 Pa. at 225, 964 A2d at 865). It then adopted the same how-versus-where distinction in concluding that a zoning ordinance prohibiting gas wells in a residential district was not preempted by the Oil and Gas Act. In a case decided the same day, it held that a local ordinance that regulated well operations by the imposition of permitting and bonding areas where drilling is allowed. I I I I - -22- requirements and by regulation of operations - similar to the one at issue in Matter of Envirogas, 112 Misc 2d 432 - was preempted Range Resources Salem Township, 600 Pa. 231, 964 A2d 869 [2009]). Citing and Range Resources, intermediate appellate court held that zoning regulations prohibiting gas drilling within the flight path of an airport runway and imposing setback and screening requirements were not preempted by the Oil and Gas Act because they "reflect traditional zoning regulations that identify which uses are permitted in different areas of the locality" tljennerj Oil Co., Inc. County of Fayge, 4 A3d 722, 733 [2010]). In a pair of cases that it also decided the same day, the Colorado Supreme Court held that Colorado's Oil and Gas Conservation Act - which does not contain an express supersedure clause, but contains a purposes clause similar to the OGSML -- does not preclude local municipalities from regulating the districts within which gas drilling may occur Bowen/Edwards Assoc., Inc. Bog of Coung Commissioners of La Plata Coungg, 830 P2d 1045 [1992]; 830 P2d 1061 [1992]). It further held that, inasmuch as gas pools do not conform to municipal boundaries, a zoning ordinance that totally banned all drilling within a local governrnent's borders would be preempted because it would conflict with the state's interest in fostering efficient developm -1 and production of oil and gas reserves. In New York, however, previously noted, the Court of Appeals has held otherwise - that a total ban on the extraction of natural resources is permissible where the Legislature has not restricted municipal authority regulate permissible uses ofland (E Matter of Gernatt, 87 at 682 - The court does not find Newbgg. flyp. Bd..gf Trustees .Lomak Petroleum (Ohio 62 Ohio St. 387, 583 302 (1992) instructive in this case. There, the statute at issue . was notably different than the OGSML because it permitted a local municipality to prohibit oil or . -23- THE ZONING PROVISION INVALIDATING PERMITS The Zoning Amendment provides that permit issued by any local, state or federal agency, commission or board for a use which would violate the prohibitions of this section or of this Ordinance shall be deemed valid within the Town" (Dryden Zoning Ordinance, Section While the Town may regulate the use of land within its borders -- even to the extent of - banning operations related to production authority to invalidate a permit lawfully issued by another governmental entity. Rather, enforcement of the provisions of its Zoning Ordinance relating to the use of land is restricted to those remedies authorized by Town Law 268 and Mtmicipal Home Rule Law Moreover, by purporting to invalidate permits that may be issued by any state agency -- including DEC -- this provision relates directly to regulation of the oil and gas industries and, accordingly, is expressly preempted by the OGSML. Thus, it is invalid. However, the presence ofthe invalid provision does not require that the entire Zoning I Amendment be invalidated because it may be severed without_ impairing the tmderlying purpose of the Zoning Amendment CWM Chem. Servs., L.L.C. Roth, 6 410, 422 -- 425 [2006]; Wiggm Town of Somers, 4 215, 222 [1958], rearg denied 4 1045, 1046 [1958]; St. Josgeph Hosp. of Chgelctowaga Novello, 43 139, 146 [2007], apgl dismissg 9 988 [2007], 10 702 [2008]; Dryden Zoning . gas well drilling in areas traditionally considered appropriate for such activity based only on health and safety considerations. While acknowledging that municipalities could properly enact zoning regulations based on health and safety concems, the Court invalidated a local zoning ordinance prohibiting gas wells in all resid tial districts by sub tituting its own judgment for that of the town in finding that drilling was appropriate in areas used for agricultural production and zoned residential. - I -24- Ordinance 2101 ["The invalidity of any section or provision of this Ordinance shall not invalidate any other section or provision Accordingly, Section 21 04(5) is hereby severed and stricken from the Zoning Amendment and the Dryden Zoning Ordinance. Inasmuch as the court is unable to discern any meaningful difference between the language of the supersedure clauses of the MLRL - it existed when Mgger of Run was decided -- and the OGSML, or in the respective legislative histories, purposes or regulatory schemes of the two statutes, it is const1?ained to apply Matter of Frew and Matter of.Qg1gatt in determining that the Zoning Amendment is not preempted by the OGSML. Accordingly, the Town's motion for summary judgment is granted, and it is adjudged and declared thatthe Zoning Amendment- as herein modified by and striking Section 2l04(5) -- is not preempted by the OGSML. This decision constitutes the order and judgment of the court. The transmittal of copie of this decision, order and judgment by the court shall not constitute notice of entry. . Dated: February 21, 2012 Cortland, New York Supreme urt Justice . -25- . The following- documents were filed with the Clerk of the County of Tompkins: -- Summons dated September 16, 2011. - Notice of petidon dated September 16, 2011. - Verified petition and complaint dated September 16, 2011. - Unsworn "Affidavit" of Pamela S. Kalstnom dated September 15, 2011, with Exhibits A -- C. - Affidavit of Gregory H. Sovas, sworn to September 12, 2011, with Exhibit A. - Acknowledgment of Service dated September 16, 2011. - Stipulation dated October 5, 2011. - Verified answer of respondents-defendants dated October 21, 2011. - Three volume record iiled by respondents--defendants on October 21, 20.11. - Notice of motion by respondents-defendants dated October 21, 2011. - of Mary Ann Sumner, sworn to October 21, 201 1. . - Affidavit of Bambi L. Avery, sworn to October 13, 2011. - Affidavit of Henry M. Slater, swom to October 12, 2011. - Affidavitof Sibley Stewart, sworn to October 19, .201 1. I - Affidavit of Mahlon R. Perkins, swom to October 21, 2011, with attached exhibits. - Qffirrnation of Yvonne E. Hermessey dated October 28, 2011, with Exhibits A - - Reply Affirmation of Yvonne E. Hennessey dated November 3, 2011, with Exhibits A - B. - - Notice of motion by George A. Mathewson dated October 26, 2011. - Application for Permission to File Amicus-Curie [sic] Brief dated October 23, I -26- . 201 1. - of George A. Mathewson, swom to October 24, 2011, with Exhibits 1 - - Order to show cause dated October 28, 2011. I - Affidavit of Barbara S. Lifton, sworn to October 27, 2011. - of Jordan A. Lesser, sworn to October 27, 2011. - Brief for Barbara S. Lifton as amicus curiae dated October 27, 201 1. - Notice of motion by Dryden Resources Awareness Coalition (DRAC) dated October 26, 201 1. - Verified answer of 1511Ac dated October 26, 2011. - of Alan J. Knauf dated October 26, 2011. - - Affidavit of Marie McRae, swom to October 26, 2011, with Exhibit A. - of Joseph Wilson, swom to October 26, 2011. - Affidavit of Judith Pierpont, sworn to October 26, 2011, Exhibit A. - Afiidavit of Carlene S. Cortright, swom to October 26, 2011. - Ailidavit of Deborah Cipolla-Dennis, sworn to October 26, 2011. - Affidavit of Mitchell Lavine, sworn to October 26, 2011. - Proposed order to show cause filed by Natural Resources Defense Council, Inc., Beverly Ommegang, Theodore Gordon Flytishers, Inc., Riverkeeper, Inc. and Catskill Mountainkeeper filed on November 1, 2011. - of Deborah Goldberg dated October 31, 2011, with Exhibit A. - I Memorandum of Law Anmici Curiae of Natural Resources Defense Council, Inc., Beverly Ommegang, Theodore Gordon Flyiishers, Inc., Riverkeeper, Inc. and Catskill Mountainkeeper. . -27- - Proposed order to show cause tiled by the Town of Ulysses on November 2, 201 1. - Memorandum of Law of Proposed Amicus Curiae Town of Ulysses. - of John J. Hemy, Esq., sworn to November 1, 2011. - Affidavit of Roxanne Marino, swom to November 1, 2011. - Affidavit of Mahlon R. Perkins, sworn to November 2, 2011. . - Aftirmation of Yvonne E. Hermessey in -Opposition to Amicus and Intervention Filings dated November 2, 2011, with Exhibit A. - Letter Decision dated November 2, 2011, declining to sign the proposed order to show cause filed on November 1, 2011. - Letter Decision dated November 2, 2011, declining to sign the proposed order to show cause filed on November 2, 2011. - - Email memorandum from the court to counsel for respondents-defendants, and proposed intervenor dated November 7, 2011 (tiled by the court). . - -- Marcellus Shale webpage published by the New York State Department of Enviromnental Conservation (DEC), obtained from the DEC website at (site last accessed February 21, 2012) (filed by the court). - - Webpage from the U.S. Energy Information Administration website at in brief/about shale gas.cfm (last accessed February 21, 2012) (iiled by the court). . - Webpage from the United States Enviromnental Protection Agency website at (last accessed February 21, 2012) (filed by the court). - Original Decision, Order and Judgment dated February 21, 2012. .