Reply Brief — David R. Morabito, et ux., Petitioners v. New York, et al.

No. 19-1319

IN THE

SUPREME COURT OF THE UNITED STATES

DAVID R. MORABITO and COLETTE M.G. MORABITO

Petitioners,

vs

NEW YORK, et al.,

____________________________________

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

REPLY TO BRIEF IN OPPOSITION

David R. Morabito and

Colette M. G. Morabito

PRO-SE

117 West Commercial Street

PO Box 187

East Rochester, NY 14445

(585) 586-5770

TABLE OF CONTENTS

Page No.

TABLE OF CONTENTS .................................................................................................... i

TITLE OF CITATIONS ....................................................................................................... ii

PRELIMINARY STATEMENT ............................................................................................ 1

POINT I 2020 LAWS OF NEW YORK-CHAPTER 58 ....................................................... 5

POINT 2 STANDING ...................................................................................................... 6

POINT 3 THE DECISIONS BELOW CLEARLY CONFLICTS WITH A PRIOR DECISION OF

THIS COURT AND SHOULD NOT HAVE BEEN DISMISSED BY COLLATERAL ESTOPPLE,

RES JUDICATA, OR BEEN BARRED BY THE FULL FAITH AND CREDIT ACT ................. 7

POINT 4 THE LOWER COURTS INCORRECTLY BARRED THIS SUIT UNDER THE

ELEVENTH AMENDMENT .............................................................................................. 9

POINT 5 THE LOWER COURTS INCORRECTLY DISMISSED PETITIONERS CAUSES OF

ACTION AS THE BAN ON HVHF IS A VIOLATION OF INTERSTATE COMMERCE ..... 12

CONCLUSION ............................................................................................................ 13

i

TABLE OF CITATIONS

CASE AUTHORITY

Page No.

Edelman v Jordan, 415 U.S. 651(1974).................................................................... 11

Ex Parte Young 209 U.S. 123(1908) .......................................................................... 11

Rose Mary Knick, Petitioner v. Township of Scott, Pennsylvania et al, 139 S.Ct.

2162(2019) Docket No.17-647 ............................................................................ 7, 8, 9

Williamson County Regional Planning Commission v. Hamilton Bank Of Johnson

City, 473 U.S. 172 (1985) ...................................................................................... 7, 8, 9

UNITED STATES CONSTITUTION

Fourth Amendment ................................................................................................ 5, 8

Fifth Amendment ................................................................................................ 5, 8, 9

Eleventh Amendment ............................................................................. ………10, 11

Fourteenth Amendment ........................................................................................ 5, 8

UNITED STATES CODE

28 U.S.C. §1738 ............................................................................................................ 8

42 U.S.C. §1983 .................................................................................................. 5, 9, 10

NEW YORK 2020 LAWS

Chap. 58....................................................................................................................... 5

ii

PRELIMINARY STATEMENT

Prior to addressing the three (3) Points in the Brief In Opposition, it is

necessary to make a few comments in regard to the inaccurate assessment set

forth in the Respondents’ Statement of the Case. Respondents allege that

“unconventional” High Volume Hydro-Fracturing (HVHF) was extensively

reviewed by the Respondents New York State Department of Environmental

Conservation (DEC) and the New York State Department of Health (DOH)

before being prohibited due to its potentially significant adverse effects on

public health and the environment.

Respondents state “the final SGEIS and

Findings Statement concluded that a prohibition of HVHF was the best available

alternative to balance environmental protection, public health concerns, and

economic and social considerations.”

This statement is inaccurate and distorts the true facts and circumstances

of HVHF in the State of New York (NYS). The Respondents conducted their own

exhaustive studies and analyzed, critiqued, and deciphered other studies.

Pursuant to Respondents’ own studies, they proposed extensive rules and

regulations to preserve the needed conversation practices of soil, water, and air

quality. Respondents’ own study of the Revised Draft Supplemental Generic

Environmental Impact Statement (Revised dSGEIS) consisted of approximately

1,537 pages with a bibliography of approximately 1,200 studies and reports

determining that HVHF is a viable and safe means to extract natural gas in NYS.

To show how extensive the study was, the Revised dSGEIS, which this case

1

is based upon, was prepared by the following Respondents’ Divisions and

Departments: Division of Water; Division of Air Resources; Division of Lands and

Forests; Division of Fish, Wildlife and Marine Resources;

Division of Mineral

Resources; New York State Energy and Research Development Authority;

Department of Health (DOH); DOH Bureau of Water Supply Protection; DOH

Bureau of Toxic Substance Assessment; DOH Bureau of Environmental Radiation

Protection; Office of Climate Change; Division of Materials Management;

Division of Environmental Permits; and Division of Environmental Remediation.

The hereinstated study specifically stated that HVHF can safely extract

natural gas and result in substantial economic benefits. The study determined

that if this important energy source (natural gas) was not harvested, it would be

contrary to NYS and national interests. It would also contravene Article 23-0301

of the Environmental Conservation Law (ECL), which stated:

“That it is hereby declared to be in the public interest to regulate 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 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 protected…” Revised dSGEIS 9-2/9-3

The Revised dSGEIS specifically stated that in NYS, the Marcellus Shale is

located in much of the Southern Tier. This shale deposit is now considered the

2

largest known shale deposit in the world. Additionally, the NYS Energy Plan

recognized the potential benefit from development of the Marcellus Shale

natural gas resource:

“Production and use of in-state energy resources-renewable resources and

natural gas-can increase the reliability and security of our energy systems,

reduce energy cost, and contribute to meeting climate change, public health

and environmental objectives. Additionally, by focusing energy investments on

in-state opportunities, New York can reduce the amount of dollars “exported”

out of the state to pay for energy resources.” Revised dSGEIS 9-2

The NYS Commission on Asset Maximization reported in the Revised draft

SGEIS at 9-3, that an increase in natural gas supplies would place downward

pressure on natural gas prices, improve system reliability and result in lower

energy cost for New Yorkers. In addition, natural gas exploration would create

jobs and increase wealth to Upstate landowners and increase state revenue

from taxes and land-owner leases and royalties. HVHF would provide “much

needed revenue relief to the State and spur economic development and job

creation in economically depressed regions of the State.” The Revised dSGEIS

stated that HVHF would also be a clean green energy source. This report

encouraged HVHF and denial of “unconventional” extraction of natural gas

would have adverse impacts to the NYS. Further, the Revised draft SGEIS

specifically determined that any adverse impacts could be readily mitigated.

Continuing, it was the specious “study” of the DOH that the Respondents,

3

in its Final SGEIS, determined that HVHF should be banned and eventually

outlawed. As was previously argued by the Petitioners, the DOH study was not

based on any findings that HVHF was dangerous to the public health and

environment. In fact, the DOH did not have any studies that established that

HVHF was “dangerous”. As repeatedly stated, the permanent ban and law on

HVHF was not based on science, technology, research, or geology.

It is interesting to note that the Empire State has contradicted the studies

and research of thirty-eight (38) other states (including California) and the

Obama/Trump Administrations. Every state that has natural gas exploration is

using the modern “unconventional” HVHF technology to extract its resources

and has brought the United States out of its dependency as a nation on oil and

gas production.

Further, HVHF is principally the only means to commercially extract natural

gas and as previously admitted by Respondents, the only method banned by

the NYS. As stated in detail by Petitioners, “unconventional” HVHF is the only

generally accepted means to extract natural gas in the United States and the

world. “Conventional” fracking, which is allowed in NYS, is not economically or

environmentally viable as a means of gas production. Gas exploration

companies have not commenced any serious production in the NYS. The most

readily and apparent observation, even though the Respondents have

previously stated there are other techniques available, is the fact that

“conventional fracking” in NYS is obsolete, unproductive, economically not

4

viable and will have a negative environmental impact.

The Revised draft SGEIS estimated that there could be anywhere from

1,700 to 2,500 wells for HVHF in the Marcellus shale play per year over the next 30

years. This report further stated that the natural gas market is critical to the State

of New York as over 95% of natural gas used in New York State is from other

states and Canada. This clearly establishes issues of interstate commerce that

should be addressed in the interest of justice and fairness.

POINT 1

2020 LAWS OF NEW YORK CHAPTER 58

Petitioners, in state court, commenced the lawsuits approximately five (5)

years ago originally addressing the HVHF regulatory ban was arbitrary,

capricious and violated their rights under the Constitutions of the United States

and New York State. Thereafter, Petitioners commenced the lawsuit(s) in district

court addressing that the HVHF ban was a regulatory Taking in violation of the

Fifth and Fourteenth Amendments and a violation of Due Process under the 4th

and 14th Amendments-all in violation of 42 USC § 1983.

While the Writ of Certiorari was being prepared, on or about April 3, 2020,

the Governor of NYS signed into law a permanent ban on HVHF (2020 Laws of

New York, Chapter 58) by incorporating said provisions in the NYS Budget.

Whether addressing a regulatory ban or a law, the Petitioners have had their

constitutional rights stripped away by the Respondents who argue that they

have “had no opportunity to make a record in defense of the statute.”

5

Respectfully, this is a meritless argument.

The NYS law has invalidated any rational claim related to Respondent’s

position on standing. NYS has absolutely and unconditionally taken Petitioners’

mineral resources (natural gas) by a permanent law. Now, NYS has engaged in

an outright Taking of Petitioners’ property rights in violation of the United States

Constitution. All the previous lower courts findings related to standing should be

set aside as a result of the NYS law. It is now illegal for Petitioners to attempt to

obtain a permit or to commence the permit process to extract natural gas by

HVHF.

POINT 2

STANDING

Respondents have repeatedly argued that Petitioners did not have

standing. The lower courts have accepted this unjust position. Petitioners did not

apply for a permit because Respondents told them they could not apply for a

permit. The “standing” argument, raised by the Respondents, respectfully, is a

complete distortion of the facts. To allege that Petitioners are at fault because

they did not build an “administrative record” is fundamentally unjust and

resulted in a miscarriage of justice. Petitioners have attended conferences,

classes, seminars, symposiums, spoke to Respondents and other state/federal

agencies

and

departments,

attorneys,

land

leasing

agents,

foresters,

representatives from oil and gas companies, and communicated with

approximately 50 oil and gas companies that were poised to start gas

6

production once the temporary ban to conduct HVHF was lifted. The

Respondents have repeatedly raised false allegations to all courts, including this

Court, that it is the fault of Petitioners that they do not have standing.

The simple fact is there was a temporary and permanent ban for at least

the past ten years on all HVHF in the NYS. The Respondents have previously

admitted that it was not possible to conduct HVHF because it was banned.

Further, they admitted that no entity or individual could commence the permit

process because of the ban. The Respondents specifically advised Petitioners

that they, or any entity, could not apply for a permit or be allowed to

commence the permit process related to HVHF. To continue the argument that

Petitioners failed to establish standing is meritless and a complete miscarriage of

justice.

POINT 3

THE DECISIONS BELOW CONFLICT WITH A PRIOR DECISION OF THIS COURT AND

SHOULD NOT HAVE BEEN DISMISSED BY COLLATERAL ESTOPPEL, RES JUDICATA, OR

BEEN BARRED BY THE FULL FAITH AND CREDIT ACT

The lower court(s) established a conflict with a prior decision of this Court

in Knick v. Township of Scott, 139 S.Ct. 2162 (2019) as Petitioners were required to

follow the dictates of

the ripeness doctrine set out in Williamson County

Regional Planning Commission v. Hamilton Bank of Johnson City, 473 US 172

(1985).

The Court held that the unanticipated consequences of the Williamson

7

County decision was that a takings plaintiff who complied with Williamson

County and brought a claim in state court would-on proceeding to federal

court after the unsuccessful state claim-have the federal claim barred because

of the full faith and credit statute that required a federal court to give preclusion

effect to the state court’s decision. This issue was exactly on point with the

Petitioner’s appeal. The lower courts dismissed Petitioners’ causes of actions

because of collateral estoppel, issue preclusion, res judicata, and application of

the Full Faith and Credit Act as the matters were litigated in state court.

The central issue in this entire case is whether or not Petitioners are entitled

to a realistic and fair opportunity to seek compensation for a constitutional

"taking" and violation of “due process” involving their property rights within the

meaning of the Fourth Amendment, Fifth Amendment and Fourteenth

Amendments to the United States Constitution. Pursuant to the lower courts’

determination, Petitioners had no such opportunity. However, prior to the

commencement of the case at bar, Petitioners were very much aware that they

had to comply with the Court’s decision of Williamson County.

Under that decision, Petitioners could not hold the state government

liable for a taking of their property rights in federal court until they exhausted

state court remedies. Petitioners, pursuant to the hereinstated rule, exhausted

their state remedies in order to litigate the takings controversy in the district

court.

The Court held in Knick that “we now conclude that the state-litigation

8

requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with

the rest of our takings jurisprudence, and must be overruled. A property owner

has an actionable Fifth Amendment takings claim when the government takes

his property without paying for it…and therefore may bring his claim in federal

court under §1983 at that time.” Knick at 2.

In the case at bar, the Petitioners were required to commence their

constitutional causes of action in the state courts of New York. The constitutional

issues were never resolved as said courts erroneously ruled that the Petitioners

did not have standing. This issue has been addressed in multiple points in the

lower courts. As a result of the Williamson County requirement, the lower courts

ruled that Petitioners were precluded to file federal claims. The Knick opinion

stated herein completely vindicates the position of Petitioners which establishes

that the decision by the lower courts were wrong, faulty, and improper.

Petitioners are most respectfully requesting that this Court impose on the lower

courts to follow the mandate of Knick v. Township of Scott.

POINT 4

THE LOWER COURTS INCORRECTLY BARRED THIS SUIT UNDER THE ELEVENTH

AMENDMENT

Petitioners respectfully assert that the Respondents have violated their civil

and constitutional rights guaranteed by 42 U.S.C. §1983. Further, Petitioner

acknowledges that he incorrectly brought the suit against the Acting

Commissioner Seggos in his "official" capacity though he was aware that he had

9

to commence the action in an "individual capacity" or “private capacity”. That

was one of the reasons Petitioners filed an application to amend the civil

complaint. It was a simple mistake that should not bar or destroy Petitioners’

rights to commence this lawsuit. To do so would be a miscarriage of justice.

Respondent Seggos, in the Amended Complaint was being sued, under color of

law, as a private citizen of the State of New York both personally and in his

individual and private capacity.

Petitioner is very much aware of the concept of sovereign immunity arising

under the Eleventh Amendment and its possible prohibition in bringing suits

against the State in Federal Court. Petitioner has commenced or is aware of

prior actions against "state officials" under §1983 actions by using the following

terms:

A.

Under color of law;

B.

Under color of law, personal capacity;

C.

Under color of law, private capacity;

D.

Under color of law, individual capacity; and

E.

Under color of law, private and personal capacity.

Simply, in the case at bar, Petitioner incorrectly stated in 'official' capacity.

As stated, Petitioner filed motions to amend the Complaint to correct the

hereinstated oversight.

The Respondents have not suffered undue prejudice by the proposed

amendment. The Amended Complaint did not involve addition of new

10

defendants, set forth any new claims, or raise new legal theories. The

Respondents did not file an Answer, there had been no discovery consisting of

the exchange and production of documents,

interrogatories, examinations

before trial, fact finding hearings or even a motion for Summary Judgment.

Pursuant to the requested amendments of the Amended Complaint, the

Respondent (Seggos) is not immune from suit under the Eleventh Amendment.

However, even if the Respondents, or more particularly the Acting Commissioner

was under the classification of "official capacity", the Court has held that the

Eleventh Amendment does not bar actions against a state "official" when there

is a violation of federal law and the Petitioners are seeking an injunction that

governs the official's future conduct. See Edelman v Jordan, 415 US 651 (1974).

Under this "well-known exception" to Eleventh Amendment immunity, set forth in

Ex Parte Young, 209 US 123 (1908), a plaintiff may sue a state official acting in his

official capacity, notwithstanding the Eleventh Amendment, for prospective,

injunctive relief from violations of federal law." Petitioners also sought leave for

injunctive relief to enjoin the Respondent(s) from enforcing an illegal ban on

HVHF.

In the case at bar, the district court had the inherent authority and power

to enjoin the Respondent(s) from continuing their illegal, unconstitutional, and

improper ban on HVHF. Further, this Court has the authority to redress the injury

imposed on Petitioners by the Respondents’ ban on HVHF. Here, the Petitioners

have been deprived of their rights under the United States Constitution and

11

federal laws. Moreover, Petitioners clarified in their Prayer for Relief that they

seek both monetary and injunctive relief against the Respondents for violating

federal law and the United States Constitution.

Finally, when Petitioners’ commenced the action in the federal court,

Respondent Acting Commissioner Seggos of the New York State DEC was

substituted as a defendant. He was personally the individual, who at that time,

had the authority to revoke, annul, cancel or “lift” the ban on HVHF anytime he

chose. Respondents have stated that this lawsuit should have been brought

against a retired commissioner. This position is not accurate as Seggos was the

current commissioner or acting commissioner at that time and was responsible

for the ban on HVHF. In any event, the Petitioners should have the right to

amend the complaint in order to bring an action against the appropriate

Respondents.

POINT 5

THE LOWER COURTS ABUSED THEIR DISCRETION IN DISMISSING PETITIONERS’

CAUSES OF ACTION AS THE BAN ON HVHF IS A VIOLATION OF INTERSTATE

COMMERCE

Though this argument was raised for the first time in the circuit court,

Petitioners are respectfully asking the Court to address interstate commerce

issues in the interest of justice and fairness.

As stated, the ban on HVHF in the State of New York has had an enormous

impact on exploration, storage, disposal and transportation activities which are

12

a part of a continuous "current" of interstate movement of goods and services in

the national and global energy market. The permanent ban on HVHF activities

in the State of New York are demonstrably having a "substantial economic

effect" individually and cumulatively on interstate commerce. Petitioners, in

particular, are deprived of either the right to market their mineral, oil, and

natural gas resources to interstate markets as well as out of state purchasers are

deprived of the ability to purchase the oil and gas products from Petitioners and

other New York property owners and companies. Where a regulation clearly

discriminates against interstate commerce on its face, as Petitioners submit, that

regulation violates the Constitution.

CONCLUSION

The Court should vacate the judgments below and remand for further

proceedings.

Dated: August 24, 20202

Respectfully submitted,

/s/David R. Morabito

David R. Morabito and Colette M. G. Morabito Pro Se

117 W. Commercial Street PO Box 187

East Rochester, NY 14445 (585)586-5770

13

IN THE SUPREME COURT OF THE UNITED STATES

DAVID R. MORABITO and COLETTE M.G MORABITO,

Petitioners,

-against-

19-1319

THE STATE OF NEW YORK, THE NEW YORK STATE

DEPARTMENT OF ENVIRONMENTAL CONSERVATION and

BASIL SEGGOS, COMMISSIONER OF THE NEW YORK STATE

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Respondents.

CERTIFICATE OF COMPLIANCE WITH RULE 33.1(g)(iii)

Pursuant to Rule 33.1(g)(iii), I certify that the Reply to Brief In Opposition

contains 2,978 words, excluding the parts of the Reply that are exempted by

Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and correct.

Executed on August 29, 2020.

/s/David R. Morabito

David R. Morabito