American Oil and Gas Reporter - December 2015 - 99

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ConventionCoverage: Independent Oil & Gas Association of New York
dramatically," Thur observed. "This will
be one of those downturns that will be a
little bit more dramatic than most. Some
of the companies will be acquirers or
maybe be acquired because of their
quality. You do not want to own companies that are too leveraged."
As the world becomes more united in
a global economy, it is even more im-

portant for the larger drivers, such as
China, to get back on track, he said. All
commodity markets are waiting for business to recover, as well as the dollar to
weaken, Thur said.
"Part of being an investor requires
patience. Right now, you do not want to
be overweight in the energy sector, because
it will take time to recover. You have to

be early though, because the market will
leap about nine months ahead of any
kind of turnaround," Thur held. "Some
experts think oil will rebound in the
second half of 2016. If that is correct,
you definitely want to be looking at those
companies in this quarter and in the first
quarter of 2016."
❒

Lawyer Challenges N.Y. Fracture Ban
AMHERST, N.Y.-New York's ban
on high-volume hydraulic fracturing is
less than a year old, and it is facing its
first legal challenge.
David Morabito introduced himself
to the Independent Oil & Gas Association
of New York as a New York landowner
with property in Allegany and Monroe
counties as well as a criminal lawyer
living near Rochester, N.Y. He reported
he had filed an Article 78 administrative
procedure against the state Department
of Environmental Conservation.
"As far as I am concerned, New York
took my rights away as a private citizen to
conduct high-volume hydraulic fracturing
on my property," he said at IOGA NY's
convention, held Oct. 21-22 at the Buffalo
Marriott Niagara in Amherst. "But, this
case is much bigger than me now. It is now
like I am representing the whole industry."
Governor Andrew Cuomo announced
Dec. 17 that New York would prohibit

David Morabito, an attorney and a
landowner with properties in two upstate
New York counties, reports on his Article
78 filing against the state Department
of Environmental Conservation's prohibition against high-volume hydraulic
fracturing to the Independent Oil & Gas
Association of New York.

high-volume hydraulic fracturing projects,
citing fears the stimulation technique
could contaminate water supplies. The
prohibition covers fracturing jobs using
300,000 or more gallons of fracture fluids
for vertical and horizontal wells (AOGR,
January 2015, pg. 219).

Private Rights
Morabito said he and his wife had
planned to develop their properties after
they bought the first lot in 1997. A December 2014 newspaper article alerted
him that the state's ban on high-volume
fracturing was to be permanent. In response, he reported, he wrote a letter to
DEC Commissioner Joseph Martens, asking if the prohibition applied to private
citizens.
After not receiving a reply for 30
days, he wrote again, this time receiving
a negative response from DEC. Morabito
said the response blocked other options,
and so he decided to contest the administrative action through an Article 78 proceeding. Although a lawsuit could take
years, he told IOGA NY, the Article 78
action could be in front of a judge within
weeks.
His first move was to summarize the
1,578-page final supplemental generic
environmental impact statement that Cuomo used to justify the prohibition, Morabito related. The synopsis repeated DEC's
conclusion that appropriately regulated
high-volume fracturing would benefit
New York, he described.
"Wherever I go in the state, everyone
is 100 percent behind me. Initially, I
thought I was going to be spit on for
doing this by the anti-fracturing groups,
but the average person in the state, particularly upstate and more particularly
western New York, is very much in favor
of this," he said
The lack of adequate response from
state legislators, especially those from

western counties, has proven especially
disturbing, Morabito asserted. He held
that New York should encourage oil and
gas development because of the economic
benefits it would provide to some of the
state's poorest counties. In addition, he
pointed out, if New York allows fracturing,
experts predict Buffalo and Rochester-
two of the country's poorest cities-are
likely to become regional hubs for companies working the Marcellus and Utica
plays.
The state has responded that Morabito
has not exhausted his administrative remedies and also that he has no standing to
commence an Article 78 proceeding, he
reported. The state maintained he must
go through the futile process of seeking
a permit he knew he could not secure to
exhaust his remedies, Morabito added.
On the second count, he indicated, "Their
lawyers said I am only a citizen of the
state, not any different than the public at
large, even though we are talking about
my land, my taxes and my real assets
that could be worth hundreds of thousands
of dollars."
Morabito said the IOGA NY convention had convinced him that the state's
defense was based on legal arguments.
"It is not based on technology or on
whether high-volume fracturing is good
or bad. The state is trying to keep me out
because of legal arguments that have
nothing to do with the facts of the case,"
he characterized.
In response to a question on what
IOGA NY could do to help in the legal
action, Morabito said any such help would
be required only after a judge heard the
Article 78 action.
"The worst I can do is lose," Morabito
concluded. "But I have to tap into your
brain power, your intellectual assets. You
can help me by having people volunteer:
SEE LAWYER PAGE 107
DECEMBER 2015 99

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