Opinion
Index No. 901268-11
02-18-2022
In the Matter of the Town of Riverhead and THE TOWN OF RIVERHEAD COMMUNITY DEVELOPMENT AGENCY, Petitioners/Plaintiffs, v. The New York State Department of Environmental Conservation, and JOSEPH MARTENS, as Commissioner of NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondents/Defendants. (And Another Related Proceeding/Action)
Frank A. Isler, Esq. Smith, Finkelstein, Lundberg, Isler and Yakaboski, LLP Attorneys for Petitioners/Plaintiffs Letitia James, Attorney General of the State of New York Andrew G. Frank, AAG NYS Office of the Attorney General Attorneys for Respondents/Defendants
Frank A. Isler, Esq.
Smith, Finkelstein, Lundberg, Isler and Yakaboski, LLP
Attorneys for Petitioners/Plaintiffs
Letitia James, Attorney General of the State of New York
Andrew G. Frank, AAG
NYS Office of the Attorney General
Attorneys for Respondents/Defendants
James H. Ferreira, Acting Justice of the Supreme Court
This hybrid declaratory judgment action and CPLR article 78 proceeding was commenced in 2011. Petitioners/plaintiffs (hereinafter petitioners) challenge amendments to 6 NYCRR part 182, pertaining to the protection of endangered and threatened species, adopted by respondent/defendant New York State Department of Environmental Conservation (hereinafter DEC) in 2010.
The procedural history of this matter can be briefly summarized as follows. This proceeding/action was commenced in Supreme Court, Suffolk County, under Index No. 2011- 5988. Around the same time, a similar proceeding/action was commenced in Supreme Court, Albany County, under Index No. 1268-11. By Stipulation dated March 28, 2011, the parties agreed to consolidate the matters under Index No. 1268-11 and agreed that the matter would be venued in Albany County. By Decision/Order/Judgment dated December 1, 2011, Supreme Court (Ceresia, J.) granted the pre-answer motion of respondents/defendants (hereinafter respondents) to dismiss the actions/proceedings, finding that the causes of action set forth in the petitions were not ripe for adjudication and also that petitioners lacked standing (see Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 35 Misc.3d 786 [Sup Ct, Albany County 2011], affd 97 A.D.3d 1085 [3d Dept 2012], affd as modified 23 N.Y.3d 1 [2014]). On appeal, the Appellate Division, Third Department, affirmed, finding that, although the procedural claims were ripe, petitioners lacked standing (see Matter of Association For A Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 97 A.D.3d 1085 [3d Dept 2012], affd as modified 23 N.Y.3d 1 [2014]). Petitioners appealed and, by Opinion dated April 1, 2014, the Court of Appeals held that petitioners had standing to raise the procedural challenges to the amendment set forth in their First, Second and Third Causes of Action and that those causes of action were ripe (see Matter of Association For A Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23 N.Y.3d 1, 8 [2014]). The Court reinstated the three procedural causes of action.
That matter was captioned The Association for a Better Long Island, Inc., Jan Burman and M-GBC, LLC v The New York State Department of Environmental Conservation, and Joseph Martens, Acting Commissioner.
The matter was thereafter remitted to Supreme Court. The parties' counsel represented to the Court that they were engaging in settlement negotiations and the Court, upon agreement of the parties, directed that the matter would be held in abeyance pending the outcome of the negotiations. This matter was transferred to the calendar of the undersigned in July 2015. After several years of negotiations and numerous Court conferences, the parties were ultimately unable to settle the matter and the Court directed the submission of answering papers. Respondents thereafter filed an answer and petitioners filed a reply. The matter is now fully submitted for the Court's consideration.
The petitioners in the related action/proceeding did not join petitioners' appeal to the Court of Appeals and did not participate in the proceedings held before Supreme Court upon remittal.
In June 2021, this matter was converted, upon the parties' stipulation, into an e-filed case and assigned Index No. 901268-11.
2010 Amendments to Part 182
Pursuant to New York State's Endangered Species Act (hereinafter the Act), the taking... of any endangered or threatened species... is prohibited, except under license or permit from" DEC (ECL 11-0535). The ECL defines "taking" and "take"@ as including "pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting fish, wildlife, game, shellfish, crustacea and protected insects, and all lesser acts such as disturbing, harrying or worrying, or placing, setting, drawing or using any net or other device commonly used to take any such animal" (ECL 11-0103 [13]). Prior to 2010, DEC's 6 NYCRR part 182 regulations did not set out a specific process for DEC's issuance of licenses or permits for activities that were likely to result in an incidental taking of endangered or threatened species (see Affidavit in Support of Answer ¶ 13). With respect to a taking, the regulations provided: "[DEC] may, at its discretion, issue a license or permit to a person to take... endangered or threatened species of fish and wildlife for purposes it deems legitimate. Such license or permit shall state the species to which it applies and any other conditions [DEC] may deem appropriate" (6 NYCRR [former] 182.4; see Affidavit in Support of Answer ¶ 14).
Effective November 3, 2010, DEC adopted amendments to Part 182 which "established a formal process through which individuals could obtain a permit to allow for the incidental taking of such species" (Matter of Assn. for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23 N.Y.3d at 5; see 6 NYCRR 182.11[a]). The amendments provide that an incidental take permit is required "for any activity that is likely to result in the take or a taking of any species listed as endangered or threatened in this Part as determined by [DEC] and that is not otherwise exempt under section 182.13 of this Part" and set forth a number of specific requirements for applications for such a permit (6 NYCRR 182.11). Among other things, the amendments require an applicant for an incidental take permit to include "an endangered or threatened species mitigation plan... that [DEC] has determined will result in a net conservation benefit to the listed species and which has been approved by" DEC (6 NYCRR 182.11 [a], [c][5], [d]). In addition, the amendments require the submission of an implementation agreement which, among other things, must specify a timeline for the implementation of measures required by the mitigation plan and the funding available for implementation of the plan (see 6 NYCRR 182.11 [e]). The amendments also set forth specific standards and conditions for the issuance of an incidental take permit (see 6 NYCRR 182.12), and provide a process by which a prospective applicant may request a determination as to whether their proposed activity is likely to result in a taking (see 6 NYCRR 182.9). DEC took the position, in promulgating these amendments, that they did not set forth new criteria or standards but codified "DEC=s consistent prior interpretation of the requirements" of the ECL and did not require State Environmental Board approval or a public hearing (Affidavit in Support of Answer ¶¶ 34, 52).
The amendments define "net conservation benefit" as "a successful enhancement of the species'= subject population, successful enhancement of the species' overall population or a contribution to the recovery of the species within New York. To be classified as a net conservation benefit, the enhancement or contribution must benefit the affected species listed as endangered or threatened in this Part or its habitat to a greater degree than if the applicant's proposed activity were not undertaken" (6 NYCRR 182.2 [o]).
Petitioner's Arguments
In their First Cause of Action, petitioners assert that respondents violated ECL 3-0301(2)(a) by adopting the amendments without first obtaining the advice and approval of the State Environmental Board. In their Second Cause of Action, petitioners allege that respondents violated ECL 3-0301(2)(a) and Section 202 of the State Administrative Procedure Act (hereinafter SAPA) by adopting the amendments without first holding a public hearing. In their Third Cause of Action, petitioners allege that respondents failed to properly evaluate and analyze the regulatory impacts, including the costs, of the amendments as required by Section 202-a (3)(c)(ii) of SAPA and assert that, contrary to the finding of respondents, the amendments will "result in substantial additional costs to applicants" and to respondents (Petition/Complaint ¶ 39). Petitioners seek an order declaring the amendments to be null and void and injunctive relief prohibiting respondents from enforcing the amendments.
ANALYSIS
Upon careful review, the Court finds merit in petitioners' contention that respondents did not comply with ECL 3-0301(2)(a)'s public hearing requirement in promulgating the 2010 amendments to 6 NYCRR part 182. ECL 3-0301 (2)(a) provides that DEC, by and through its Commissioner, is authorized to "[a]dopt, amend or repeal environmental standards, criteria and those rules and regulations having the force and effect of standards and criteria to carry out the purposes and provisions of this act." The statute states: "No such environmental standards, criterion, rule or regulation or change thereto shall be proposed for approval unless a public hearing relating to the subject of such standard shall be held by the commissioner prior thereto not less than sixty days after date of notice therefor, any provision of law to the contrary notwithstanding. Notice shall be given by public advertisement of the date, time, place and purpose of such hearing" (ECL 03-0301 [2][a]). It is undisputed that DEC did not hold a public hearing prior to adopting the 2010 amendments.
At the time the 2010 amendments were adopted, the statute directed that the public hearing was to be held not less than 30 days after the date of notice therefor (see ECL [former] 3-0301 [2][a]). The statute was amended in 2016 to provide for a 45-day time period, and was amended in 2017 to provide for a 60-day time period (see L. 2016, c. 412, § 1; L. 2017, c. 455, § 3).
At the time the amendments were adopted, ECL 3-0301 (2)(a) provided that the advice and approval of the State Environmental Board (hereinafter the Board) was required for the adoption, amendment or repeal of "environmental standards, criteria and those rules and regulations having the force and effect of standards and criteria" (ECL [former] 3-301 [2][a]). It is also undisputed that respondents did not obtain the advice and approval of the Board before adopting the amendments. As respondents point out, the Board review requirement was abolished and the Board was eliminated pursuant to 2012 amendments to ECL 03-0301 (2)(a) (see L. 2012, ch. 60, § 1, part D, §§ 44, 45). Respondents argue that, because the 2012 amendment was remedial in nature, it had a retroactive effect such that the Board review requirement does not apply to the 2010 amendments at issue in this case. Even assuming, without deciding, that the Board review requirement was retroactively removed and does not apply to the 2010 amendments, that argument does not apply to the public hearing requirement, which was not repealed and remains in the statute. The Court notes that, inasmuch as respondents argued in their answering papers that the public hearing requirement was also repealed, they have acknowledged that this was an error and have withdrawn those arguments.
Respondents urge that no public hearing was required under ECL 03-0301 (2)(a) before the amendments were adopted because the amendments did not establish new DEC standards or criteria but "instead clarified and codified DEC's pre-existing standards or criteria for incidental take permitting" (Memorandum of Law in Support of Answer, at 20). On this point, respondents have offered evidence that DEC, prior to enacting the 2010 amendments, had issued four incidental take permits. Respondents assert that a review of these permits shows that DEC was already using the permitting requirements set forth in the amendments, such that the amendments are properly characterized as a clarification and codification of existing requirements that do not trigger the public hearing requirement. Respondents also argue that the jurisdictional determination provisions in the amendments did not trigger the public hearing requirement because those provisions do not impose any requirements upon regulated entities and therefore did not establish new standards or criteria.
Respondents' contentions in this regard, however, are not supported by any language in the controlling statute. The statute states that DEC is authorized to "[a]dopt, amend or repeal environmental standards, criteria and those rules and regulations having the force and effect of standards and criteria to carry out the purposes and provisions of this act" and that "[n]o such environmental standards, criterion, rule or regulation or change thereto shall be proposed for approval unless a public hearing" is held (ECL 03-0301 [2][a]). It cannot be disputed that the 2010 amendments to 6 NYCRR part 182 set forth environmental standards, criteria or rules and regulations having the effect of standards and criteria, and respondents do not make any claim to the contrary. Indeed, the amendments created a permit called an incidental use permit and set forth requirements for an application for such a permit and standards and criteria for the granting of such a permit. The statute does not limit the public hearing requirement to the enactment of new environmental standards or criteria which have never been applied by DEC, and does not carve out any exception for the codification of criteria or standards that have already been informally applied by DEC in the past. Rather, the statute states that it applies to the adoption and amendment of standards and criteria, and rules or regulations, and contains no qualifying language which supports respondents' position. Respondents, in addition, have not cited any case law that supports their position, and the Court has found none. The Court notes that there is case law supporting the proposition that ECL 3-0301 (2)(a) applies to all regulations promulgated by DEC (see Matter of Buffalo Sewer Auth. v New York State Dept. of Envtl. Conservation, 151 A.D.2d 95, 97 [3d Dept 1989]; People v Macellaro, 131 A.D.2d 699, 701 [2d Dept 1987], lv denied 70 N.Y.2d 801 [1987]), and there is also case law supporting the proposition that a failure to hold a public hearing pursuant to ECL 3-0301 (2)(a) renders a regulation defectively promulgated (see Matter of Al Tech Specialty Steel Corp. v New York State Dept. of Taxation & Fin., 130 A.D.2d 84, 87-88 [3d Dept 1987], lv denied 70 N.Y.2d 612 [1987]).
The Court also finds that, even assuming that respondent's interpretation of ECL 3-0301 is correct and it only applies to new environmental standards and criteria, the Court agrees with petitioners that the 2010 amendments fit into that categorization. The 2010 amendments formally created a new type of permit, provided specific application requirements and set forth standards for granting the permit. While the record reflects that, prior to the enactment of the amendments, DEC was already addressing the issue of incidental takings when the issue came before it, respondents have not offered any evidence that there was a written policy or other process in place which was simply codified when DEC promulgated the amendments to 6 NYCRR part 182. As such, the Court is not persuaded that the amendments are not "new" because they are a codification of existing requirements.
Based upon the foregoing, the Court concludes that the 2010 amendments to 6 NYCRR part 182 were not promulgated in compliance with ECL 3-0301 (2)(a) because no public hearing was held. This finding renders it unnecessary to address petitioners' other arguments in support of annulment. As such, the petition is granted inasmuch as the challenged 2010 amendments to 6 NYCRR part 182 are declared null and void and respondents are enjoined from enforcing them.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the petition is granted; and it is further
ORDERED AND DECLARED that the 2010 amendments to 6 NYCRR part 182 were not promulgated in compliance with ECL 3-0301 (2)(a) and are hereby declared null and void and respondents are enjoined from enforcing them.
The foregoing constitutes the Judgment of the Court.
SO ORDERED AND ADJUDGED
Papers Considered:
1. Order to Show Cause, dated February 17, 2011;
2. Summons and Verified Petition/Complaint, dated February 17, 2011, with attached exhibits;
3. Memorandum of Law in Support by Frank A. Isler, Esq., dated February 16, 2011;
4. Answer, dated August 18, 2021;
5. Affirmation in Support of Answer by Andrew G. Frank, Esq., dated August 18, 2021,with attached exhibits;
6. Affidavit in Support of Answer by Daniel L. Rosenblatt, Ph.D., sworn to August 18, 2021;
7. Memorandum of Law in Support of Answer by Andrew G. Frank, Esq., dated August 18, 2021;
8. Seven-volume Administrative Record, filed August 18, 2021;
9. Reply Affirmation by Frank A. Isler, Esq., dated October 22, 2021, with attached exhibits;
10. Reply Memorandum of Law by Frank A. Isler, Esq., dated October 22, 2021; and
11. Post-Reply Affirmation by Andrew G. Frank, Esq., dated October 25, 2021.