Ass'n for a Better Long Island, Inc. v. N.Y.S. Dep't of Envtl. Conservation

• Decision Date: 01 December 2011
• Citation: 935 N.Y.S.2d 488
• Parties: The ASSOCIATION FOR A BETTER LONG ISLAND, INC., Jan Burman and M–GBC, LLC, Petitioners-, Plaintiffs, The New York State Department of Environmental Conservation, and Joseph Martens, Acting Commissioner, Respondents-, Defendants. The Town of Riverhead, and The Town of Riverhead Community Development Agency, Petitioners–Plaintiffs, The New York State Department of Environmental Conservation, and Joseph Martens, as Commissioner of New York State Department of Conservation, Respondents–Defendants. 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 Conservation, Respondents–Defendants.
• Court: New York Supreme Court

935 N.Y.S.2d 488

The ASSOCIATION FOR A BETTER LONG ISLAND, INC., Jan Burman and M–GBC, LLC, Petitioners-, Plaintiffs,

The New York State Department of Environmental Conservation, and Joseph Martens, Acting Commissioner, Respondents-, Defendants.

The Town of Riverhead, and The Town of Riverhead Community Development Agency, Petitioners–Plaintiffs,

The New York State Department of Environmental Conservation, and Joseph Martens, as Commissioner of New York State Department of Conservation, Respondents–Defendants.

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 Conservation, Respondents–Defendants.

Supreme Court, Albany County, New York.

Dec. 1, 2011.

935 N.Y.S.2d 491

Germano & Cahill, P.C., The Association For A Better Long Island, Inc., Jan Burman and M–GBC, LLC, Holbrook, Michael J. Cahill, Esq., of Counsel, Smith, Finkelstein, Lundberg, Attorney for Petitioners–Plaintiffs.

Isler & Yakaboski, LLP, The Town of Riverhead and The Town of Riverhead Community Development Agency, Riverhead, Attorneys for Petitioners–Plaintiffs.

Whiteman, Osterman & Hanna, New York State Builders Association, Inc. and National Association of Home Builders, Albany, Attorneys for Amici Curiae.

Eric T. Schneiderman, Attorney General, State of New York, (Yueh-ru Chu, Assistant Attorney General of Counsel), New York, Attorney for Respondents–Defendants.

DECISION/ORDER/JUDGMENT

GEORGE B. CERESIA, JR., Justice.

The Division of Fish, Wildlife and Marine Resources (the " Division") of the New York State Department of Environmental Conservation ("DEC") is responsible for implementing and enforcing New York State's Endangered Species Act (see Environmental Conservation Law ["ECL"] 11–0535 ). Effective November 3, 2010, at the request of the Division, DEC adopted amendments to Part 182 of its Rules with regard to the protection of endangered or threatened species (see 6 NYCRR Part 182, hereinafter "Part 182"). Prior to enactment of the amendments, DEC possessed the ability to enforce laws and regulations prohibiting the intentional taking of threatened or endangered wildlife (the outright killing or capturing of such animals). It also possessed the power to review the impact of proposed property development upon such species, where the DEC was an involved agency,¹ as a part of the review process under the State Environmental Quality Review Act ("SEQRA", see 6 NYCRR Part 617). It did not, however, possess a formal permitting mechanism to regulate consequential effects of land use, where such use could potentially have a detrimental impact on an endangered or threatened species. The amendments, inter alia, require a party to obtain a DEC permit, for what is described as an "incidental take"² , where actions involving

935 N.Y.S.2d 492

the use of land would have an adverse effect upon an endangered or threatened wildlife species (see 6 NYCRR 182.2 [j], [k] ). Among the many concerns of the petitioners/plaintiffs (hereinafter "petitioners"), an incidental take permit may not be issued unless DEC determines that mitigation measures to protect an endangered or threatened species would result in a "net conservation benefit"³ to the species (see 6 NYCRR 182.12 [a][3] ).

The Association For A Better Long Island, Inc., Jan Burman and M–GBC, LLC (hereinafter collectively referred to as "ABLI" petitioners) and the Town of Riverhead and the Town of Riverhead Community Development Agency (hereinafter collectively referred to as "Riverhead petitioners") have commenced the above-captioned combined action/special proceeding seeking review of the amendments to Part 182.⁴ The petitions allege various improprieties in connection with the adoption of Part 182. Chief among them, that DEC, in its adoption of the revisions to Part 182, failed to obtain approval of the State Environmental Board, and failed to hold a public hearing, as required under ECL § 3–0301(2)(a). They allege that the adoption of Part 182 was ultra vires from the standpoint it went beyond the power delegated to DEC by the state legislature. They allege that DEC violated the State Administrative Procedure Act ("SAPA"); violated SEQRA by failing to take a " hard look" at the environmental impacts associated with the adoption of Part 182; that the enactment of Part 182 constitutes an improper delegation of a governmental function (the regulation of threatened and endangered species) to individual property owners; and that the adoption of Part 182 constitutes a violation of petitioners' rights to substantive due process.

935 N.Y.S.2d 493

The respondents-defendants (hereinafter "respondents") have made a motion to dismiss the petitions/complaints (hereinafter "petitions") on grounds that the petitioners do not have the requisite standing to challenge Part 182, and that the issues raised are not justiciable, by reason that they are not ripe for review. The respondents allege that the petitioners have not suffered any actual, concrete injury, as they have not yet applied for a permit under Part 182; and that they have not made a request under Rule 182.9 for a determination with regard to whether a proposed activity is subject to the DEC regulation (see 6 NYCRR 182.9 ). They maintain that the application of Part 182 to the petitioners is purely speculative since, depending upon the activity which is undertaken and/or proposed, and the species effected, no regulation may be necessary. They argue "at this point all that exists is the mere possibility that DEC may have jurisdiction over an as of yet unknown activity". By reason of the foregoing, the respondents maintain that the issues are unripe and premature.

The determination of whether a matter is ripe for judicial review involves application of a two-part analysis: "first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied" (see Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 519, 505 N.Y.S.2d 24, 496 N.E.2d 183 [1986] cert. denied 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 578, citation omitted). "The appropriateness inquiry looks to whether the administrative action being reviewed is final and whether the controversy may be determined as a purely legal question" (id., quotations omitted). As the Court of Appeals stated in the Church of St. Paul & St. Andrew case:

"The second part of the inquiry requires an evaluation of the hardship to the parties of withholding [or granting] court consideration' (Abbott Labs. v. Gardner, [387 U.S. 136],[, 87 S.Ct. 1507, 18 L.Ed.2d 681], supra, at p. 149). The effect on the administrative agency and its program and the need for judicial economy should be taken into account as well as the degree of hardship to the challenging party (4 Davis, op. cit. § 25:6, at 369). Essentially, this inquiry, from the standpoint of the challenging party, entails an examination of the certainty and effect of the harm claimed to be caused by the administrative action: whether it is sufficiently direct and immediate' (Abbott Labs. v. Gardner, supra, at p. 152, 87 S.Ct. 1507) and whether the action's effects [have been] felt in a concrete way' (id., at p. 148, 87 S.Ct. 1507). If the anticipated harm is insignificant, remote or contingent (see Matter of New York State Inspection, Sec. & Law Enforcement Employees v. Cuomo, 64 N.Y.2d, at p. 240, 485 N.Y.S.2d 719, 475 N.E.2d 90, supra ) the controversy is not ripe.

"A fortiori, the controversy cannot be ripe if the claimed harm may be prevented or significantly ameliorated by further administrative action or by

steps available to the complaining party.[ ]" (Church of St. Paul & St. Andrew v. Barwick, supra, at 520, 505 N.Y.S.2d 24, 496 N.E.2d 183).

The recent case of Matter of New York Blue Line Council, Inc. v. Adirondack Park Agency, 86 A.D.3d 756, 927 N.Y.S.2d 432 [3d Dept., 2011], has close parallels to the case at bar. As relevant here, in New York Blue Line Council, the Court found that petitioner's challenge to nine regulatory amendments adopted by the Adirondack Park Agency⁵ was not justiciable.

935 N.Y.S.2d 494

The Court observed that the injuries asserted by the petitioners "involve the possibility of either indirect economic harm or that future variance and subdivision approval applications may be denied" (id. at 761, 927 N.Y.S.2d 432). The Court concluded:

"In our view, none of these allegations constitutes concrete injuries sufficient to state a justiciable claim. As this Court has held, [t]he mere fact that petitioners may have to endure the [Adirondack Park Agency] review process is not sufficient, without more, to constitute injury for this purpose' ( Matter of Wal–Mart Stores v. Campbell, 238 A.D.2d 831, 832–833, 656 N.Y.S.2d 536 [1997]; see Matter of Essex County v. Zagata, 91 N.Y.2d at 455–456, 672 N.Y.S.2d 281, 695 N.E.2d 232; Matter of Hunt Bros. v. Glennon, 81 N.Y.2d 906, 910, 597 N.Y.S.2d 643, 613 N.E.2d 549 [1993]; Weingarten v. Town of Lewisboro, 77 N.Y.2d 926, 928, 569 N.Y.S.2d 599, 572 N.E.2d 40 [1991] ). Inasmuch as the harm anticipated by the Blue Line

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