Tuesday, September 9, 2014

State Argues NYCO Foes Thwarting Will Of Voters

plumley lot 8Environmental activists seeking to prevent NYCO Minerals from drilling in the Jay Mountain Wilderness are trying to thwart the will of the electorate, according to court papers filed by the state attorney general’s office.

Assistant Attorney General Susan Taylor argues that NYCO should be allowed to drill for wollastonite in the state-owned Forest Preserve despite a lawsuit filed by Adirondack Wild, Protect the Adirondacks, Sierra Club, and Atlantic States Legal Foundation.

In November 2013, voters approved an amendment to Article 14 of the state constitution to permit NYCO to acquire a 200-acre parcel known as Lot 8 in the Jay Mountain Wilderness in exchange for land of equal or greater value. Known as Proposition 5, the amendment authorized NYCO to conduct test bores to ensure that Lot 8 contains enough wollastonite—a mineral used in plastics and ceramics—to make the land swap worthwhile.

“After losing a hard-fought political battle over the Constitutional amendment, petitioners now seek to continue the war in the courthouse,” Taylor writes in papers filed Friday in New York State Supreme Court.

“The ‘principle’ that petitioners repudiate is the choice made by the voters in November 2013,” Taylor says.

NYCO makes a similar claim in its legal papers: “Petitioners’ objections to the substance of the 2013 Amendment—which were already voiced, considered, and rejected during the Amendment process—provide no basis for invalidating the State’s decision to exercise precisely the authority conveyed to it by the voters through their approval of the 2013 Amendment.”

In July, the four environmental groups obtained a temporary court order against drilling after the state Department of Environmental Conservation issued NYCO a permit for the mineral sampling. Arguments are scheduled for next month on whether the drilling ban should be extended pending the resolution of the lawsuit.

Deborah Goldberg, an attorney for Earthjustice, which is representing the groups, denies that the plaintiffs are trying to repudiate the will of the people.

“The people of New York gave the state an option it did not have before.  All we are saying is that, in exercising that option, the state must follow consistent procedures and comply with legal requirements. DEC calls that ‘busy work.’ Even supporters of the constitutional amendment have been shocked at this administration’s cavalier attitude toward the rule of law,” Goldberg said in an e-mail to Adirondack Almanack.

In the lawsuit, the groups contend that DEC failed to follow a variety of environmental laws and regulations in issuing the permit, including the State Environmental Quality Review Act (SEQRA)

Taylor contends that Proposition 5 supersedes laws and regulations in conflict with the amendment. Yet she says DEC did take a “hard look” at the drilling plan, as required by SEQRA, and imposed a number of conditions in the permit to protect the environment.

“The SEQRA record is clear that DEC did not simply ‘rubber stamp’ the mineral sampling project,” NYCO asserts in its legal papers.

The plaintiffs contend that NYCO should be forced to prepare an environmental impact statement, a document that would analyze the project’s potential to harm natural resources.

Taylor and NYCO also rebut the claim that state lawmakers need to pass legislation to implement Proposition 5. Taylor says DEC attorney Ken Hamm, who drafted the Lot 8 amendment, intended it to be “self-executing.”

The state maintains that the public and the Forest Preserve will benefit  if the land swap occurs. DEC estimates that about 1,500 acres will be added to the Preserve. In addition, Lot 8 will be returned to the state when the mining is finished.

“The parcels to be added to the Forest Preserve would provide greater natural resource, recreational and environmental value than Lot 8,” Taylor writes.

“Contrary to petitioners’ claims, the forest [on Lot 8] is not old growth, and is host to no significant habitat, or rare, endangered, or threatened plants or animals,” she says.

Taylor says the mineral sampling will affect less than 7.5 acres on Lot 8—“a fraction of the parcel and an even smaller fraction of the Jay Mountain Wilderness.” If the test drilling finds insufficient reserves of wollastonite, NYCO will be required to restore and reseed the drilling sites and access corridors.

NYCO asserts that a delay in drilling could jeopardize jobs down the road. The company says its existing mine, which borders Lot 8, will run out of wollastonite in four years and yet it will take at least that long to conduct the sampling, do the land swap (which is subject to the approval of the state legislature), and get all the necessary approvals to begin mining Lot 8.

“Exploratory drilling must begin immediately to ensure that, if NYCO Minerals determines that further wollastonite mining on Lot 8 is advantageous, the necessary legislative approvals and DEC mining permits are obtained in time to mitigate the economic impact of a gap in wollastonite ore,” the company says in the legal papers.

Photo: Dan Plumley of Adirondack Wild visits Lot 8.

Related Stories

Phil Brown is the former Editor of Adirondack Explorer, the regional bimonthly with a focus on outdoor recreation and environmental issues, the same topics he writes about here at Adirondack Almanack. Phil is also an energetic outdoorsman whose job and personal interests often find him hiking, canoeing, rock climbing, trail running, and backcountry skiing. He is the author of Adirondack Paddling: 60 Great Flatwater Adventures, which he co-published with the Adirondack Mountain Club, and the editor of Bob Marshall in the Adirondacks, an anthology of Marshall’s writings.Visit Lost Pond Press for more information.

23 Responses

  1. Charlie S says:

    “In addition, Lot 8 will be returned to the state when the mining is finished.”

    Yes,but that lot will never be the same once NYCO tortures it!

    • Bill Ingersoll says:

      I like how DEC talks about Lot 8 like it’s a library book. NYCO is just borrowing it. They will give it back, promise!

      Granted, the bedrock will be pulverized into a tailings pile, the forest will be stripped away, and therefore what we get back will be seedlings on a landfill… but otherwise no worse for wear! It’s a benefit to the Forest Preserve!)

  2. Charlie S says:

    “Contrary to petitioners’ claims, the forest [on Lot 8] is host to no significant habitat, or rare, endangered, or threatened plants or animals,” Assistant Attorney General Susan Taylor says.

    No significant habitat? Plants or animals not threatened?
    We’re all threatened with mindsets like this,which there are an ample supply of. I have a mansion for sale down in Osh Kosh.Anybody interested?

    • Paul says:

      Charlie, this amendment will protect far more significant habitat than it disturbs. Seems like a fair trade. But yes it is a trade off.

  3. Charlie S says:

    NYCO asserts that a delay in drilling could jeopardize jobs down the road.

    I was reminded of the gas people (whose desire it is to ruin the rural landscape of New York State) when they babbled on about how many jobs they were going to create…. as if their #1 aim was about putting food on desperate peoples tables. How many jobs are going to be jeopardized? A thousand? Fifty? Is it worth destroying what we cannot replace?

    I imagine the day when we’re all down to our last breaths because the air is putrid and along comes a Halliburton executive trying to sell gas masks to the entire extent of the populace whom are dying off…which is probably just fifty years away the way we’re going.

  4. Tony Goodwin says:

    I will continue to offer the unpopular opinion (at least on this web site) that the passage of Proposition 5 is not the end of “the Forest Preserve as we know it.” Over the years since 1895 there have been many amendments proposed, but only a few that have been approved by the voters. The few that have been approved have allowed just enough flexibility to preserve the institution of Article 14 for now 130 years. Proposition 5 will ultimately either add 1,500 acres to the Forest Preserve OR result in a relatively minor and then mitigated disturbance to Lot 8.

    Yes, if the mining does proceed, Lot 8 will not be returned to the Forest Preserve in its “original condition”; but many other parcels of the Forest Preserve were added only after the timber had been stripped. Most recently, that was the case with the Perkins Clearing land exchange – again a constitutional amendment that clearly benefitted a private company while also preserving jobs.

    The Lot 8 amendment is not Panther Mountain Dam, Gooley Dam, the Closed Cabin Amendment, or any of the initiatives that would have opened the Forest Preserve to logging. In my view it is a very minor accommodation that preserves the livelihoods of many Park residents while also keeping the Forest Preserve vital for the future. I furthermore do not believe that it sets a dangerous precedent for any future amendments. Any future amendments can be dealt with based on whether or not they benefit the Forest Preserve in the long run.

  5. Bill Ingersoll says:

    [rant]And I will continue to offer my opinion that there can be no possible benefit to the Forest Preserve when a piece of designated Wilderness–the most environmentally protected land possible–is sliced off and laid at the altar of industrial exploitation. If ADK wants that 1500 acres so bad, they can buy it themselves and put a loj on it. Otherwise, corporate interests can keep their paws off my wildlands. No one ever passed a constitutional amendment to save my job.[/rant]

  6. The will of the voters? What most voters voted for was a bill of goods sold to them with a $650K PR campaign. I’ve seen/heard more than one comment post vote that said ‘I thought I was voting for a direct swap of a smaller piece of forest for a much larger piece of forest. Instead it was a vote to allow NYCO to explore Lot 8 to see if they really wanted it. If I had known what I actually voting for, I’d have voted “NO”‘. Some of us tried to tell voters ahead of time through social media but we didn’t have megabucks to get the word out. OTOH that seems to be how “democracy” works in contemporary America.

  7. To Tony I would say, that’s fine but I’d be a lot less unhappy about the vote if the proponents had been more forthright when promoting it. Yes, those who actually read the entire amendment before voting had all the information but you and I both know most voters didn’t read it. They went by what the promos told them and quite a few feel they were duped.

  8. Curt Austin says:

    It does appear that the proper legal procedure here is uncertain, and the courts are needed to define one. If the judgment of the first court is reasonable (that is, pleasing neither side), it would be nice if it were left to stand rather than prolong the conflict to indulge in other motivations.

  9. Scott van Laer says:

    I just can’t believe the people of New York placed so little value on their Wilderness. While I tend to be morally opposed to this type of “exchange” even I could have been swayed to vote yes if the exchange was substantial. 1 million dollars is not a lot of money these days and not nearly enough to sell out constitutional protection of our Forest Preserve. What will be the value of those mineral rights? Estimates are in the 100’s of millions are they not? Yet the people of the state sold out for only 1 million. The amendment in the ballot form didn’t make sense ethically, environmentally or financially for those who owned the wilderness (all New Yorkers) to vote yes.

    Sad, on the 50th anniversary of the Federal Wilderness act how a state that led the way has now lost it’s way in protecting wilderness.

    • Paul says:

      “the value of the land to be conveyed by the state and on condition that the assessed value of the land to be conveyed to the state shall total not less than one million dollars.”

      Not one million dollars. Not LESS than one million dollars.

      • Scott van Laer says:

        I know, I read that too…let’s be honest, minimum vs maximum. Do you expect an independent company to offer more because they found more? We vote for what’s in the amendment and NYS voters short changed themselves. There was nothing in the amendment to recoup more than that. Lot 8 was worth much more no matter your perspective.

        • Paul says:

          I would expect that there will be documentation shared with the DEC regarding the results of the exploratory drilling and that could easily indicate that we are going to get far more than 1 million dollars worth of additional land to add to the forest preserve. Not sure how that type of assessment works but it is hugely to the tax payers advantage to get to decide that after the drilling. That was a smart move by the state. And working in the minimum million values the land at far higher market rates than similar timberland with zero mineral value.

          The point here is that everyone should try and just simply say what is true regarding how the amendment was written and read by the voters. Not how it was interpreted by you or me?

          But I agree getting a million may be the best we do. So with that at a going rate of about 400 dollars for that type of timberland that is 200 acres so $80,000 for lot 8. For 1 million bucks we should insist that we get around 2500 acres of similar land. So we increase the relative size of the Forest Preserve by 12.5 times (at the low end).

          Now is the state going to do a good job as it negotiates for us. I hope so but there are no guarantees. In the worst case we are still getting a lot more land then we are losing. And the precedent here (if there really is one) is that we don’t swap Forest Preserve land with a commercial entity unless we are assured we will be getting far more than we are giving in the deal. I agree with many here that the reclamation is kind of a joke. I didn’t consider that worth much of anything.

          • scottvanlaer says:

            “So we increase the relative size of the Forest Preserve by 12.5 times (at the low end)”

            I have been out of school for a few decades but there is about 3 million acres of Forest Preserve and under the current plan we are adding 1,500 acres, wouldn’t that be net increase in the forest preserve of .05%?

            • Paul says:

              Scott, “relative”, as in related to this transaction. Not the whole thing.

              Even if they mine the entire 200 acres that would be 7.5 times at 1500 acres. It sounds like the mining (if they do it) will impact 50 or so acres so actually about 30X at that calculation.

              Anyway you look at it a “relatively” large increase.

              Hopefully they we can get even more.

    • Scott van Laer says:

      All the “down” thumbs indicate that many people feel 1 million dollars is what 200 acres of wilderness is worth. That’s even more sad to me.

  10. R.L. Stolz says:

    Had the NYCO amendment included language specifically stating that normally-applicable environmental regulations would be ignored if the amendment passed, I suspect many voters would have seen things very differently. Nowhere in the amendment was such language apparent, nor was carte-blanche offered to NYCO. They should be subject to the same regulations and procedures, designed to clarify the impacts and protect against abuses, that anyone else would need to address before moving forward. Their compliance with regulations is not some onerous extra burden; it’s the same law everyone must follow.

    New Yorkers voted to swap part of the Forest Preserve in return for a potential promise of more land in the long run. They did not vote to alter the tools used to protect the Forest Preserve.

  11. Paul says:

    The SEQRA process is to determine what the environmental impacts will be not to prevent them from happening. In the case where the public has already said do it what is the point?

    The environmental impacts on the drill sites will be extreme. If the mining is pursued the impacts will be even more extreme.

    Isn’t that the reason we have authorized the state to make sure we get more land to replace what is going to be wrecked and more. The voters were not duped unless they are clueless.

  12. Pete Nelson says:

    Are we all paying attention?

    I’ll simply point out, per my series on NYCO, that they are again playing the jobs card, which should surprise no one.

    Both Peter Bauer (in a 2013 column and a follow on in 2014) and I (in the series I published a few weeks ago) laid out a bigger picture that shows how the jobs issue is dependent mostly upon matters and affairs far outside the park. NYCO is a subsidiary of a huge multinational corporation, S&B Industrial Minerals, with nearly 2,000 employes and dozens of mines all over the world. In terms of jobs, this “local” deal is small potatoes. Yet they are asserting that jobs could be jeopardized over a delay in test drilling. This assertion is made even as they are separately asking for permits to expand existing mines. Again, this should be no surprise, this is how the game is played: to leverage sentiment, to appeal to fears, to win, to profit.

    If you think my comments to be unfounded rhetoric I’ll ask you a question: if you owned a local business would you threaten the jobs of your employees over a similar court proceeding? Of course not. That would be fear mongering. But you readers are people, not corporations.

    My argument with the defenders of Prop 5 is that we are playing way over our heads and we’re doing it with protected wilderness. We are in fact playing into the hands of a multinational company that is not local, that has a bottom-line mission that seeks profit, period, and certainly not the welfare of the Adirondacks or local jobs. That is why we should never have approved Prop 5 and that is why it is in fact a dangerous and unfortunate precedent.

    And that’s why we must pay attention and learn from this mistake.

    • Paul says:

      Pete you make it sound as if NYS is some peanut under the foot of this corporate elephant. The state has a huge budget and an army of very good legal people that far outweighs even S&B.

      I didn’t think any of the jobs stuff was relevant but I also think that NYS has the ability to take care of itself pretty well up against any company.

      You raise good points but to say that NYS is in over its head doesn’t seem at all accurate.

  13. Charlie S says:

    Paul says: “The voters were not duped unless they are clueless.”

    I wont even go there Paul. You do make me laugh though I must say.

  14. Colvin says:

    The State has won the NYCO lawsuit. The court has dissolved the temporary restraining order and dismissed the lawsuit. Here is the decision:

    Thomas D. Buchanan, J.

    Petitioners/Plaintiffs (for ease of reference, hereinafter “Petitioners”) have brought this combined CPLR Art. 78 proceeding and declaratory judgment action to challenge the issuance of a temporary revocable permit (“TRP”) allowing defendant/respondent NYCO Minerals, Inc. (“NYCO”) to conduct mineral sampling on a 200-acre parcel of property lying within the Jay Mountain Wilderness Area and the Adirondack Forest Preserve, known as Lot 8. The antecedent to the issuance of the TRP was passage of Proposal Number 5 (“Prop 5”), which was placed on the ballot for the November 2013 election after being passed by both houses of the Legislature in 2012 and 2013 as required by the New York Constitution (NY Const art XIX §1). The effect of Prop 5 was to amend New York Constitution article XIV §1, known as the “Forever Wild” provision. Following the passage of Prop 5, defendants/respondents Adirondack Park Agency (“APA”) and Department of Environmental Conservation (“DEC”) took several steps, including amendment of the Jay Mountain Wilderness Unit Management Plan (“UMP”) a SEQRA review, and ultimately, the issuance of the TRP. All of those actions are challenged here by Petitioners.

    The prayer for relief in the Verified Petition and Complaint seeks judgment declaring the actions of APA and DEC to be “unlawful, null, void, and of no effect,” as well as injunctive relief preventing the agencies from implementing or enforcing the various steps they took and preventing NYCO from taking any action related to mineral sampling on Lot 8. Six causes of action/claims are presented, but they rest on four legal arguments, which coordinate with permissible “questions raised” under Article 78 (CPLR §7803).

    Abrogation and Implied Repeal. One core point of argument between the parties bears addressing at the outset, as it affects the majority of the points being made on both sides. Petitioners take issue with DEC’s response to public comments received on the proposed amendment to the Jay Mountain Wilderness Unit Management Plan (“UMP”), taking a position which Respondents [*2]continue to advance in this proceeding. Respondents argue that by amending the New York Constitution, Prop 5 operated to abrogate existing prohibitions on mineral sampling in the Adirondack Park Agency Act, the Environmental Conservation Law and the State Land Management Plan (“SLMP”). Respondents contend, however, that only those specific provisions which prohibit mineral sampling in the Forest Preserve are abrogated, leaving the remainder intact.

    Petitioners make two alternative arguments against this position, which distill to a single proposition: either Prop 5 abrogates the relevant statutes in their entirety or it abrogates nothing at all. On one hand, Petitioners argue in their Memorandum of Law that if, as Respondents assert, Prop 5 abrogates a statute, “the entire statute is nullified, equally and permanently as to all affected entities.” From this premise, Petitioners argue that the Environmental Conservation Law and the Adirondack Park Act would be completely stripped away, leaving DEC and APA without jurisdictional bases for their actions. Petitioners also argue that abrogation deprives the agencies of statutory guidelines for their actions, rendering the amendment of the UMP and the concomitant issuance of the TRP to NYCO arbitrary and capricious. On the other hand, Petitioners argue that existing legislation was not actually abrogated, because it could be harmonized with Prop 5 if DEC simply denied a permit to NYCO. Therefore, the grant of the TRP was in violation of existing prohibitions and thus affected by an error of law.

    It is perhaps worth noting that two distinct terms have been used by the parties. One term is “abrogation” and the other is “implied repeal”. The cases cited by the parties, as well as others consulted by the Court, use with the term “abrogation” in the context of a conflict between a constitutional provision and a statute, while “implied repeal” refers to the effect of new legislation on existing statutes. Leaving aside any analytical distinctions between constitutional abrogation and implied repeal by later legislation, however, case law supports Respondents’ theory.

    Petitioners cite Durante v. Evans (94 AD2d 141 [3d Dept 1983]) as dictating complete abrogation. The Durante opinion, however, does not actually support Petitioners’ argument. In that case, the court held that constitutional amendments had given the power to appoint certain county officials to the Chief Administrative Judge of the Courts. The court’s holding ends with this statement, “… and we declare void those portions of sections 911 and 912 of the County Law which provide to the contrary” (Id. at 146). The Durante court did not sweep away the entire County Law. Indeed, the language used actually left room for portions of the individual sections cited to remain viable. Likewise, in a foundational case cited in Duarte (Charles W. Sommer & Bro., Inc. v. Albert Lorsch & Co., Inc., 254 NY 146 [1930]), the Court of Appeals held that a single clause from one subdivision of one section of a statute was abrogated.

    Case law also instructs that abrogation should not be lightly found. Four principles from cases cited by the parties appear to this Court to work in concert here. First, when construing Prop 5, the starting point is the language used in the amendment itself (People v. Carroll, 3 NY2d 686 [1958]). Second, before abrogation is found, the constitutional provision and the particular statute at issue must be found to be so repugnant that they “cannot both stand or be reconciled in any reasonable way [citation omitted]” (Amico v. Erie County Legislature, 36 AD2d 415 [4th Dept 1971]). Third, a constitutional amendment “… must be deemed to have been made in the light of and with consideration of existing legislation, and such legislation becomes operative in carrying out the constitutional provisions [citations omitted]” (Uhlmann v. Conway, 277 A.D. 478, 481 [3d Dept 1950]). Finally, “… no part of the Constitution should be construed so as to defeat its purpose or the [*3]intent of the people adopting it” (Pfingst v. State, 57 AD2d 163, 165 [3d Dept 1977].

    Cases discussing implied repeal apply a parallel analysis. New York courts have consistently instructed that the implied repeal of a statute by later legislation is a result not favored in the law and should be avoided, if possible, by interpreting the statues in a way that harmonizes them (see e.g. Matter of Town of North Hempstead v. County of Nassau, 24 NY3d 67 [2014]; Local Govt. Assistance Corp. v. Sales Tax Asset Receivable Corp., 2 NY3d 524 [2004]; Matter of Consolidated Edison Co. of New York, Inc. v. Dept. of Envtl. Conservation, 71 NY2d 186 [1988]; Alweis v. Evans, 69 NY2d 199 [1987]; Matter of Pharmaceutical Society of the State of New York, Inc. v. New York State Dept. of Social Services, 223 AD2d 58 [3d Dept 1996]).

    Applying these principles to the case at hand, Petitioners’ all-or-nothing position is exposed as fallacy. Petitioners’ proposition that abrogation must be total is contrary to the rulings in the Durante and Sommer cases. Petitioners’ proposition that Prop 5 can be harmonized only by denying a permit to NYCO is contrary to the intent of those adopting Prop 5, as expressed in the language found on the face of the amendment. The language of Prop 5 is not arcane. The amendment states in a fairly straightforward manner that the State may authorize NYCO to conduct mineral sampling on Lot 8. As a duly adopted provision of the Constitution, Prop 5 has priority over statutory provisions and administrative policies that are repugnant to it. However, care must be taken to harmonize, rather than to void, either law or policy that is not repugnant to Prop 5. Therefore, insofar as the Adirondack Park Act, the Environmental Conservation Law, the SLMP and the UMP specifically prohibit the State from authorizing NYCO to conduct mineral sampling on Lot 8, those provisions are abrogated. All statutory provisions and administrative policies that do not specifically prohibit the State from authorizing NYCO to conduct mineral sampling on Lot 8 are not abrogated. They continue in full force and effect and must be utilized by the State in carrying out its functions. With these conclusions in mind, the questions for consideration under Article 78 will be examined in the order presented by Petitioners.

    1. Respondents Have Proceeded or Are About to Proceed in Excess of Their Jurisdiction. Petitioners start from the proposition that agencies of state government must act in accordance with their enabling statutes, a point that is not disputed by Respondents and has been referred to by the Court of Appeals as “axiomatic” (Matter of New York State Superfund Coalition, Inc. v. New York State Dept. of Envtl. Conservation, 18 NY3d 289, 294-95 [2011]). Petitioners argue that Respondents have acted in excess of their jurisdiction because the Legislature has not enacted enabling legislation to permit the actions they have taken. Petitioners assert that enabling is necessary for two reasons. First, Petitioners point out that neither Respondents’ existing enabling statutes — the Adirondack Park Agency Act and the Environmental Conservation Law — nor the State Land Management Plan (“SLMP”) permit mineral sampling in the Forest Preserve. Second, they argue that Prop 5 is not self-executing.

    The parties do not dispute that legislation in place prior to the passage of Prop 5 prohibited mineral sampling on Lot 8. As the analysis above has shown, however, Prop 5 effected a slight, specific expansion of the jurisdiction of both the APA and DEC by allowing the State to authorize mineral sampling by NYCO on Lot 8. Existing prohibitions against mineral sampling were abrogated to the extent that they prevented the State from authorizing NYCO to conduct mineral sampling on Lot 8.

    Evaluation of Petitioners’ second point starts from the presumption that a constitutional [*4]amendment such a Prop 5 is self-executing (People v. Carroll, 3 NY2d at 691). Petitioners cite to the Carroll opinion, however, as providing three reasons why enabling legislation was required. Petitioners point out that the use of the word “may” in Prop 5 does not mandate that the State issue a TRP to NYCO, that Prop 5 does not “detail the method or procedures of implementation” and that the only way to effectuate Prop 5 in the context of existing legislation was for the State to deny a permit to NYCO.

    The analysis set out at the beginning of this Decision, Order and Judgment defeats Petitioners’ contentions. All applicable statutes and administrative policies not abrogated by Prop 5 remained in force, imposing various duties on those agencies in connection with the management of the Forest Preserve, including Lot 8. These included the pre-existing method and procedures for issuing a TRP. While there has been much argument by the parties over the meaning of “may” as being either mandatory or permissive, the Court finds that assuming the Prop 5 directive to be permissive does not assist Petitioners. From the record here, it is apparent that if DEC and APA had not fulfilled their pre-existing duties through means such as conducting the SEQRA review and imposing conditions on the TRP, including requirements for the Work Plan to be followed by NYCO, then the TRP would not have issued.

    In sum, because the enabling legislation for DEC and APA was not completely abrogated, the agencies had jurisdiction to take the actions complained of here. Petitioners’ claims premised on a lack of jurisdiction must be dismissed.

    2. Approvals of the UMP Amendment and the TRP were arbitrary, capricious, and an abuse of discretion. Petitioners assert that because any abrogation of law or policy effected by Prop 5 must have been complete, the agencies acted without any statutory or regulatory guidelines. Petitioners’ premise of total abrogation has been refuted, however, so that the conclusion they advance necessarily fails. Petitioners offer no other reasons for their characterization of the agencies’ actions as arbitrary, capricious or an abuse of discretion. Their claims based on this argument must be dismissed.

    3. The agencies’ determinations were affected by an error of law. Petitioners assert error of law based on the premise that none of the existing prohibitions against mineral sampling were actually abrogated by Prop 5 because existing law could be harmonized with Prop 5 by denying a permit to NYCO. The illogic of this argument has also been established. Petitioners’ solution is not really “harmonizing” at all, in that it would defeat the plain meaning of Prop 5. The claims based on this argument must be dismissed.

    4. DEC has failed to perform a duty enjoined upon it by law [SEQRA]. Petitioners allege that in performing a SEQRA review of NYCO’s proposed mineral sampling on Lot 8, DEC either disregarded or did not take the required “hard look” at factors to be considered under a regulation promulgated pursuant to SEQRA (6 NYCRR §617.7). Respondents point out that actions approved or permitted by the APA are subject to environmental review under the APA Act rather than SEQRA, so that this claim, found in the Petition/Complaint as the seventh cause of action, fails to state a claim against DEC (Matter of Assoc. for the Protection of the Adirondacks, Inc. v. Town Board of Town of Tupper Lake, 64 AD3d 825 [3d Dept 2009]). Nonetheless, the record shows that a SEQRA review was conducted by DEC. Respondents assert that the review was adequate and resulted in a number of conditions in the TRP issued to NYCO.

    A court reviewing a SEQRA determination is to determine whether the agency involved [*5]identified relevant areas of environmental concern, took a “hard look” at them and made a “reasoned elaboration” of the basis for its determination (Akpan v. Koch, 75 NY2d 561 [1990]). In doing so, the court may not substitute its own judgment for that of the agency (Matter of Regional Action Group for the Environment, Inc. v. Zagata, 245 AD2d 798 [3d Dept 1997]), but must instead decide whether the agency determination has a rational basis in the record (Matter of Hingston v. New York State Dept. of Envtl. Conservation, 202 AD2d 877 [3d Dept 1994]). The agency’s determination will be overturned if it is arbitrary or capricious (Town of Amsterdam v. Amsterdam Indus. Dev. Agency, 95 AD3d 1539 [3d Dept 2012]).

    Petitioners list seven “indicators of significant adverse impacts on the environment” from 6 NYCRR §617.7, which they assert as being either completely ignored or undervalued in DEC’s SEQRA review. The Court’s review of the record shows that all of these factors were indeed considered by DEC and that most resulted in conditions imposed in the final TRP. That Petitioners disagree with the level of scrutiny applied to particular factors is not determinative. “An agency’s compliance with its substantive SEQRA obligations is governed by a rule of reason and the extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals” (Akpan v. Koch, 75 NY2d at 570). On the record here, there was a rational basis for DEC’s determination that there would be no significant environmental impacts from NYCO’s mineral sampling on Lot 8, if the sampling operation is conducted as required under the terms of the TRP. Petitioners’ claim based on this argument must be dismissed, as well.

    The parties remaining contentions have been considered, but to not alter the outcome here.

    Therefore, in consideration of all the foregoing, it is hereby

    ORDERED, ADJUDGED AND DECREED, that the Temporary Restraining Order issued by this Court and entered by the Clerk on July 14, 2014 is hereby DISSOLVED, and the Undertaking posted by Petitioners is hereby DISCHARGED; and it is further

    ORDERED, ADJUDGED AND DECREED, that the Verified Petition and Complaint herein is hereby DISMISSED.




    Thomas D. Buchanan

    Supreme Court Justice

    Papers considered: