Guptill Holding Corp. v. Williams ( 1988 )

Yesawich, Jr., J.

(dissenting). I disagree with the majority’s assessment that DEC’S Life of Mine Review Policy is not a rule or regulation within the constitutional filing requirement (see, NY Const, art IV, § 8). The so-called policy, promulgated by an internal memorandum, states that it "shall be implemented immediately for all permit applications” (emphasis supplied). Continuing in a prescriptive vein, it dictates that currently permitted mining operators who apply for a one-year permit (the only other option, excepting special circumstances, is a three-year permit) "will be required to submit a mined land use plan and will be subjected to a comprehensive [SEQRA] determination of significance made on the life of the mining operation” (emphasis supplied) the year following implementation of the policy. Currently permitted mine operators who apply for a three-year permit and new applicants "shall be subjected to environmental assessment and review pursuant to [SEQRA] for a period of time that covers the life of the mine from April 1, 1975 until reclamation has been completed, if such an assessment has not been made in the past” (emphasis supplied).

Regardless of how it is labeled, the term "rule or regulation” as employed in the filing requirement "embraces any kind of legislative or quasi-legislative norm or prescription which establishes a pattern or course of conduct for the future” (People v Cull, 10 NY2d 123, 126). The Life of Mine Review Policy falls squarely within this definition and outside of any recognized exception (see, NY Const, art IV, § 8; see also, State Administrative Procedure Act § 102 [2] [b] [i]), and directly affects " 'that segment of the "general public” over which [the administrative agency] exercises direct authority’ ” (Matter of Krauskopf v Perales, 139 AD2d 147, 151, quoting Matter of Connell v Regan, 114 AD2d 273, 276) in that it mandates what information a mine operator must supply to even have its permit application considered. In addition, as noted in the memorandum itself, the expanded inquiry results in subjecting mine operators such as petitioner to a more extensive SEQRA review than previously required. What DEC has done is to prescribe a fixed general procedure which it applies without regard to other facts and circumstances, the clear indicia of a rule or regulation (see, Matter of Roman Catholic Diocese v New York State Dept. of Health, 66 NY2d 948, 951; State Administrative Procedure Act § 102 [2] [a]).

The majority erects too narrow a standard when it suggests that only rules which dictate the result of administrative review need be filed. In this respect it bears noting that courts have been admonished not to strive to read exceptions into the filing requirement to permit agencies to avoid the necessity for complying by the simple device of labeling what is essentially a rule, a statement of policy or the like (People v Cull, supra, at 129). Every rule as dispositive as the majority envisions, i.e., which foredooms the application, most assuredly must be filed (see, e.g., Matter of Sturman v Ingraham, 52 AD2d 882, 885), but not all rules coming within the People v Cull (supra) definition in and of themselves determine the result of an administrative decision (see, e.g., Matter of Callanan Indus. v White, 118 AD2d 167, 171, lv denied 69 NY2d 601). It is the absence of discretion which distinguishes a rule which must be filed from one which need not (compare, Matter of Tenenbaum v Axelrod, 132 AD2d 37, 39, appeal dismissed 71 NY2d 950, with Matter of Hudson Val. Nursing Center v Axelrod, 130 AD2d 862, 866; see also, Matter of Williams v Smith, 72 NY2d 939). On its face there is no room for discretion in DEC’s application of its all-encompassing Life of Mine Review Policy; it is precisely this type of regulation which should be filed in a central place to give notice to that portion of the public whose interests are affected thereby (see, Matter of Jones v Smith, 64 NY2d 1003, 1006).

Even accepting the majority’s narrow view of the filing requirement, the Life of Mine Review Policy is as determinative as any procedure can be. Failure to satisfy the apparently onerous information requirement forecloses issuance of a mining permit, and compliance, at a minimum, inevitably necessitates a delay in acquiring the permit.

I do not question the wisdom of the Life of Mine Review Policy, but if a procedure with such obvious and broad-ranging consequences need not be filed then NY Constitution, article IV, § 8 has been effectively gutted and the public need be put on notice of only a small fraction of administrative legislation. A constitutional provision should not succumb to a regulation, however salutary it may be. Because DEC did not provide the constitutionally required notice before implementing the Life of Mine Review Policy (see, NY Const, art IV, § 8; see also, State Administrative Procedure Act § 202; ECL 23-2721 [2]), the policy should not be binding upon petitioner, and, accordingly, I vote to reverse the judgment and grant the petition to the extent of requiring DEC to reconsider petitioner’s application without resort to the Life of Mine Review Policy.

Mahoney, P. J., Casey and Mercure, JJ., concur with Levine, J.; Yesawich, Jr., J., dissents and votes to reverse in an opinion.

Judgment affirmed, with costs to respondents.