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THE ADIRONDACK PARK AGENCY PROPERLY ISSUED PERMITS FOR THE APPLICATION OF AN HERBICIDE IN LAKE GEORGE TO CONTROL AN INVASIVE AQUATIC PLANT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, reversing Supreme Court, determined the Adirondack Park Agency (APA) properly issued permits for the application of an herbicide (ProcellaCOR EC) in Lake George to control an invasive aquatic plant called Eurasian watermilfoil (EWM). Supreme Court had granted the Article 78 petition and vacated the permits. Applying black letter administrative law, the Third Department found no basis to overturn the APA’s ruling. The opinion is too fact-specific and detailed to fairly summarize here:

… [W]here an agency’s determination was rendered without a fact-finding hearing, a court’s review is limited to “whether [the] determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3] …). In performing such review, “[i]t is well settled that a court cannot substitute its view of the factual merits of a controversy for that of the administrative agency” … . And, when “the judgment of the agency involves factual evaluations in the area of the agency’s expertise and is supported by the record, such judgment must be accorded great weight and judicial deference” … . Indeed, “[i]f a determination is rational it must be sustained even if the court concludes that another result would also have been rational” … .

Although an agency acts arbitrarily and capriciously when it fails to conform to its own regulations, an agency’s interpretation of its own regulations is entitled to deference if that interpretation does not contradict the plain language of the regulations and is not irrational or unreasonable … . Matter of Lake George Assn. v NYS Adirondack Park Agency, 2024 NY Slip Op 02356, Third Dept 5-2-24

Practice Point: Black letter administrative law for the review of an agency’s determination when there was no fact-finding hearing was applied here. The Adirondack Park Agency’s issuance of permits for the application of an herbicide in Lake George was upheld.

 

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