Unreported Disposition
NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN THE REPORTER.
ROBERT F. QUINLAN, J.
*1 ORDERED that the petitions in this combined action brought on by Order to Show Cause dated May 12, 2016 and August 23, 2016, are denied and this proceeding is dismissed.
FACTUAL AND PROCEDURAL HISTORY
Petitioner Virginia Frati (“Frati”) holds a Wildlife Rehabilitation License (“WRL”) issued by respondent New York State Department of Environmental Conservation (“respondent” or “DEC”). A WRL License is a special license authorizing licensees to temporarily possess distressed wildlife for rehabilitation so that they be returned to the wild. Respondent made statewide modifications to all Wildlife Rehabilitation Licenses, including Frati's, effective February 10, 2016 and June 16, 2016.
On May 12, 2016 petitioner Evelyn Alexander Wildlife Rescue Center Inc.,1 commenced this Article 78 proceeding by Order to Show Cause (Action No.1) challenging certain of the statewide modifications to the WRL which became effective February 10, 2016, including the modification that white-tailed deer fawns shall only be possessed for rehabilitation from April 15 to September 15 (the “February 10, 2016 modification” or “WRL 14”). A hearing on the Order to Show Cause and request for a temporary restraining order preventing respondent from enforcing the modifications statewide was held on May 12, 2016. The court signed the order to show cause and issued a limited Temporary Restraining Order (“TRO”) enjoining respondent from enforcing the February 10, 2016 modifications solely with respect to the one white tailed deer in petitioners' custody. By order dated July 29, 2016 the court dismissed the petition finding that subsequent modifications to the Wildlife Rehabilitation License, made by respondent on June 16, 2016, rendered the questions presented in the petition academic.
On August 23, 2016 petitioners commenced a second action by Order to Show Cause (Action # 2; Index No. 8229/2016) against respondent challenging inter alia the June 16, 2016 revision to the February 10, 2016 statewide modification. Initially the February 10, 2016 modification established a prohibition on the rehabilitation of adult white-tailed deer; the June 16, 2016 revision authorized possession of adult white-tailed deer by licensed wildlife rehabilitators for up to 48 hours (the “June 16, 2016 modification” or “WRL 15”).2 Petitioners also sought, and were granted, a TRO authorizing them to continue holding the one white tailed deer in their custody (the same deer that was the subject of the initial TRO in Action # 1). In response to the petition respondent cross-moved to consolidate Action # 2 with a third action pending in Erie County, Supreme Court (Martin, et al. v. New York State Department of Environmental Conservation, Index No. 806606/2016) and for a stay of proceedings.
While Action # 2 was pending petitioners moved in Action # 1 by notice of motion dated October 4, 2016 to renew and reargue the court's July 29, 2016 decision, and for an order consolidating the 2 Suffolk County actions. By order dated December 22, 2016 (Devlin, J .) the Erie County action was dismissed, rendering respondent's cross-motion in Action # 2 moot. By order dated January 9, 2017 the court granted petitioner's motion to re-argue, limiting re-argument in Action # 1 to a single modification of the WRL license: the February 10, 2016 Condition 14 of the Wildlife Rehabilitation License entitled “Rehabilitation of White-tailed Deer Fawns and Moose Calves,” consolidated the 2 Suffolk County actions and set a briefing schedule.
Action # 1
*2 The court first turns to petitioners' challenge to the February 10, 2016 statewide modification to the Wildlife Rehabilitation License referred to as WRL 14, entitled “Rehabilitation of White-tailed Deer Fawns and Moose Calves.” This modification states white-tailed deer fawns shall only be held for rehabilitation from April 15 to September 15 and prohibits possession after September 15 unless the holder of the WRL license obtains the prior written approval of respondent.3
Petitioner contends that this modification to the Wildlife Rehabilitation License changed the primary purpose of a wildlife rehabilitator. Petitioner argues that the modification should be deemed void ab initio as it was not properly established pursuant to State Administrative Procedures Act (SAPA) since respondent failed to accept comment or conduct public hearings. Further petitioner argues that the modification is irrational, arbitrary, capricious and an abuse of discretion. Additionally, petitioners argue that respondent improperly modified the license by failing to prepare an environmental impact statement pursuant to the State Environmental Quality Review Act (SEQRA) and further, that WRL 14 constitutes an impermissible regulatory taking. In support of its application petitioner submits a verified petition and numerous exhibits including inter alia Frati's WRL License, the February 10, 2016 license with modifications, a March 4, 2016 letter from Southampton Town Police, public petitions and a news article from the Southampton Press.
In opposition respondent submits its verified answer, the affirmations of counsel, the affidavit of Joseph E. Therrien, a Wildlife Biologist II assigned to DEC's Special Licenses Unit within the Division of Fish, Wildlife and Marine Resources sworn to June 15, 2016, and the administrative record. Respondent contends the modification is intended to prevent the animal from becoming habituated, to prevent the spread of chronic wasting disease and to address the growing concern with wildlife rehabilitators in New York State who are reluctant to either release or euthanize animals held for rehabilitation. Further, respondent contends the modification is consistent with statutory and regulatory intent. Petitioners submit a reply.
STATE ADMINISTRATIVE PROCEDURES ACT
Initially the court addresses petitioners' claim that the February 10, 2016 modification is an administrative rule which should have been enacted in accordance with the rule-making procedures set forth in State Administrative Procedures Act (SAPA), or is instead, as respondent argues, an interpretive statement excluded from the rule making requirements pursuant to SAPA § 102 [2][b][iv] (see Matter of Elcor Health Servs. v. Novello, 100 N.Y.2d 273 [2003] ). A “rule” is defined by SAPA to include “the whole or part of each agency statement, regulation or code of general applicability that implements or applies law,” but excludes “interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory” (SAPA § 102[2][a][i]; [b][iv] ). There is no clear bright line between a rule and an interpretative policy (Cubas v. Martinez, 8 NY3d 611 [2007] ). An agency does not engage in formal rulemaking when the practical effect of an agency's updated policy is that a discrete group of regulated entities or individuals likely will be subjected to a greater degree of regulatory scrutiny than are the majority of those regulated by the agency (see Cubas v. Martinez, supra; Matter of Entergy Nuclear Indian Point 2, LLC v. New York State Dep't of State, 130 AD3d 1190 [3d Dept 2015] ).
*3 Environmental Conservation Law (“ECL”) §§ 11–0105 establishes that the State of New York owns all fish, game and wildlife in the state except those legally acquired and held in private ownership. ECL §§ 11–0107(2) and 11–0917(10) provide that all wildlife, game and protected wildlife can only be possessed, transported or sold according to the terms of any statute, or regulation, permit or license issued by DEC pursuant to which the wildlife was taken or acquired. ECL §§ 11–0515(3) authorizes DEC to issue Wild Life Rehabilitation licenses to individuals to possess certain distressed wildlife for rehabilitation purposes. The purpose of wildlife rehabilitators is to establish a specially trained group of individuals to provide for the care of injured and debilitated wildlife so that such wildlife may be returned to the wild (emphasis supplied) 6 NYCRR § 184.1(a). Rehabilitation is defined as the practice of providing care for injured or debilitated wildlife, including their capture, housing, feeding, emergency treatment and release to the wild (emphasis supplied) 6 NYCRR § 184.2(f).
Both the wildlife rehabilitation license issued to Frati in 2015 and the modified WRL issued February 10, 2016 contain numerous conditions, including:
WRL—Release of Rehabilitated Animals to the Wild Wildlife that has been successfully rehabilitated shall be immediately released to the wild as per Condition:
WRL—All—Release of Rehabilitated Animals to the Wild Requirements, of this license. This license does not authorize permanent possession of wildlife (emphasis supplied).
WRL—Disposition of Non—Releasable Wildlife Wildlife deemed to be incapable of surviving if released to the wild shall be euthanized or, except white-tailed deer, black bear and moose, may be transferred to an individual who possesses a valid license to possess such live, non-releasable animal.
As the record established, wildlife rehabilitators have never been authorized to permanently possess wildlife. The intent of the statutes and regulations, as well as the conditions set forth in the license, are clear: a licensed wildlife rehabilitator is authorized to rehabilitate and release, or euthanize in certain circumstances, but permanent possession by a wildlife rehabilitator was never permitted. The February 10, 2016 modification which established a limitation on the time frame for holding fawns for rehabilitation from April 15–September 15 was based upon scientific research indicating that rehabilitation of fawns is generally the result of orphaned or abandoned animals who require nutrition and experience until they can survive on their own. The majority of cases involving the rehabilitation of fawns begin in the late spring to early summer, therefore establishing the release date of September 15 allows for adequate care while preventing an increased chance of transmission of disease as well as an increased chance of taming or habituation. Moreover, respondent included a provision in this modification which gives wildlife rehabilitators the ability to request additional time for holding a fawn beyond the September 15 release to address those fawns born later in the season who may require additional rehabilitative care.
*4 The evidence in the record established the February 10, 2016 modification for possession of fawns and adult white-tailed deer is an interpretive, explanatory statement for meeting the regulatory requirement that wildlife rehabilitators provide care for injured or debilitated wildlife and release them to the wild, which modification has no legal effect standing alone (see Matter of Elcor Health Servs. v. Novello, 100 N.Y.2d 273 [2003] ). It is a reasonable and rational interpretation of rehabilitation under the existing statutory and regulatory framework (see Matter of Entergy Nuclear Indian Point 2, supra ) which did not impose any new obligations on licensees (see Cubas, supra ). For the foregoing reasons respondent's February 10, 2016 modification to the Wildlife Rehabilitators License did not violate the State Administrative Procedure Act.
ARBITRARY AND CAPRICIOUS STANDARD
In considering an Article 78 proceeding pursuant to CPLR § 7803(3) to determine whether a determination was arbitrary and capricious, the Court must inquire as to whether the determination had a rational basis and a determination should not be disturbed unless the record shows that the agency's action was arbitrary, unreasonable, irrational or indicative of bad faith (see Halperin v. City of New Rochelle, 24 AD3d 768 [2d Dept 2005] ). An arbitrary determination is one that is without a sound basis in reason, made without regard to the facts (see Matter of Gottlieb v. City of New York, 129 AD3d 724 [2d Dept 2015]; Matter of Wooley v. New York State Dept. of Correctional Servs., 15 NY3d 275 [2010]; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222 [1974] ) A court may not substitute its judgment for that of the agency responsible for making the decision (see Pell v. Bd. of Educ., supra; Ball v. New York State Department of Environmental Conservation, 35 AD3d 732 [2d Dept 2006] ). The interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if that interpretation is not irrational or unreasonable (see Gaines v. New York State Div. of Hous. & Cmty. Renewal, 90 N.Y.2d 545 [1997] ).
Contrary to petitioners' assertions the February 10, 2016 statewide modification to the Wildlife Rehabilitation License was neither arbitrary, capricious nor an abuse of discretion. The affidavit of respondent's biologist, Joseph E. Therrien, showed respondent began its review of the terms and conditions of the Wildlife Rehabilitation Licenses in early 2015. This review was conducted by respondent's “Big Game Team,” a group of regional and central office wildlife biologists and law enforcement liaison, to address a number of issues of concern to respondent including wildlife becoming habituated to humans; controlling and containing the spread of chronic wasting disease; as well as a documented pattern of licensed wildlife rehabilitators in New York who have been reluctant to either euthanize or release white-tailed deer. As set forth above, the February 10, 2016 modification which established a limitation on the time frame for holding fawns for rehabilitation from April 15–September 15 was based upon scientific research which indicated cases involving orphaned or abandoned fawns generally begin in the late spring to early summer, therefore establishing the release date of September 15 allows for adequate care while preventing an increased chance of transmission of disease as well as taming or habituation. Additionally, the court notes the September 15 ‘deadline’ for releasing fawns is not a fixed deadline as the modification includes a provision which allows wildlife rehabilitators to request holding an animal beyond September 15 for those fawns born later in the season who may require additional rehabilitative care. Thus the record establishes that DEC's decision to modify the license (February 10, 2016 modification—WRL 14) is reasonable and has a rational basis, and is in keeping with the purpose of the statutes and regulations.
SEQRA
*5 The court turns next to petitioner's argument that the February 10, 2016 modification was in violation of the State Environmental Review Act (“SEQRA”). SEQRA mandates the preparation of an Environmental Impact Statement (“EIS”) for any action proposed or approved by a governmental agency that may have a significant effect on the environment (ECL § 8–0109[2] ). Expressly excluded from the definition of the word ‘action,’ and therefore excluded from SEQRA, are official acts of a ministerial nature involving no exercise of discretion (see Filmways Communications of Syracuse v. Douglas, 106 A.D.2d 185 [4th Dep't 1985], aff'd 65 N.Y.2d 878 [1985] ). In determining whether an act is ministerial, and thus involves no discretion, the court must determine whether the information required in an EIS would form the basis for a decision whether or not to undertake or approve the action (see Filmways, supra; Incorporated Village of Atlantic Beach v. Gavalas, 81 N.Y.2d 322 [1993] ). When an agency has some discretion, but that discretion is circumscribed by a narrow set of criteria which do not bear any relationship to the environmental concerns that may be raised in an EIS, its decisions will not be considered an “action” for purposes of SEQRA's EIS requirements (Incorporated Village of Atlantic Beach v. Gavalas, supra ).
The issuance of a Wildlife Rehabilitation License is a ministerial action exempt from environmental review under SEQRA. While the language in ECL § 11–0515[3] provides that respondent ‘may’ issue a revocable license to possess distressed wildlife for rehabilitation purposes, the regulations set forth a discrete set of qualifications that an applicant for a WRL must possess. Those qualifications include, among other things, an age requirement, residency in New York State, a minimum score on a written examination, and a criminal background check (6 NYCRR 184). Where, as here, DEC has the discretion to ‘act’ in issuing a Wildlife Rehabilitation License, but that discretion is restricted by the application of a discrete set of criteria which have no relationship to the environmental concerns raised in an EIS, it is not an ‘action’ under SEQRA. Petitioners argument that the modifications became effective overnight, even if true, has no bearing on the applicability of SEQRA or the preparation of an EIS.
TAKING
Finally, petitioners claim the February 10, 2016 modification to the Wildlife Rehabilitation License constitutes an impermissible regulatory taking is without merit.
As stated earlier, ECL § 11–0105 clearly establishes that the State of New York owns all fish, game, and wildlife and the right of the State to protect wild animals is too well established to be called into question (see Barrett v. State, 220 N.Y. 423 [1917] ). Any purported right petitioners allege over wildlife is not a property right protected by due process. Rather, petitioner's license is a personal privilege that does not confer any vested right in the licensee and is subject to reasonable restrictions by the issuing authority (see Testwell, Inc. v. New York City Dep't of Buildings, 80 AD3d 266 [1st Dept 2010]; Matter of Lap v. Axelrod, 95 A.D.2d 457 [3d Dept 1983], lv denied, 61 N.Y.2d 603 [1984] ). Because there is no vested right, the State may change the right to hold a license which it has granted or the conditions under which it may be held (Lap v. Axelrod, supra ). Therefore, respondent was within its authority to modify the license, the modification was reasonable, and contrary to petitioners' assertions the modification did not constitute a regulatory taking.
Action # 2
*6 The court turns next to the June 16, 2016 statewide revised modification to the Wildlife Rehabilitation License involving adult white-tailed deer. As initially written in the modified WRL issued by respondent effective February 10, 2016 (and challenged in Action # 1) the modification prohibited the possession of adult white-tailed deer for rehabilitative care. Then, effective June 16, 2016, respondent revised that modification to permit the possession of adult white-tailed deer for a period not to exceed 48 hours. Specifically, WRL 15 states:
White-tailed Deer Rehabilitation of Adults Restricted
The licensee may possess adult white-tailed deer (Odocoileus virginianus ) for the purpose of rendering assistance or transporting for euthanasia provided that such possession does not exceed 48 hours. Within 48 hours of taking possession of an adult white-tailed deer the licensee shall either release or euthanize the white-tailed deer.
This revised modification is the subject of the petition in the Action # 2 (Index No. 8229/2016) which Action was consolidated with Action # 1 (Index No. 4818/2016) by order dated January 9, 2017.
As with the modification that was the subject of Action # 1, petitioner contends that this revised modification amounts to a rule within the meaning of the State Administrative Procedure Act (SAPA) and is void ab initio as it was not promulgated in compliance with SAPA as petitioners were not given notice, there was no public hearing or opportunity to provide public comment. As with Action # 1 petitioners also claim the revised modification is an abuse of discretion, arbitrary and capricious and unsupported by the evidence. Petitioners submit their order to show cause, verified petition, memorandum of law and numerous documents in support.
In opposition respondent submits its verified answer, the administrative record, the affirmations of counsel, the affidavit of Joseph E. Therrien, a Wildlife Biologist II assigned to DEC's Special Licenses Unit within the Division of Fish, Wildlife and Marine Resources, affidavit of James F. Farquhar III, Chief Wildlife Biologist at DEC's Bureau of Wildlife and memorandum of law. Respondents contend the modification is intended to prevent the animal from becoming habituated, to prevent the spread of chronic wasting disease and to address the growing concern with wildlife rehabilitators in New York State who are reluctant to either release or euthanize the animal. Further, respondent contends the modification is consistent with statutory and regulatory intent. Petitioners submit a memorandum of law in reply.
Through its submissions respondent sets out the timeline, and the reasoning, in support of the initial modification which prohibited the possession of adult white-tailed deer for rehabilitation. The original modification was part of the same review discussed above which respondent began in January 2015 that modified the time frame for rehabilitation of white-tailed deer fawns. After its review the Big Game Team made its recommendation prohibiting the rehabilitation of adult big game species, since the Team determined, among other things, that in the vast majority of situations sick or injured adult big game species that are not mobile enough to avoid capture are too debilitated to be rehabilitated, as well as the low survival rate for adult white-tailed deer received for rehabilitation. In concluding initially that rehabilitation of adult white-tailed deer should be prohibited respondent determined that the risks associated with capturing and handling adult big game species outweighed any practical need to rehabilitate these species, particularly because the species are abundant and well established in New York.
*7 These formal recommendations were reviewed by respondent's Division Management Team in December 2015 and the modified license conditions for all DEC-issued wildlife rehabilitation licenses were drafted, license holders were notified, and the modifications became effective February 2016. Following the initial license modification prohibiting possession of adult white-tailed deer for rehabilitation several members of the wildlife rehabilitation community expressed concern because the modification, as written, prohibited even the transport of an injured adult deer to another location for euthanasia. Additionally, some injured adult deer can be temporarily stunned but otherwise not badly injured and may recover if removed and held for a short time before release. Based on the input received, DEC revised the modification and issued WRL 15 effective June 2016 authorizing possession of adult white-tailed-deer for up to 48 hours. This time frame was deemed sufficient to determine whether a deer should be either euthanized due to the extent of injury or released to the wild, and represented an acceptable compromise to DEC concerns regarding disease transmission as well as the risks associated with handling injured adult white-tailed deer. The revised modification is consistent with statutory and regulatory intent.
The June 16, 2016 revised modification authorizing possession of adult white-tailed-deer by licensed wildlife rehabilitators for up to 48 hours is an interpretive, explanatory statement which has no legal effect standing alone (see Matter of Elcor Health Servs. v. Novello, 100 N.Y.2d 273 [2003] ). It is a reasonable and rational interpretation under the existing statutory and regulatory framework (see Matter of Entergy Nuclear Indian Point 2, LLC v. New York State Dep't of State, 130 AD3d 1190 [3d Dept 2015] ) which did not violate the State Administrative Procedure Act.
Finally, in accordance with the reasoning set forth above the court concludes that the June 16, 2016 revised modification authorizing possession of adult white-tailed-deer by licensed wildlife rehabilitators for up to 48 hours was neither arbitrary, capricious nor an abuse of discretion. The revised modification has a rational basis as it allows for the care of adult white-tailed deer temporarily stunned and in need of a short rehabilitation thereby affording the animal time to stabilize and be released. Additionally, it is consistent with the evidence in the record that an adult deer unable to stabilize within the 48–hour window is unable to be successfully rehabilitated.
The court notes that at this time the adult white-tailed deer that was the subject of the TRO in Action # 1 and Action # 2 has been in petitioners' possession for more than one year, the precise length of time is unable to be calculated as the exact date the animal came into petitioners' possession was never divulged. As the statute, regulations and license conditions make clear the purpose of wildlife rehabilitation is to rehabilitate and release, permanent possession is not authorized. As noted in the court's decision of July 29, 2016 it appears petitioners have four options with respect to the white-tailed deer in its possession: release the deer, euthanize the deer, surrender it to DEC, or transfer the deer to someone with a license to possess the animal. The parties should be guided accordingly.
*8 Based on the foregoing, the petitions in this consolidated action are denied in their entirety and the proceeding dismissed.
Submit judgment on notice.
Footnotes
1 Virginia Frati was added as a petitioner pursuant to stipulation.
2 Pursuant to stipulation dated September 14, 2016 the parties discontinued claims five and six of the verified petition in Action # 2 which involved petitioner Frati's application to amend her License to Collect or Possess as well as a claim involving petitioners' FOIL request.
3 Only those submissions in Action # 1 were considered by the court in its review of WRL 14 as it is well established that new facts may not be submitted or considered by the court on a motion to reargue (see James v. Nestor, 120 A.D.2d 442 [1st Dept.1986]; Philips v. Village of Oriskany, 57 A.D.2d 110 [4th Dept.1997] ).