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Pierce, Sr., Charles - Commissiner Ruling, June 9, 1995

Commissioner Ruling, June 9, 1995

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of the -

alleged violations of the Environmental Conservation Law Article 24 and Title 6 of the
Official Compilation of Codes, Rules and Regulations of
the State of New York Part 663 (Freshwater Wetlands)

- by -

CHARLES PIERCE, SR.

4930 WEBSTER ROAD
FREDONIA, NY

Respondent

Case No. 93-2

R9-4017-93-09

RULING ON MOTION FOR RECONSIDERATION

June 9, 1995

Ruling on Motion for Reconsideration

On February 4, 1995, the Commissioner issued an order (the "Order") in the captioned matter in which, among other matters, he found the Respondent in violation of the Environmental Conservation Law ("ECL") 24-0701(2) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York 663.4, for spreading stone fill in the adjacent area of a freshwater wetlands. That Order, among other things, dismisses charges that the Respondent violated ECL 24-0701(2) by clear-cutting trees or vegetation and by sowing grass seed. By letter of April 20, 1995, the Staff of the New York State Department of Environmental Conservation ("Staff") filed a motion for reconsideration of those dismissals. By letter from his attorney, Jonathan D. Estoff (Miserendino, Celniker, Seegert & Estoff, P.C., 964 Ellicott Square Building, Buffalo, New York) Mr. Pierce filed in opposition to the Staff's motion.

There is no provision set out for reconsideration either in the ECL or 6 NYCRR Part 622. Nevertheless, reconsideration is sometimes appropriate, as where the decision-maker overlooked or misapprehended the facts or law, or for some other reason mistakenly arrived at a decision (Mayer v. National Arts Club, 192 A.D.2d 863).

Motions for reconsideration have historically been entertained by the Commissioner on a limited basis (for rulings resolving motions for reconsideration of final decisions of the Commissioner see eg. In the Matter of the Application of Hyland Facility Associates, Ruling on Motion for Reconsideration, Dated May 11, 1994, In the Matter of Bitses, Decision on Motion to Reargue, Dated March 27, 1992 and In the Matter of the Application of Foster Wheeler - Broom County, Inc., Supplemental Decision, Dated July 16, 1992). However, the resulting rulings have invariably been limited to clarifying the underlying decision. Rulings of the ALJ, on the other hand, are not final decisions of the agency and are thus more commonly granted reconsideration (see eg. the ALJ's ruling In the Matter of Mt. Hope Asphalt Corp. et al., Ruling on Motion for Reconsideration, Dated July 12, 1994).

An agency may correct an error by setting aside a final agency decision only in limited situations, as when that decision was the result of illegality, irregularity in vital matters, or fraud (Cupo v. McGoldrick, 278 A.D. 108). "Public officers or agents who exercise judgment and discretion in the performance of their duties may not revoke their determinations nor review their own orders once properly and finally made, however much they may have erred in judgment on the facts, even though injustice is the result. A mere change of mind is insufficient" (Id. at 112, also see Greene v. Diamond, 75 Misc.2d 724).

Even if granted, reconsideration does not constitute an opportunity to reargue points that were already considered and rejected by the decision maker (In the Matter of Applications of Pete Drown, Inc., Second Interim Decision, Dated April 18, 1994). Although in certain cases reconsideration may be appropriate this is not such a case. The motion for reconsideration is denied.

As part of its motion Staff asked that I clarify the applicability of the agricultural exemption, that the law and regulations restrict mowing and cutting of vegetation and trees in a wetland and adjacent area, and that the law and regulations restrict activities in a wetland and adjacent area. In the Order the Commissioner concurred without comment with the Findings of Fact, Conclusions and Recommendations set forth in ALJ Owen's Hearing Report. Since there appears to be some confusion regarding that Order, the following is offered as clarification. This clarification in no way modifies my original Order.

Clear-cutting Trees

The ALJ found that there was insufficient evidence that Pierce clear-cut trees in the adjacent area or wetland. As a consequence the Report recommended that the charge of clear-cutting trees be dismissed. The record demonstrates that there was a failure of evidence to establish the elements needed to show a clear-cutting had occurred (eg. Staff witness' testimony as to the diameter of the tree cut by Pierce was in apparent conflict with photographic evidence and was not accepted by the ALJ; Staff made no attempt to establish the basal area of trees measured within the harvested area). My dismissal was issued in response to Staff's failure to prove the alleged violation.

Since this determination was dispositive of the charge, the ALJ's characterization of Respondent's action as "selective cutting" was viewed as gratuitous dicta, and thus inappropriate to be addressed in the context of the Order.

Cutting Vegetation

Although the report offers considerable discussion regarding the agricultural exemption set out in 6 NYCRR 663.2(c)(1)(v), the finding made by the ALJ indicated that there was insufficient evidence to prove the Respondent cut any vegetation. Thus the decision reflects the fact that, regardless of the accuracy of the dicta in the discussion, the dismissal was based on a failure of proof of the violation, or, more specifically, a failure of Staff to prove that any vegetation had been cut subsequent to the previously issued order on consent. It was neither necessary nor expedient for me to speculate on how the results of the case would have differed if the facts had been determined differently.

Seeding

The ALJ found, with regard to the seeding of rye grass, that "Pierce planted a lawn in the wetland area but the lawn does not substantially impair the wetland within the meaning of ECL 24-0701(2)." The ALJ noted, not only does the grass stabilize the wetland, prevent erosion, enhance aesthetic values, but that the primary inhibitor of the wetlands regeneration was that not enough fill had been removed under the consent order. While the ALJ's characterization of the rye grass as a "lawn" may be faulted, Staff's failure to demonstrate a substantial impairment of the wetland by this activity (an activity not specifically prohibited under ECL 24-0701(2) or 6 NYCRR 663.4), was fatal.

Also significant, was the fact that Staff had, at least tacitly, concurred in the seeding before the fact. In a meeting at the site on June 3, 1993 Pierce discussed remediation strategies with DEC and federal officials. In the presence of the DEC representatives, Pierce was told that, although seeding grass was not required under the consent order, seeding was not prohibited and would perform a beneficial function in stabilizing the disturbed wetland. Considering the context in which it arose, it is reasonable to conclude that the action of seeding was viewed by all present as remedial activity performed under the consent order. Not until after the grass had already been planted was Pierce notified by the Department that he should not have seeded. The dismissal was based on these factors, not, as suggested by Staff, on the "agricultural" exemption.

Activities in the wetland

Two factors entered into my determination not to direct the Respondent cease mowing and cutting of vegetation and trees in the wetland, or to otherwise restrict by Order his use of the wetland and adjacent area. The first is that there was insufficient evidence to establish Respondent performed any of the alleged prohibited activities since signing the Order on Consent. Additionally, Pierce has consistently asserted a desire to follow the rules (see the hearing transcript of May 12, 1994, pp. 112 - 115) and he has been cooperative with the Department throughout this entire process. Secondly, it is unnecessary and inappropriate to purport to restrict by Order an activity which has already been restricted by the law and regulations.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Ruling to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 9th day of June, 1995.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
MICHAEL D. ZAGATA, COMMISSIONER
____________/s/____________

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