The New York State Adirondack Park Agency may not deny a permit application without holding an adjudicatory hearing

Matter of Lake George Assn. v NYS Adirondack Park Agency

2024 NY Slip Op 02356

Decided on May 2, 2024

Appellate Division, Third Department

Fisher, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:May 2, 2024

CV-23-0672

[*1]In the Matter of The Lake George Association et al., Respondents,

v

NYS Adirondack Park Agency et al., Appellants.

Calendar Date:March 27, 2024
Before: Egan Jr., J.P., Aarons, Pritzker and Fisher, JJ.

Letitia James, Attorney General, Albany (Joshua M. Tallent of counsel), for appellants.

The West Firm, PLLC, Albany (Thomas S. West of counsel), for respondents.

Fisher, J.

(1) Appeal from a judgment of the Supreme Court (Robert J. Muller, J.), entered March 3, 2023 in Warren County, which granted petitioners' application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Adirondack Park Agency approving permits for the application of ProcellaCOR EC in Lake George, and (2) motion to strike portions of respondents' reply brief.

Respondent Adirondack Park Agency (hereinafter the APA) is deputized with advancing "optimum overall conservation, protection, preservation, development and use of the unique scenic, aesthetic, wildlife, recreational, open space, historic, ecological and natural resources of the Adirondack park" (Executive Law § 801). Such prescription includes the regulation of wetlands within the Adirondack park and, as such, permits for the application of pesticides and other chemicals must be issued by the APA pursuant to the Freshwater Wetlands Act (see ECL 24-0801; 9 NYCRR 578.2 [a]; 578.8 [i]). Respondent Lake George Park Commission (hereinafter the LGPC) is responsible for the management of Lake George and surrounding park areas including the wetlands situated therein (see ECL 43-0101), and is located within the Adirondack park and, therefore, within the purview of the APA.

In this capacity, the LGPC has conducted extensive removal and remediation projects targeting Eurasian watermilfoil (hereinafter EWM), an aquatic invasive plant that was first identified in Lake George during the 1980s, which is not native to the United States, has no natural predators and negatively impacts recreational use of the waterbody, water quality and native flora and fauna. This aggressive plant is very difficult to eradicate and control for a variety of factors, notably because EWM can reestablish from roots that were not completely pulled or killed, or through fragmentation, whereby pieces of severed plant spread in the water and propagate elsewhere in the lake, thus exacerbating the infestation. Removal projects have included the use of benthic matting/barriers over EWM beds, which have proven effective at smothering and containing EWM, but which are also indiscriminate killers of other native aquatic plants and may also harm animals living in or on the lakebed being covered. Hand harvesting is another removal method, including the use of a multi-person crew and a Diver Assisted Suction Harvester (hereinafter DASH), whereby a diver identifies and removes the entire plant from its roots by hand, and then places it into an underwater suction tube attached to a filtration system on a topside vessel that separates EWM for disposal. Despite being generally effective and causing less collateral damage to native species than matting, DASH is expensive and time consuming, resultantly limiting the number and area of removal projects that can be undertaken in a given year, while having only a temporary impact due to EWM's ability to quickly repopulate disturbed areas. Although such efforts to eradicate [*2]EWM from Lake George have cost the LGPC hundreds of thousands of dollars every year and approximately $7 million in total, there has been limited success on the global impact of the EWM population in Lake George.

In February 2021, following years of using benthic mat and hand harvesting removal methods, the LGPC requested a preliminary consultation and informal assessment from the APA regarding the application of a herbicide, ProcellaCOR EC (hereinafter ProcellaCOR), as a new method for EWM remediation within Lake George, specifically in Sheep Meadow Bay and Blairs Bay in the Town of Hague, Warren County. This herbicide was previously approved for such purpose by both the federal Environmental Protection Agency (hereinafter EPA) and respondent New York State Department of Environmental Conservation (hereinafter DEC). In July 2021, the APA wetlands staff performed site visits of the proposed project locations and ultimately determined that Blairs Bay was a value one wetland and Sheep Meadow Bay was a value three wetland.^[FN1] Thereafter, the LGPC submitted permit applications and supporting materials for the use of ProcellaCOR in both bays. Following a request for additional studies and supporting materials, the APA deemed each permit application complete on March 3, 2022, complied with its notice obligations, and further advised that public comments would be accepted through March 31, 2022. During this time, DEC completed its independent review and issued two separate permits authorizing the use of ProcellaCOR in both bays, subject to approval by the APA.

By the close of the public comment period, the APA timely received a total of 318 submissions relating to the permit applications, with 22 in support of the herbicide proposal and 296 letters in opposition. The majority of the opposition letters were form submissions — some with additional personal statements — pursuant to a letter-writing campaign at the behest of petitioner The Lake George Association (hereinafter LGA).^[FN2] Of the opposition letters, there were two notable and relevant submissions; one being a joint letter between LGA and petitioner Lake George Waterkeeper (hereinafter Waterkeeper), and the second submission from a limnologist with a dedication to specifically studying Lake George. Such comments were ultimately posted on the public website by the APA, whereafter the executive director of the LGPC submitted a response to the APA. Thereafter, the APA staff analyzed the project and determined that the applications met all applicable standards and would have no undue adverse wetland or other impacts, and presented such findings before the APA board at a public meeting on April 14, 2022. During such meeting, it was represented to the members of the APA board that, due to the regulatory time constraints, the APA board was required to decide whether to hold an adjudicatory hearing on such date. Following a discussion, including where several members expressed the opinion that they felt the [*3]applications were being rushed or contained inadequate information to make a decision without a hearing, the APA board granted both permit applications in a vote of six members in support and four members in opposition. Accordingly, permits for the use of ProcellaCOR in Blairs Bay and Sheep Meadow Bay were issued to the LGPC on April 22, 2022, specifying, among certain other conditions, that such treatment must occur by June 30, 2022.

Petitioners, a collection of public interest entities and an adjoining property owner to the project at Sheep Meadow Bay, commenced this proceeding pursuant to CPLR article 78, seeking to annul the permits issued by the APA. Petitioners asserted eight causes of action, generally taking issue with the procedure utilized by the APA in approving the permits and the failure to conduct an adjudicatory hearing. At the same time, petitioners moved for a preliminary injunction preventing the application of ProcellaCOR during the litigation, which was opposed by respondents and granted by Supreme Court. Following joinder of issue by respondents, Supreme Court found that "it does not appear that the [APA] board had sufficient information" to consider possible alternative methods of EWM remediation instead of ProcellaCOR or to determine whether to hold an adjudicatory hearing, largely due to the APA staff presentation being rushed, inaccurate and one-sided; Supreme Court held — although acknowledging there were no directives stating otherwise — that staff presentations were "presumably" required to be "balanced and impartial," and therefore granted the petition in its entirety,^[FN3] vacating the permits issued by the APA. Respondents appeal.

Initially, petitioners move to strike a footnote from respondents' reply brief on the ground that it contains matters that are outside the scope of the administrative record. Specifically, petitioners take issue with the assertion that "adjudicatory hearings have become rare because, where the [APA] makes clear to an applicant — often through requests for additional information — that a project is unlikely to be approved without a formal hearing, the applicant typically redesigns the project or withdraws or abandons the application rather than face the expense and delay of such a hearing." Respondents contend that such footnote was in response to petitioners' nonrecord statements that the APA has taken an "anti-hearing" stance for more than a decade, a point respondents contend is also outside the scope of the administrative record. Although this Court's review is limited to reviewing facts contained in the record (see Matter of Jorling v Adirondack Park Agency, 214 AD3d 98, 101-102 [3d Dept 2023]), we find that respondents' footnote was a permissible statement and argument encompassing the applicable statutory and regulatory authorities governing the handling of an incomplete permit application (see Reed v New York State Elec. & Gas Corp., 183 AD3d 1207, 1209 [3d Dept 2020]; see also Executive [*4]Law § 809 [2] [b]; 9 NYCRR 572.7, 572.22 [a] [1] [i]). To the further extent that petitioners contend that their counsel raised this point before Supreme Court during oral argument — which is also not part of the administrative record — such admission demonstrates that respondents' footnote was also a permissible response to petitioners' prior contentions and nonrecord statements (see Reed v New York State Elec. & Gas Corp., 183 AD3d at 1209). Accordingly, we deny petitioners' motion to strike.^[FN4]

Turning to the merits, where 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]; see Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, 34 NY3d 184, 191 [2019]). 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" (Matter of North Shore Ambulance & Oxygen Serv. Inc. v New York State Emergency Med. Servs. Council, 200 AD3d 1527, 1530 [3d Dept 2021] [internal quotation marks, brackets and citation omitted]). 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" (Matter of Beer v New York State Dept. of Envtl. Conservation, 189 AD3d 1916, 1918 [3d Dept 2020] [internal quotation marks and citations omitted]). Indeed, "[i]f a determination is rational it must be sustained even if the court concludes that another result would also have been rational" (Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, 34 NY3d at 195 [internal quotation marks and citation omitted]; see Matter of Natasha W. v New York State Off. of Children & Family Servs., 32 NY3d 982, 984 [2018]).

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 (see Matter of Jorling v Adirondack Park Agency, 214 AD3d at 103; Matter of Advanced Therapy, OT, PT, SLP, Psychologist, Registered Professional Nurse [RN], PLLC v New York State Educ. Dept., 140 AD3d 1367, 1368 [3d Dept 2016], appeal dismissed & lv denied 28 NY3d 1058 [2016]). As relevant here, the use of an aquatic herbicide in a freshwater wetland is a regulated activity requiring a permit to be issued by the APA so long as it concludes that the proposed activity "would not have an undue adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the [Adirondack] park[*5], taking into account the economic and social or other benefits to be derived from the activity" (ECL 24-0801 [2]; see 9 NYCRR 578.2 [a]; 578.3 [n] [2] [i]; 578.8 [i]; 578.9). In issuing such a permit, the APA must make a set of findings indexed to the value rating of the affected wetland (see 9 NYCRR 578.10 [a] [1], [3]), but may depart from those findings where "the economic, social and other benefits to be derived from the activity proposed compel a departure" (9 NYCRR 578.10 [a]; see 9 NYCRR 578.9).

Here, the APA board members were provided with an extensive meeting packet including, among other things, the timely-submitted public comments, various reports and findings from DEC and the Department of Health (hereinafter the DOH), a study of ProcellaCOR use in Lake Minerva for 2020 and other information relating to the permit applications. The APA board was also forwarded via email two late public comments from the limnologist and Waterkeeper.^[FN5] The APA staff specifically referenced or otherwise incorporated these materials, initially discussing the destructive characteristics of EWM and how it harms native vegetation and affects aquatic animals, notably because it grows fast and dense, and typically begins growing earlier in the season than other native plants such as the threatened alternate-flowered watermilfoil (hereinafter AFWM). Staff also explained that EWM beds typically die off quickly at the end of the season, further reducing available oxygen in the water while increasing the possibility of harmful algal blooms. In combating EWM in Lake George, staff discussed the advantages and disadvantages of benthic matting and hand harvesting with DASH. Such discussion included a comparison with Upper Saranac Lake, where aggressive remediation efforts using DASH have been able to successfully keep the EWM populations at "manageable levels." In doing so, however, staff highlighted that more than $75,000 had been spent annually to manage EWM in Upper Saranac Lake, whereas Lake George is much larger and it was expected to cost nearly $35,000 per week during the season to continue with DASH. Despite this significant cost and harvesting 68 tons of EWM in 2021, EWM populations in Lake George would still not be at manageable levels, as it was further acknowledged that regrowth rates in those DASH-managed areas were as high as 40% in the following season and they would need to be managed again within two years.^[FN6] As a result of the combination of the lack of global effectiveness and the high cost of using DASH in Lake George, the LGPC was limited in the number of areas and the extent of efforts that could be made each year to treat the EWM infestation.

In considering the LGPC's request to use ProcellaCOR, staff reviewed and presented to the APA board certain scientific findings from studies, research and reports. As it relates to the herbicide itself, the active ingredient in ProcellaCOR ^[FN7] is a type of synthetic plant hormone that mimics the plant growth [*6]hormone auxin, resulting in the disruption of the growth process in susceptible plants by causing excessive elongation of plant cells, ultimately killing the plant. It is a systemic herbicide, meaning that it is absorbed by the plant and distributed throughout the plant's stem, leaves and roots, rendering all parts of it nonviable, ensuring that EWM cannot spread through fragmentation. Notably, ProcellaCOR requires only a short contact time (between two and six hours) and rapidly degrades in sunlight. According to research from the EPA ^[FN8] and DEC, including reviews from the DOH and from DEC's Division of Fish and Wildlife, studies into the toxicity of ProcellaCOR determined that acute and chronic exposure was "practically non-toxic" to fish, birds, mammals, bees, amphibians and reptiles.^[FN9] Although ProcellaCOR was determined to be slightly toxic to invertebrates, notably to the freshwater midge, such finding was based on chronic exposure and not acute exposure.^[FN10] As more specifically relating to humans, based on the maximum concentration permitted to control EWM, which is 7.72 parts per billion (ppb), there were no restrictions to swimming, contact recreation or fishing, and irrigation restrictions were to continue until there was less than 1 ppb detected. There were also no drinking water restrictions because the DOH has no restrictions under 50 ppb, and the maximum application of ProcellaCOR in either bay was permitted to only be up to 7.72 ppb. Following these details, the staff discussed the results from the ProcellaCOR treatment in Minerva Lake, a value one wetland like Blairs Bay, which occurred in 2020 and demonstrated that the herbicide worked exactly as studied and expected. This specifically included how the herbicide quickly degraded to undetectable levels in just three days, almost entirely eradicated EWM in the entire lake,^[FN11] and in the year following the treatment, vegetation density levels returned to pretreatment levels, therefore indicating that native species were able to rebalance the ecosystem as intended. Similar results from ProcellaCOR projects in New Hampshire and Vermont were acknowledged by staff.

As it specifically relates to Sheep Meadow Bay, staff explained that the total area of treatment would be 3.6 acres and included a 40-acre dilution zone. Within this area, four native types of watermilfoil were noted as present and susceptible to ProcellaCOR — including the threatened species AFWM. Relating to Blairs Bay, the treatment zone would be 4 acres with a 60-acre dilution zone, and additional native species were also noted as present and susceptible — again including AFWM. Based on their review and that of DEC, staff told the APA board that they are presuming the application of ProcellaCOR would kill susceptible species in the treatment locations and possibly also in the dilution zones, but had hope that, since EWM begins to grow earlier in the season than many of these species such as AFWM, that an early season application [*7]could minimize or avoid harming native species. It was further noted that, although AFWM is threatened in New York, there are at least 35 other locations in Lake George where AFWM has been observed. Lastly, the proposed treatment project would cost $39,330.

Thereafter, staff discussed the public comments, including a concern raised regarding when EWM beds would be rapidly killed off by the herbicide and the plants would decompose all at the same time, thereby causing an excess release of nutrients and creating a risk of harmful algal blooms. However, staff explained that this risk is actually higher when EWM beds are not treated and are allowed to fully grow for a season and then die off, as opposed to applying the herbicide earlier in the season when EWM beds would be in their infancy and relatively small. Relating to rare native species and other nontarget species, staff reiterated that they assumed all susceptible species would be impacted by the treatment but that each species was secure throughout Lake George. Relating to comments suggesting a return to hand harvesting and benthic matting, including that such efforts have not been performed in Sheep Meadow Bay and limited in Blairs Bay over the past years, staff reiterated that the LGPC has to triage sites and cannot focus on all locations but rather must prioritize larger infestations and higher traffic areas — notably where boat traffic could accelerate fragmentation. Staff also acknowledged that officials from petitioner Town of Hague passed a unanimous resolution opposing the use of ProcellaCOR in either bay. Following the staff recommendations relating to the project and imposing certain conditions, one APA board member indicated that she did not believe that she had enough information,^[FN12] which was echoed by two other board members — including one who was also concerned about the unanimous resolution by the Town of Hague.

Based on the foregoing, although it may have been rational for the APA board to vote differently based on the information before it, we cannot say that the APA lacked a rational basis or acted in an arbitrary and capricious manner in approving the permit applications (see Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, 34 NY3d at 195; Matter of Riverkeeper, Inc. v New York State Dept. of Envtl. Conservation, 152 AD3d 1016, 1019 [3d Dept 2017]). The information before the APA board contained scientific studies, reports and research indicating that ProcellaCOR is "practically non-toxic" to nearly all animals including fish and humans, with the exception of being slightly toxic to certain invertebrates like the freshwater midge and mysid. Although the limnologist raised concerns over these toxicity findings,^[FN13] as did the EPA over male freshwater midges, the limnologist also conceded that certain testing relating to the toxicity of ProcellaCOR to female mysids was statistically insignificant. As it relates to her remaining [*8]contentions and those of Waterkeeper, including challenges to the dilution models, circulation/currents of the lake and degradation of the active ingredient and its metabolites, responses by the executive director of the LGPC, discussions during the APA presentation and the other materials in the meeting packet were sufficient to allow APA board members to rationally disagree with those contentions (see Matter of Catskill Heritage Alliance, Inc. v New York State Dept. of Envtl. Conservation, 161 AD3d 11, 19 [3d Dept 2018], lv denied 32 NY3d 904 [2018]). When further considering the economic, social and other benefits derived from the use of ProcellaCOR — specifically, that the total treatment proposal cost for the project would be slightly more than the cost of just one week of continuing DASH, and that the successful results of other treatment projects such as in Minerva Lake demonstrated that the use of ProcellaCOR was efficient and minimally harmful — we are satisfied that the APA complied with its statutory and regulatory duties and was not otherwise required to present more alternatives in the permit review process (see ECL 24-0801 [2]; 9 NYCRR 578.2 [a]; 578.3 [n] [2] [ii]; 578.8 [i]; 578.9; 578.10 [a] [1], [3]; see Matter of Beer v New York State Dept. of Envtl. Conservation, 189 AD3d at 1920-1921; see generally Matter of Protect the Adirondacks! Inc. v Adirondack Park Agency, 121 AD3d 63, 77 [3d Dept 2014], lv dismissed & denied 24 NY3d 1065 [2014]). Accordingly, it was an error for Supreme Court to substitute its judgment for that of the APA in determining whether there was sufficient information to approve the permit applications — particularly when according great weight and judicial deference to the factual evaluations of the APA within its area of expertise (see Matter of Riverkeeper, Inc. v New York State Dept. of Envtl. Conservation, 152 AD3d at 1019; see also Matter of Beer v New York State Dept. of Envtl. Conservation, 189 AD3d at 1918).

In addition, contrary to petitioners' contentions, the record also supports the APA's determination to not hold a hearing on either permit application. In challenging such determination, the ultimate burden is on petitioners to demonstrate that there were "substantive and significant issues" with respect to whether the proposed project would have an "undue adverse impact on the natural, scenic, aesthetic, wildlife, historic, recreational or open space resources" of the Adirondack park (Executive Law § 809 [3] [d]; [10] [e]; see Matter of Adirondack White Lake Assn. v Adirondack Park Agency, 225 AD3d 1247, 1248, 2024 NY Slip Op 01621, *2 [4th Dept 2024]; Matter of Riverkeeper, Inc. v New York State Dept. of Envtl. Conservation, 152 AD3d at 1018). "The resolution of whether an issue is substantive and significant requiring an adjudicatory hearing is left to [the APA] and will not be disturbed absent a showing that it is predicated upon an error of law, is arbitrary and capricious, or represents an [*9]abuse of discretion" (Matter of Beer v New York State Dept. of Envtl. Conservation, 189 AD3d at 1920 [internal quotation marks and citations omitted]).

Here, although public commenters expressed a desire for further studies, which was echoed by a few APA board members, the record is unclear how these studies would have been different than what information was already before board members and how such studies would have helped them make a decision — specifically as it relates to toxicity to invertebrates, as the EPA found ProcellaCOR to be only slightly toxic and the limnologist acknowledged other findings suggesting chronic toxicity to be statistically insignificant (see Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, 34 NY3d at 197). Other individual board members acknowledged that more information would be better, but also expressed that they felt comfortable as to the information before them to vote on the permit applications. Relating to public interest in the projects, despite there being approximately 300 public comments in opposition to the proposed project, the majority of these submissions were from a letter-writing campaign by one of the petitioners and constituted less than 10% of its total membership, which alone is insufficient to warrant a hearing (see Matter of Adirondack White Lake Assn. v Adirondack Park Agency, 225 AD3d at 1248 [affirming denial of request for adjudicatory hearing where record contained over 3,000 submissions in opposition to the proposed project]; NY St Cts Elec Filing [NYSCEF] Doc No. 197, respondent's brief at 7, in Adirondack White Lake Assn. v Adirondack Park Agency, Sup Ct, Oneida County, index No. EFCA2022-556, affd 225 AD3d 1247 [4th Dept 2024]). To the extent that petitioners highlight the APA's handling of the SONAR herbicide applications from nearly two decades ago, which are nonbinding on the APA and this Court, such applications involved a different herbicide with different risks, required prolonged contact lasting for six weeks, and necessitated containment curtains to maintain such contact between the target vegetation and the herbicide — factors that are absent here. When further considering the record, public interest and other criteria that the APA should consider when determining whether to hold an adjudicatory hearing (see Executive Law § 809 [3] [d]; 9 NYCRR 580.2 [a]), and "mindful that our role is not to reweigh the factors and substitute our judgment" (Matter of Catskill Heritage Alliance, Inc. v New York State Dept. of Envtl. Conservation, 161 AD3d at 20-21 [internal quotation marks and citations omitted]), the APA's determination to not hold an adjudicatory hearing was neither irrational nor arbitrary and capricious (see Matter of Adirondack White Lake Assn. v Adirondack Park Agency, 225 AD3d at 1248; Matter of Riverkeeper, Inc. v New York State Dept. of Envtl. Conservation, 152 AD3d at 1018). Accordingly, although there may have been another [*10]rational result, Supreme Court also erred by substituting its judgment for that of the APA relating to whether to hold an adjudicatory hearing (see Matter of Riverkeeper, Inc. v New York State Dept. of Envtl. Conservation, 152 AD3d at 1018).

Lastly, petitioners contend, and Supreme Court found, that the actions of the APA were affected by errors of law and were arbitrary and capricious because the APA staff presentation was inaccurate, one-sided and contained a misrepresentation of the time constraints imposed on the APA board. However, as Supreme Court had initially and correctly recognized, there are no requirements governing an APA staff presentation and whether it must be balanced, and therefore it was an error for Supreme Court to then create and impose such a standard upon the APA. Rather, "[i]n evaluating whether an administrative determination is informed, courts accord the determination a presumption of regularity and will not disturb it absent a clear revelation that the administrative body made no independent appraisal and reached no independent conclusion" (Matter of Bruso v Clinton County, 139 AD3d 1169, 1171 [3d Dept 2016] [internal quotation marks and citations omitted]). Here, based on the record before us — particularly the recorded public meeting wherein APA board members made statements partially explaining the reasoning for their vote — we are satisfied that "there is no indication in the record that the APA failed to make an informed decision based upon an independent appraisal of the evidence" (Adirondack White Lake Assn. v Adirondack Park Agency, 225 AD3d at 1248 [internal quotation marks and citation omitted]). Nor does the record support the finding that the APA misrepresented the time constraints on the applications, as APA staff and counsel present at the public meeting correctly represented that the APA may not deny a permit application without holding an adjudicatory hearing and that the decision whether to hold such a hearing must be within 60 days of deeming the permit applications complete (see Executive Law § 809 [3] [d]). Since the permit applications were deemed complete on March 3, 2022 and the public meeting on April 14, 2022 was the last meeting before the 60 days lapsed, the APA complied with its regulatory obligations. We further reject petitioners' remaining contentions as they relate to other perceived improprieties during the application process and APA staff presentation (see generally Matter of Protect the Adirondacks! Inc. v Adirondack Park Agency, 121 AD3d at 78). Therefore, Supreme Court should have dismissed the petition in its entirety, and we make the appropriate entry. We have considered the remaining contentions of the parties and have found them to be either without merit or academic.

Egan Jr., J.P., Aarons and Pritzker, JJ., concur.

ORDERED that the motion is denied, without costs.

ORDERED that the judgment is reversed, on the law, without costs, and petition dismissed.

Footnotes

Footnote 1: Freshwater wetlands are characterized and assigned one of four value ratings — specifically, one, two, three or four, with one being the highest value — based on specific characteristics that indicate the overall worth of a given wetland (see 9 NYCRR 578.5; see also Matter of Jorling v Adirondack Park Agency, 214 AD3d 98, 103 [3d Dept 2023]). Such rating is relevant to the issuance of permits, as the proposed activity to occur in a wetland is measured differently between each value (see generally 9 NYCRR 578.10 [a]).

Footnote 2: Although it came to the APA's attention that a large number of comments had been unwittingly filtered into the APA's spam email folder, such diverted comments were reviewed by the APA staff prior to the meeting, included in the meeting packet and posted to the public website.

Footnote 3: Prior to Supreme Court's decision and judgment, petitioners withdrew three causes of action asserted against DEC.

Footnote 4: It is further necessary to acknowledge that the prior determinations by the APA whether to hold an adjudicatory hearing over the last decade are nonbinding on this Court and, therefore, neither parties' challenged statements in the context of this motion have any bearing on the matter before us — particularly inasmuch as they are not in the record before either the APA board or this Court.

Footnote 5: Petitioners have placed great emphasis as to the handling of these two submissions. Initially, having been sent within two days of the meeting and almost two weeks after the public comment period officially closed, they were late — notwithstanding the gratuitous offer of an APA staff member advising that comments would continue to be accepted until the meeting. To the extent that petitioners further highlight an email from the executive director of the LGPC calling for the rejection of such late submissions, while provocative, such email was not from the APA or binding on the APA and, nevertheless, it is not disputed that the APA staff ultimately did email such submissions to the APA board. To that point, as petitioners' counsel acknowledged at oral argument and our review of the record confirms, such additional submissions were almost entirely redundant of the original submissions that had already been forwarded to the APA and were otherwise included in the meeting packet.

Footnote 6:Staff compared hand harvesting EWM in Lake George to handpicking dandelions on a large golf course — but with the added difficulty of it being underwater.

Footnote 7: Florpyrauxifen-benzyl is the active ingredient in ProcellaCOR.

Footnote 8: The EPA specifically assessed a variety of exposure information, including through the use of environmental fate studies and toxicity studies of florpyrauxifen-benzyl and its metabolites.

Footnote 9: The classification as "practically non-toxic" is the lowest level assigned by the EPA.

Footnote 10: Specifically, chronic testing conducted and reviewed by the EPA indicated toxicity to the freshwater midge (aquatic insect) and the mysid (opossum shrimp). Further studies by DEC of florpyrauxifen-benzyl and its metabolites revealed delayed emergence of male freshwater midges exposed to metabolite hydroxy-acid, confirming chronic toxicity, but ultimately concluding there was only a low toxicity risk to freshwater aquatic invertebrates.

Footnote 11: In the year following the application of ProcellaCOR, only a single EWM plant was found in the entire lake.

Footnote 12: It is noted that the same APA board member who stated she did not have enough information had asked earlier in the presentation whether the board would receive a copy of the Minerva Lake project, at which time staff advised that it was included in the meeting packet, therefore suggesting that — although she wanted more information — she had also not completely reviewed all of the information already provided to the board.

Footnote 13: The limnologist challenged the use of ProcellaCOR SC in her submissions, which is a different product, concentration and EPA registration from the proposed treatment using ProcellaCOR EC. It is unclear in the record whether her contentions and analysis referred to the correct herbicide.

NYS Supreme Court's vacating an arbitration award on the ground that the arbitrator disregarded applicable substantive law held error

Matter of Buffalo Teachers' Fedn. (Board of Educ. of Buffalo City Sch. Dist.)

2024 NY Slip Op 02429

Decided on May 3, 2024

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 3, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CURRAN, MONTOUR, DELCONTE, AND KEANE, JJ.

224 CA 23-00699

[*1]BUFFALO TEACHERS' FEDERATION, PETITIONER-RESPONDENT, AND BOARD OF EDUCATION OF BUFFALO CITY SCHOOL DISTRICT, RESPONDENT-APPELLANT.

      CAVETTE A. CHAMBERS, CORPORATION COUNSEL, BUFFALO (ROBERT E. QUINN OF COUNSEL), FOR RESPONDENT-APPELLANT.

ROBERT T. REILLY, LATHAM (JOSE L. MANJARREZ OF COUNSEL), FOR PETITIONER-RESPONDENT.

Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Amy C. Martoche, J.), entered April 14, 2023, in a proceeding pursuant to CPLR article 75. The order and judgment granted the petition seeking to vacate an arbitration award and denied respondent's application to confirm the award.

It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs, the petition is denied, the application is granted and the arbitration award is confirmed.

Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 75 seeking to vacate an arbitration award determining that a grievance was not arbitrable on the ground that petitioner had failed to timely demand arbitration within the time specified in the parties' collective bargaining agreement (CBA). On appeal from an order and judgment granting the petition and denying the application of respondent to confirm the award, respondent contends that Supreme Court erred in determining that the arbitrator manifestly disregarded the substantive law applicable to the parties' dispute and that the award was irrational. We agree.

It is well settled that "an arbitrator's rulings, unlike a trial court's, are largely unreviewable" (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]). "Under CPLR 7511 (b) an arbitration award must be vacated if, as relevant here, a party's rights were impaired by an arbitrator who 'exceeded [their] power' " (Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, 90 [2010], quoting CPLR 7511 [b] [1] [iii]). "[A]n arbitrator 'exceed[s] [their] power' under the meaning of the statute where [their] 'award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power' " (id.), or where the arbitrator " 'manifestly disregard[s]' the substantive law applicable to the parties' dispute" (Schiferle v Capital Fence Co., Inc., 155 AD3d 122, 127 [4th Dept 2017], quoting Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479 [2006], cert dismissed 548 US 940 [2006]; see Matter of Gerber v Goldberg Segalla LLP, 199 AD3d 1354, 1355 [4th Dept 2021]). "Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where 'an arbitrator has made an error of law or fact' " (Kowaleski, 16 NY3d at 91, quoting Falzone, 15 NY3d at 534; see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 79 [2003]). As the Court of Appeals has explained, "[c]ourts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award [*2]and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice" (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]). The party seeking to vacate an arbitration award thus bears a heavy burden to establish that the arbitrator exceeded their power (see Matter of Asset Protection & Sec. Servs., LP v Service Empls. Intl. Union, Local 200 United, 19 NY3d 1009, 1011 [2012]; North Syracuse Cent. School Dist. v North Syracuse Educ. Assn., 45 NY2d 195, 200 [1978]).

We agree with respondent that the court erred in vacating the award on the ground that the arbitrator manifestly disregarded the substantive law applicable to the parties' dispute. "[M]anifest disregard of law is a severely limited doctrine" inasmuch as "[i]t is a doctrine of last resort limited to the rare occurrences of apparent egregious impropriety on the part of the arbitrator[ ]" that "requires more than a simple error in law or a failure by the arbitrator[ ] to understand or apply it; and, it is more than an erroneous interpretation of the law" (Wien & Malkin LLP, 6 NY3d at 480-481 [internal quotation marks omitted]). "To modify or vacate an award on the ground of manifest disregard of the law, a court must find both that (1) the arbitrator[ ] knew of a governing legal principle yet refused to apply it or ignored it altogether, and (2) the law ignored by the arbitrator[ ] was well defined, explicit, and clearly applicable to the case" (Schiferle, 155 AD3d at 127 [internal quotation marks omitted]; see Wien & Malkin LLP, 6 NY3d at 481; Barone v Haskins, 193 AD3d 1388, 1391 [4th Dept 2021], appeal dismissed 37 NY3d 1032 [2021], lv denied 37 NY3d 919 [2022]).

Here, the court determined that the arbitrator manifestly disregarded "substantive law" applicable to the parties' dispute when the arbitrator distinguished, rather than applied, two prior arbitration awards that petitioner and the court read as favorable to petitioner's position on the timeliness issue. That was error. "The effect, if any, to be given to an earlier arbitration award in subsequent arbitration proceedings is a matter for determination in that forum" (Matter of City School Dist. of City of Tonawanda v Tonawanda Educ. Assn., 63 NY2d 846, 848 [1984]; see Falzone, 15 NY3d at 534-535; Board of Educ. of Patchogue-Medford Union Free School Dist. v Patchogue-Medford Congress of Teachers, 48 NY2d 812, 813 [1979]; see generally 20 Richard A. Lord, Williston on Contracts § 56:92 [4th ed, May 2023 update]). Neither petitioner nor the court identified any "substantive law applicable to the parties' dispute" to support application of the doctrine of manifest disregard of law (Schiferle, 155 AD3d at 127; see Matter of Daesang Corp. v NutraSweet Co., 167 AD3d 1, 21 n 15 [1st Dept 2018], lv denied 32 NY3d 915 [2019]). In any event, even if the two prior arbitration awards constituted substantive law, inasmuch as the record establishes that the arbitrator considered, but distinguished, those arbitration awards, we conclude that petitioner failed to establish that the arbitrator "knew of a governing legal principle" that was "well defined, explicit, and clearly applicable to the case" and "yet refused to apply it or ignored it altogether" (Schiferle, 155 AD3d at 127 [internal quotation marks omitted]; see Matter of McKenna, Long & Aldridge, LLP v Ironshore Specialty Ins. Co., 176 AD3d 526, 527 [1st Dept 2019], lv denied 35 NY3d 906 [2020]).

We further agree with respondent that the court erred in vacating the award on the ground that it was irrational. "An award is irrational if there is no proof whatever to justify the award" (Matter of Professional, Clerical, Tech., Empls. Assn. [Board of Educ. for Buffalo City Sch. Dist.], 103 AD3d 1120, 1122 [4th Dept 2013], lv denied 21 NY3d 863 [2013] [internal quotation marks omitted]). Where, however, "an arbitrator offer[s] even a barely colorable justification for the outcome reached, the arbitration award must be upheld" (id. [internal quotation marks omitted]; see Wien & Malkin LLP, 6 NY3d at 479).

Here, the arbitrator issued a thoughtful, well-reasoned opinion and award in which he considered the terms of the CBA, the evidence adduced at the hearing, and prior arbitration awards, and we thus conclude that "[i]t cannot be said that the arbitrator's procedural resolution of the issue concerning compliance with the contractual requirement that the demand for arbitration be made within a specified time . . . was irrational" (Matter of Diaz v Pilgrim State Psychiatric Ctr. of State of N.Y., 62 NY2d 693, 695 [1984]; see Matter of Town of Greece Guardians' Club, Local 1170, Communication Workers of Am. [Town of Greece], 167 AD3d 1452, 1455 [4th Dept 2018]; Farino v State of New York, 55 AD2d 843, 843 [4th Dept 1976]).

Contrary to petitioner's proffered alternative grounds for affirmance (see generally Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]), we conclude that petitioner failed to meet its burden of establishing that the arbitrator's award "is violative of a strong public policy . . . or exceeds a specifically enumerated limitation on his power" (Matter of Silverman [Benmor Coats], 61 NY2d 299, 308 [1984], rearg denied 62 NY2d 803 [1984]; see Matter of Rochester City School Dist. [Rochester Assn. of Paraprofessionals], 34 AD3d 1351, 1351-1352 [4th Dept 2006], lv denied 8 NY3d 807 [2007]).

Based on the foregoing, we reverse the order and judgment, deny the petition, grant the application, and confirm the award. In light of our determination, we do not address respondent's remaining contentions.

Entered: May 3, 2024

Ann Dillon Flynn

Clerk of the Court

Lack of sufficient safety devices to protect Plaintiff from falling into a hole violated Labor Law §240(1)

Matter of Rijos v New York City Tr. Auth.

2024 NY Slip Op 02510

Decided on May 07, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 07, 2024
Before: Webber, J.P., Moulton, Friedman, González, Mendez, JJ.

Index No. 152047/23 Appeal No. 2220 Case No. 2023-06721

[*1]In the Matter of Miguel Rijos, Respondent,

v

New York City Transit Authority, Respondent-Appellant, Metropolitan Transportation Authority, Respondent.

MTA Law Department, Brooklyn (Theresa A. Frame of counsel) for appellant.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondent.

Order, Supreme Court, New York County (Denise M. Dominguez, J.), entered December 6, 2023, which, insofar as appealed from as limited by the briefs, granted petitioner's motion for leave to serve a late notice of claim on respondent New York City Transit Authority (NYCTA), unanimously affirmed, without costs.

Petitioner alleges that he was struck by a westbound train at the 42nd Street and Bryant Park Station. As a result of the accident both his legs were amputated below the knee. He failed to submit a notice of claim within ninety days, as required by General Municipal Law § 50-e (1)(a) and Public Authorities Law § 1212(2). Petitioner sought leave to file a late notice of claim approximately one year from the date of the accident.

The court providently exercised its discretion in granting petitioner leave to file a late notice of claim (General Municipal Law § 50-e [5]). Petitioner made a prima facie showing that NYCTA received timely "actual knowledge of the essential facts constituting the claim" (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 461 [2016] [internal quotation marks omitted]). The New York City Police Department (NYPD) report on the accident indicated that the investigating officer was an NYPD transit officer who observed petitioner being taken to the hospital, and the report set forth specific contents of the police interview with the train operator about the accident. Additionally, petitioner demonstrated that NYCTA had the opportunity to investigate the essential facts in a timely manner, establishing that petitioner's delay did not cause substantial prejudice to NYCTA (see Matter of Mejia v New York City Tr. Auth., 224 AD3d 546 [1st Dept 2024]; Johnson v New York City Tr. Auth., 278 AD2d 83 [1st Dept 2000]; compare Alexander v New York City Tr. Auth., 200 AD3d 509, 510 [1st Dept 2021]). In response to petitioner's showing, NYCTA offered no particularized evidence of prejudice (see Clarke v New York City Tr. Auth., 222 AD3d 552, 553 [1st Dept 2023]).

Petitioner also offers a reasonable excuse for failing to serve a timely notice of claim. Medical records show that he remained in the hospital for 34 days and then required additional treatments thereafter. He also faced challenges attending to his new disability while housed in the City's shelter system. We note that petitioner retained counsel approximately eight months after the accident, and that he fails to explain why counsel delayed in moving for leave to serve a late notice of claim. However, this failure is not dispositive given his showing of respondent's actual knowledge of the incident, the absence of prejudice caused by the delay, and his reasonable excuse for his inaction in the months immediately following his accident (see Stampf v Metropolitan Transp. Auth., 57 AD3d 222, 223 [1st Dept 2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 7, 2024

Challenging books available to students held in a public school's library [Decisions of the Commissioner of Education No. 18,402]

Appeal of MOMS FOR LIBERTY OF WAYNE COUNTY and REV. JACOB MARCHITELL from action of the Board of Education of the Clyde-Savannah Central School District regarding challenged library materials.

Decision No. 18,402

(April 25, 2024)

American Center for Law & Justice, attorneys for petitioners, Jeff Ballabon and Abigail A. Southerland, Esqs., of counsel

Ferrara Fiorenza PC, attorneys for respondent, Lindsay A.G. Plantholt, Esq., of counsel

Robert T. Reilly, Esq., attorneys for amicus curiae New York State United Teachers, Christina M. French, Esq., of counsel

The Law Office of Stephanie Adams, PLLC, attorneys for amicus curiae New York State Library Association, Stephanie A. Adams, Esq.

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Clyde-Savannah Central School District (“respondent”) to retain five challenged books within its library collection.  The appeal must be dismissed.

Respondent has, through board policy, “delegate[d] its authority to designate library materials to be used in the [d]istrict to the school library media specialist(s).”  The materials at issue herein were acquired under that authority.

Respondent’s policy entitled “Objection to Instructional Materials and Controversial Issues” encourages community members to raise concerns about library materials to district staff.  Under this policy, community members may submit a formal complaint to the superintendent.  Upon receipt, the superintendent convenes a review committee, which then has 60 days to review the challenged materials and submit a report to the superintendent.  The committee’s findings may then be appealed to the board.

In two separate requests in spring 2023, petitioner Marchitell challenged five books within respondent’s junior/senior school library collection:  (1) People Kill People by Ellen Hopkins; (2) It Ends With Us by Colleen Hoover; (3) All Boys Aren’t Blue by George M. Johnson; (4) Jesus Land: A Memoir by Julia Scheeres; and (5) Red Hood by Elana K. Arnold.  Petitioner Marchitell generally alleged that the books contained sexually explicit material inappropriate for school-age students.

In accordance with its policy, the district convened a committee to review the books.  The committee was composed of the director of curriculum, instruction, and educational services; high school principal; junior high school principal; library media specialist; chair of the English department; and a “[p]rocess [c]onsultant.”  Each member of the committee read and discussed the challenged books.  After completing evaluation forms for each book, the committee unanimously recommended that each book be retained in the school library, designated as either Young Adult (People Kill People, All Boys Aren’t Blue, and Red Hood) or Adult (Jesus Land and It Ends With Us).  Petitioner Marchitell appealed this determination to respondent.

At a board meeting on August 9, 2023, respondent sustained petitioner Marchitell’s appeal.  This determination was the subject of an appeal to the Commissioner, commenced on September 8, 2023 (the “prior appeal”).

During the pendency of the prior appeal, respondent reconsidered its determination and received legal advice in connection therewith.  At a board meeting on September 13, 2023, respondent rescinded its previous resolution and voted, 6-2, to deny petitioner Marchitell’s appeal (the “September vote”).[1]  As a result, the challenged books remained in respondent’s collection.  This appeal ensued.  Petitioners’ request for interim relief was denied on October 27, 2023.

Petitioners seek annulment of the September vote, arguing that respondent abused its discretion by voting to retain the challenged books.  Petitioners assert that the books are per se inappropriate as they are “pornographic,” “serve[] no educational purpose,” and are “potentially illegal obscenity.”  Petitioners further argue that the board “fail[ed] to apply proper pedagogical and ethical standards” and “relied on a mischaracterization of the First Amendment” in voting to retain the materials in its library collection.

Respondent argues that the board acted reasonably in following its policy for review of challenged materials.[2]

First, I must address two preliminary matters.  The New York State United Teachers (NYSUT) and the New York Library Association (NYLA) have submitted proposed amicus curiae memoranda for consideration.  Section 275.17 of the Commissioner’s regulations permits interested persons to submit memoranda amicus curiae upon written application to, and approval by, the Commissioner.  In considering whether to grant such applications, the Commissioner has historically applied the standard adopted by the Court of Appeals, which requires satisfaction of at least one of the following criteria:  (1) that the parties are not capable of a full and adequate presentation and that the interested non-party could remedy this deficiency; (2) that the interested non-party could identify law or arguments that might otherwise escape consideration; or (3) that the proposed amicus curiae brief would otherwise be of assistance (see 22 NYCRR 500.23 [a] [4] [i]).

I find that both NYSUT and NYLA possess unique perspectives that are of assistance in resolving the issues in this appeal.  NYSUT’s local affiliates represent library media specialists, who staff school libraries throughout New York State.  NYLA is a not-for-profit corporation formed to lead, educate, and advocate for the advancement of New York State’s library community; it also includes a Section of School Librarians.  Given the crucial role that librarians play in collection development and responding to challenged books, I have accepted both amicus briefs into the record.

Next, following the commencement of this appeal, petitioners submitted a video recording of the September vote that they obtained via a Freedom of Information Law request.  The Commissioner may accept additional evidence “upon good cause shown and such terms and conditions as the commissioner may specify” (8 NYCRR 276.5).  Petitioners argue that the recording relates to its claim that respondent based its decision on a “misunderstanding of the law.”  Respondent does not object to its admission.  In my discretion, I have accepted this recording into the record.

Turning to the merits, a board of education has broad authority to prescribe the course of study in the schools of the district (Education Law § 1709 [3]; Appeal of McLoughlin and Carusi, 44 Ed Dept Rep 336, Decision No. 15,191; Appeal of Murphy, et al., 39 id. 562, Decision No. 14,311; Appeal of Smith, Jr., 34 id. 346, Decision No. 13,335).  This includes the ability to manage its library collection.  A school district’s discretion to remove material from its collection, however, must be exercised within “fundamental constitutional safeguards” (Campbell v St. Tammany Parish Sch. Bd., 64 F3d 184, 188 [5th Cir 1995], citing Tinker v Des Moines Indep. Community Sch. Dist., 393 US 503, 505-07 [1969]).  “[L]ocal school boards may not remove books from school library shelves simply because they dislike the ideas contained [there]in …” (Board of Ed., Island Trees Union Free School Dist. No. 26 v Pico, 457 US 853, 872 [1982]).

A board’s decision to retain a challenged book or other library material in its collection will only be reversed if the board has acted in an arbitrary, capricious, or unreasonable manner (Appeal of Bradshaw, 62 Ed Dept Rep, Decision No. 18,197).[3]  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioners have failed to demonstrate that respondent’s determination was unlawful on the basis that the challenged books are per se inappropriate.  “Obscenity” is one of a few categories of speech that may be regulated by states consistent with the First Amendment (see Penal Law § 235.00).[4]  The U.S. Supreme Court has imposed a three-part test to determine whether a work is obscene:

1. the average person ... would find that the work, taken as a whole, appeals to the prurient interest;
2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
3. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[5]

The purpose of the third requirement is, as the Court explained in Jacobellis v Ohio,

... the portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press ... [M]aterial dealing with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied ... constitutional protection.[6]

Petitioners’ argument rests upon the assumption that fictional works describing or portraying human sexuality are per se objectionable and subject to exclusion from school libraries.  Petitioners cite no authority for this contention.[7]  I acknowledge that each of the challenged books contain some vivid and detailed accounts of sexual interactions.  But that alone is not enough to justify their censorship. 

Petitioners have otherwise failed to demonstrate that the challenged books here lack “literary, artistic, political, or scientific value.”  Indeed, petitioners do not even allege that they have read the books in question.  In his written challenges to the books, petitioner Marchitell merely asserted that he had read “[e]nough of each book to lodge a complaint.”  Petitioner Moms for Liberty makes no allegations concerning its familiarity with the works in question.  

Respondent’s determination, by contrast, was supported by the review committee’s analysis of the educational, literary, and artistic values of each book.  The committee completed evaluation forms for each book, identifying awards and distinctions as well as publisher and industry reviews that assessed the educational merit of the materials.  In each evaluation, the committee outlined important themes and topics in the books, such as homelessness, bullying, racial discrimination, gender identity, consent, religion, and feminism.  In the September vote, respondent stated that it had “further consider[ed]” the committee’s report and determined that the review was conducted in accordance with board policy.  Respondent’s deference to the views of the committee, which followed board policy and reached a reasoned conclusion, can hardly be considered arbitrary or capricious (see generally Appeals of Manders, 63 Ed Dept Rep, Decision No. 18,295; Appeal of D.G.D. and J.D., 62 id., Decision No. 18,270; compare Case v Unified Sch. Dist. No. 233, 908 F Supp 864, 876 [D Kan 1995]).

Additionally, while petitioners purport to object solely to the sexual content of the challenged books, they object to several passages of All Boys Aren’t Blue that have nothing to do with sexuality.  Below are three such passages:

…It’s as if the more visible LGBTQIAP+ people become, the harder the heterosexual community attempts to apply new norms. I think the majority fear becoming the minority, and so they will do anything and everything to protect their power.

... [E]arly in 2012, Trayvon Martin was killed by George Zimmerman—and my entire perspective shifted on being a Black person in this society … My eyes were opened by seeing the shooting of Black people at the hands of police. Seeing the killing of Black children like Tamir Rice at the hands of police.  Seeing that it didn’t matter whether you were an affluent Black, a poor Black, a child, or an adult. In the eyes of society, I was still a n****.

When I say I’m not blue, I'm referring to the blue on the police uniform my father wore. How I've watched too many in that same blue harm Black and brown people.  I know for myself that although I respect my father with all my heart, it is my duty to fight against how that institution has harmed us.

Petitioners’ objection to these passages can only be understood as an objection to author George M. Johnson’s personal and political views.[8]  I agree with NYLA that such objections are emblematic of a “dangerous nationwide trend of accusations used to intimidate and threaten schools and librarians into denying access to books on the basis of their content and the identities of their authors.”  The Office of the Attorney General and the State Education Department recently denounced this trend in joint guidance, indicating that school boards cannot

• “Ban [] books that highlight the diverse histories and perspectives of Black people;
• Us[e] a pretext of inappropriateness or lewdness to systemically remove diverse perspectives from the classroom; or
• Prohibit[] discussions related to lesbian, gay, bisexual, transgender, nonbinary and gender expansive people ... using a pretext of inappropriateness or obscenity.”[9]

School boards considering the censorship of library materials must carefully consider whose voices will be silenced thereby.

The case law cited by petitioners regarding a school board’s authority to limit speech is inapposite as respondent has not proposed any restriction on speech (see e.g. Bethel Sch. Dist. No. 403 v Fraser, 478 US 675, 685 [1986] [upholding disciplinary consequences for a student who delivered a “lewd and indecent” speech]; R.O. ex rel. Ochshorn v Ithaca City Sch. Dist., 645 F3d 533, 541 [2d Cir 2011] [upholding school district’s prohibition on the publication of a drawing of “stick figures in sexual positions” in its school newspaper]).  These cases do not, as petitioners suggest, impose an affirmative duty on boards of education to prohibit “vulgar” speech.  They instead hold that school boards possess the authority to censor inappropriate student speech that would, in other settings, be protected by the First Amendment.[10]

Petitioners also argue that “early exposure to sexual content” is harmful to children, citing several academic studies.[11]   While this argument was not raised below, I note that the studies have no bearing on the instant dispute; for example, one surveyed Swedish high school seniors and found that sexual experiences prior to age 14 were “associated with problematic behaviours during later adolescence”[12] while another surveyed eighth and ninth grade Finnish students regarding the “associations between pubertal timing, sexual activity and self-reported depression....”[13]  No academic study, in any event, could abrogate students’ “right to receive information and ideas” through school library materials (Pico, 457 US at 872).

Contrary to petitioners’ arguments, the right to academic, intellectual, and personal freedom lies at the very heart of this dispute.  “The vocation of a librarian,” as a federal court recently put it, “requires a commitment to freedom of speech and the celebration of diverse viewpoints unlike that found in any other profession.”[14]  This is reflected in the fact that Intellectual Freedom is one of the six values of the State Education Department’s School Library Program Rubric, “a reflective self-assessment instrument that can be used to assess school library programs.”[15]  And school librarians, whose duties are educational in nature, enjoy academic freedom to the same extent as classroom teachers (8 NYCRR sections 30-1.1 [e], 30-1.8 [b], 80-2.8; see Appeal of the Board of Educ. of the Malverne Union Free Sch. Dist., 29 Ed Dept Rep 363, Decision No. 12,320, affd 181 AD2d 371 [3d Dept 1992]).

The U.S. Supreme Court has held that boards of education lack authority, under the First Amendment, to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” (Pico, 457 US at 854).  This rule derives from the Court’s opinion in West Virginia State Bd. of Educ. v Barnette, which held that West Virginia’s state educational agency could not expel students for failing to salute the flag (319 US 624 [1943] [Jackson, JJ.]).  Barnette affirmed the importance of intellectual diversity and its inextricable connection to freedom, stating that “educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual ....”  To do otherwise would “teach youth to discount important principles of our government as mere platitudes” (Barnette, 319 at 637).

I have considered petitioners’ remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED.

__________________

[1] The prior appeal was withdrawn shortly after the September vote.

[2] Respondent also argues that petitioners lack standing to maintain this appeal.  However, respondent’s “Objection to Instructional Materials and Controversial Issues” policy allows “[d]istrict community members” to submit objections to the district.  Given petitioner Marchitell’s status as a district resident and taxpayer, I find that he has standing to challenge the denial of his objection.  As such, I decline to dismiss the appeal on this basis (Appeal of McMillan, et al., 61 Ed Dept Rep, Decision No. 18,058).

[3] While boards of education have greater discretion to prescribe curricula than to select library materials, the standards of review in an appeal to the Commissioner are the same (compare Appeal of Munch, 47 Ed Dept Rep 199, Decision No. 15,667; see generally Pico, 457 US at 868-69).

[4] Paris Adult Theatre I v Slaton, 413 US 49, 64 (1973) (“The States, of course, may follow ... a ‘laissez-faire’ policy and drop all controls on commercialized obscenity, if that is what they prefer ...”).

[5] Miller v California, 413 US 15, 24 (1973).

[6] 378 US 184, 191 (1964) (citations omitted).

[7] Petitioners also allege that the challenged books are “pornography.”  This term, however, carries no legal significance.  It is not defined in the Penal Law and was only used, in the case cited by petitioners, for background purposes (see People v Keyes, 141 AD2d 227, 229 [3d Dept 1988] [referring generally to “eliminat(ion) of the child pornography industry” as a motivating factor in enacting Penal Law § 263.15, the crime of promoting a sexual performance by a child]).

[8] Additionally, while petitioners characterize the challenged books as “pornographic fiction,” both All Boys Aren’t Blue and Jesus Land are non-fiction.

[9] New York State Office of the Attorney General and New York State Education Department, Guidance to Promote Diversity, Equity, and Inclusion in New York Public Schools (Aug. 9, 2023), available at 

https://www.nysed.gov/sites/default/files/programs/diversity-equity-incl... 

In this respect, petitioner Marchitell complained in his initial challenge that “[t]here is great value in keeping sexual deviancy away from underage children.”  “Deviancy” has long been wielded as a pejorative to criminalize and delegitimize same-sex relationships.  See Jordan Blair Woods, LGBT Identity and Crime, 105 Cal. L. Rev. 667, 674 (2017) (arguing that “there was little space to view LGBT people in the criminal justice system other than as deviant sexual offenders” until the mid-1970s, when the decriminalization of sodomy enabled “scholars, advocates, and policymakers in the 1980s and 1990s to use antidiscrimination principles to move discussions about LGBT identity and crime away from viewing LGBT people as deviant sexual offenders ....”); see also Mishkin v State of N.Y., 383 US 502, 505 (1966) (observing that books in obscenity prosecution depicted “deviations” such as “homosexuality”).

[10] While a passage in Pico suggests that boards may remove books from their collections if it finds them “pervasively vulgar,” such considerations are not relevant here as respondent elected to maintain the books in its collection (457 US at 871).

[11] Petitioners did not submit copies of these studies.  However, I have obtained them with the assistance of the New York State Library and take official notice thereof (8 NYCRR 276.6).

[12] Asa A. Kastbom, et al., “Sexual debut before the age of 14 leads to poorer psychosocial health and risky behaviour in later life,” Acta Paediatrica (2015): 91-100.

[13] Tiitakerttu Kaltiala-Heino, et al., “Pubertal timing, sexual behaviour, and self-reported depression in middle adolescence,” Journal of Adolescence 26 (2003): 531-45.  The authors concluded that both the early onset of puberty as well as “the extent of young people’s reported intimate sexual experiences ... [were] associated with self-reported depression in middle adolescence in both sexes ....”

[14] Fayetteville Pub. Library et al. v Crawford County, Ark., et al., [WD Ark, July 29, 2023, 5:23 Civ 05086, Brooks, J.], at **12-14 (Mem Op and Order).

[15] New York State Education Department, “School Library Program Rubric,” Fall 2020, available at https://www.nysed.gov/curriculum-instruction/nysed-school-library-program-rubric (last accessed Apr. 25, 2024).