In the Matter of NYC C.L.A.S.H., Inc., Appellant,v.New York State Office of Parks, Recreation and Historic Preservation et al., Respondents.BriefN.Y.February 10, 2016Albany Co. Index No. 2218-13 Court of Appeals of the State of New York Matter of the Application of NYC C.L.A.S.H., INC., Appellant, -against- THE NEW YORK STATE OFFICE OF PARKS RECREATION & HISTORIC PRESERVATION, and ROSE HARVEY, in her official capacity as Commissioner of The New York State Office of Parks, Recreation & Historic Preservation, Respondents. BRIEF FOR RESPONDENT BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General VICTOR PALADINO Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents The Capitol Albany, New York 12224-0341 (518) 776-2012 Dated: August 17, 2015 Reproduced on Recycled Paper APL-2015-00033 To be argued by: VICTOR PALADINO Time requested: 15 minutes TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ..................................................................... iii PRELIMINARY STATEMENT ................................................................. 1 QUESTION PRESENTED ........................................................................ 3 STATEMENT OF THE CASE .................................................................. 4 A. Statutory Background ............................................................. 4 B. The Promulgation of 9 N.Y.C.R.R. § 386.1 ............................. 6 C. This Proceeding ..................................................................... 10 ARGUMENT The Office of Parks Acted Well Within its Statutory Authority When it Promulgated a Regulation that Prohibits Smoking in Designated Areas of State Parks ............................... 12 A. The challenged rule implements legislative policies expressed in article 3 of the Parks Law................................ 14 B. The coalescing circumstances identified in Boreali v. Axelrod are not present here. ................................................ 19 1. The regulation is not a comprehensive code laden with exceptions unrelated to the agency’s statutory mission. ........................................................ 21 2. The agency did not write on a clean slate or create a comprehensive set of rules without legislative guidance. ..................................................... 29 3. Legislative bills that died in committee do not undermine the Office of Parks’ authority to operate the state park system. .................................... 36 i Table of Contents (cont’d) PAGE Argument, B (cont’d) 4. The Office of Parks has special expertise in operating the state park system. ................................. 39 CONCLUSION ........................................................................................ 41 ii TABLE OF AUTHORITIES CASES PAGE Boreali v. Axelrod, 71 N.Y.2d 1 (1987) .................................................................. passim Campagna, Matter of v. Shaffer, 73 N.Y.2d 237 (1989) ...................................................................... 29 Clark v. Cuomo, 66 N.Y.2d 185 (1985) ...................................................................... 36 Consolidated Edison v. Public Serv. Comm’n, 47 N.Y.2d (1979), rev’d on other grounds, 447 U.S. 520 (1980) ........................................................................ 13 Gen. Elec. Cap. Corp. v. N.Y.S. Div. of Tax Appeals, 2 N.Y.3d 249 (2004) ........................................................................ 13 Greater New York Taxi Ass’n v. N.Y.C. Taxi and Limousine Commission, __ N.Y.3d __, 2015 N.Y. LEXIS 1432, 2015 N.Y. Slip Op. 05514 (June 25, 2015) .......................................................................... 12,24 NYC C.L.A.S.H., Inc., Matter of v. N.Y.S. Off. of Parks, 25 N.Y.3d 963 (2015) ...................................................................... 12 N.Y.S. Health Facilities Ass’n v. Axelrod, 77 N.Y.2d 340 (1991) ...................................................................... 29 New York Statewide Coalition of Hispanic Chambers of Commerce, Matter of v. N.Y.C. Dep’t of Health and Mental Hygiene, 23 N.Y.3d 681 (2014) ............................................................ 23,24,28 Niagara Mohawk Power Corp. v. Public Service Com., 69 N.Y.2d 365 (1987) ...................................................................... 13 iii Table of Authorities (cont’d) CASES (cont’d) PAGE Nicholas, Matter of v. Kahn, 47 N.Y.2d 24 (1979) ........................................................................ 12 Oswald N., Matter of, 87 N.Y.2d 103 (1995) ...................................................................... 36 United States v. Craft, 535 U.S. 274 (2002) ........................................................................ 36 STATE STATUTES C.P.L.R. article 78 ........................................................................................... 1 5601(b)(1) ........................................................................................ 11 Legislative Law article 5-B ......................................................................................... 9 § 87(1) ............................................................................................. 10 Parks Law article 3 ................................................................................... passim § 3.01 ....................................................................................... 4,14,15 § 3.02 ....................................................................................... passim § 3.09 ....................................................................................... 4,14,36 § 3.09(2) .................................................................................. passim § 3.09(5) .................................................................................. passim § 3.09(8) ............................................................................................ 5 § 20.02 ............................................................................................... 6 Public Health Law article 13-E ................................................................................ 31,34 § 225(5)(a) ....................................................................................... 20 § 1399-o(1) ...................................................................................... 31 § 1399-r(3) ............................................................................. 31,32,33 § 1399-x ...................................................................................... 31,32 iv Table of Authorities (cont’d) STATE STATUTES (cont’d) PAGE State Administrative Procedure Act § 202-a(1) ..................................................................................... 6,31 L. 1978, ch. 689, § 2 ................................................................................... 9 Hudson River Act, L. 1998, ch. 592 ........................................................... 9 STATE RULES AND REGULATIONS 7 N.Y.C.R.R. § 270.2 ............................................................................................. 32 9 N.Y.C.R.R. § 300-3.1(n) ................................................................................ 32,34 § 372.7 ............................................................................................. 24 § 375.1 ............................................................................................. 24 § 385.1 ........................................................................................ 24,35 § 386.1 ..................................................................................... passim § 386.1(a)(1) ...................................................................................... 6 § 386.1(a)(2) ...................................................................................... 7 § 386.1(b) .......................................................................................... 7 § 386.1(c) ........................................................................................... 7 § 1506.10 ......................................................................................... 33 § 4064.5 ........................................................................................... 33 12 N.Y.C.R.R. § 36-3.5(q) ....................................................................................... 33 14 N.Y.C.R.R. § 633.23 ........................................................................................... 33 18 N.Y.C.R.R. § 414.11(c) ....................................................................................... 33 21 N.Y.C.R.R. § 751.6(v) .......................................................................................... 9 v PRELIMINARY STATEMENT On February 27, 2013, the New York State Office of Parks, Recreation and Historic Preservation adopted a regulation, codified at 9 N.Y.C.R.R. § 386.1, that prohibits smoking in designated areas of state parks.1 Petitioner New York City Citizens Lobbying Against Smoker Harassment, or NYC C.L.A.S.H., is a not-for-profit corporation dedicated to advancing and promoting the interests of smokers. It commenced this combined article 78 proceeding and declaratory judgment action to challenge the validity of the regulation. The regulation prohibits smoking in designated outdoor areas under the Office of Parks’ jurisdiction. For the seven state parks in New York City, the regulation prohibits smoking except in designated areas where smoking is expressly permitted. Petitioner contends that the regulation exceeds the Office’s statutory authority. Supreme Court concluded that the Office of Parks exceeded its authority in promulgating the regulation, but the Appellate Division found otherwise and reversed (Record [“R.”] 4-11, 22). Applying the four-factor analysis in Boreali v. Axelrod, 71 N.Y.2d 1 (1987), the 1 The regulation is reproduced in the addendum to this brief at A.1. Appellate Division held that the Office of Parks “acted within its competence and authority by regulating the smoking activity of patrons at its parks and facilities” (R. 10). The Appellate Division correctly upheld 9 N.Y.C.R.R. § 386.1 as a lawful exercise of the Office of Parks’ authority under article 3 of the Parks, Recreation and Historic Preservation Law (“Parks Law”). In article 3, the Legislature delegated to the Office of Parks the power and responsibility to “operate and maintain” the state park system while providing “for the health, safety and welfare of the public using facilities under its jurisdiction.” See Parks Law §§ 3.09(2), (5). To this end, the Legislature gave the Office of Parks guidance in exercising this power, directing it “to conserve, protect and enhance” the state park system’s resources, and to provide “for the public enjoyment of and access to these resources in a manner that will protect them for future generations.” Id. § 3.02. Because the rule at issue here concerns smoking, it bears a superficial resemblance to the rules struck down in Boreali, which also concerned smoking. But that is where the similarity ends. Unlike the rules at issue in Boreali, the rule at issue here does not constitute a 2 comprehensive code that carves out exceptions unrelated to the agency’s statutory mission to operate and maintain the state park system. Nor does it establish a statewide smoking policy without legislative guidance. To the contrary, 9 N.Y.C.R.R. § 386.1 is much narrower in scope, regulating activities in limited areas within the confines of the park system managed by the Office of Parks. Indeed, like other rules governing patron conduct, the rule here resolves competing claims to finite park resources. It also promotes healthy recreation, helps keep the park system clean, and reduces the risk of wildfires. The rule is therefore faithful to the policies the Legislature established in article 3 of the Parks Law. Accordingly, this Court should affirm the Appellate Division’s order and declare that the Office of Parks acted within its statutory authority in promulgating 9 N.Y.C.R.R. § 386.1. QUESTION PRESENTED In promulgating a rule that prohibits smoking in designated areas in state parks, recreational facilities and historic sites, did the Office of Parks act within its statutory authority under Parks Law article 3 to operate and maintain the state park system? 3 STATEMENT OF THE CASE A. Statutory Background In article 3 of the Parks Law, the Legislature declared that the “establishment and maintenance of a statewide system of parks, recreation and historic preservation” are “policies of the state.” Parks Law § 3.01. The Legislature also declared that “the stewardship of the natural, ecological, historic, cultural and recreational resources” within the state park system “is a primary responsibility of the state” that is best served by charging the Office of Parks with responsibility to oversee that system. Id. In Parks Law § 3.02, the Legislature established certain “guiding principles” for the Office of Parks to follow in fulfilling its statutory mission. It directed the agency to operate and maintain the state park system “to conserve, protect and enhance the natural, ecological, historic, cultural and recreational resources contained therein and to provide for the public enjoyment of and access to these resources in a manner which will protect them for future generations.” Id. To this end, in Parks Law § 3.09, the Legislature granted the Office of Parks, by and through its Commissioner, jurisdictional 4 authority over certain state parks, recreational facilities, and historic sites (collectively, the “state park system”).2 Over 60 million people annually visit the 180 parks or preserves and 35 historic sites that the Office of Parks now oversees. The total geographic area of the state park system encompasses about 350,000 acres, making it the third largest state park system in the nation, behind only Alaska and California. The system includes 133 public playgrounds and myriad other recreational facilities (R. 161). The Legislature specifically directed the Office of Parks to “operate and maintain” the state park system, Parks Law § 3.09(2), and to “provide for the health, safety and welfare of the public using facilities under its jurisdiction,” id. § 3.09(5). The Legislature also authorized the Office’s Commissioner to “[a]dopt, amend or rescind such rules, regulations and orders as may be necessary or convenient to carry out the functions, powers and duties of the office.” Id. § 3.09(8). And New York law requires all agencies to consider costs when developing 2 Other state lands, including state lands located in the Adirondack and Catskill Parks, are managed by the New York State Department of Environmental Conservation. The regulation challenged here applies only to parks, recreational facilities and historic sites under the jurisdiction of the Office of Parks. 5 rules, and to “consider utilizing approaches which are designed to avoid undue deleterious economic effects.” State Administrative Procedure Act (“SAPA”) § 202-a(1). The state park system also includes environmentally sensitive arboretums and preserves (R. 165-166, ¶ 25 & n.2). The responsibility for managing “all unique, rare, threatened or endangered species of flora and fauna” in arboretums and preserves is entrusted to the Commissioner under Parks Law § 20.02. B. The Promulgation of 9 N.Y.C.R.R. § 386.1 Pursuant to the powers granted them in article 3 of the Parks Law, respondents promulgated 9 N.Y.C.R.R. § 386.1, which became effective on February 27, 2013 (R. 160, 181-185, 202-204). The regulation prohibits smoking tobacco in limited outdoor locations designated by the Commissioner as no-smoking areas in state parks, recreational facilities and historic sites. The regulation states that examples of such no-smoking areas include playgrounds, swimming pool decks, beaches, preserves, sport or athletic fields. 9 N.Y.C.R.R. § 386.1(a)(1). The regulation also prohibits smoking in the seven state parks located in New York City, “with the exception that the 6 Commissioner may allow smoking in limited areas within each park.” Id. § 386.1(a)(2). The regulation provides further that the Commissioner will approve and periodically update a statewide list of designated no-smoking areas that will be published on the agency’s public website and authorizes the installation of signage at designated no-smoking areas. Id. §§ 386.1(b), (c). The regulation does not altogether ban smoking in state parks; indeed, outdoor locations currently designated as no-smoking areas comprise less than 5% of the total acreage of the state park system (R. 166-167, 191, 196). Moreover, smoking continues to be allowed in most campsites, open-air picnic areas, parking areas and undeveloped areas of large parks (R. 166-167, 191). Even in state parks located in New York City that are not preserves, the regulation does not ban smoking entirely, but rather permits smoking in areas designated for smoking, including many sidewalks (R. 166, 191, 194-195). The Office of Parks promulgated the regulation to improve park operations and further multiple salutary statutory purposes. Among other things, the Office determined that reducing the public’s exposure to secondhand tobacco smoke and tobacco litter in areas of the State’s 7 parks where children and families recreate would enhance its visitors’ experiences (R. 165, 178, 195). In such areas, the rule would reduce irritating secondhand smoke, cut down on conflicts between smokers and non-smokers, and enhance the experience of those seeking to use the park for healthy recreational activities (R. 164-165, 167, 178, 186, 195). Indeed, a recent survey of park and beach patrons found strong support for the designation of no-smoking areas (R. 165, 178, 195). The Office of Parks additionally determined that the regulation would reduce the amount of public resources spent on cleaning up litter from cigarette butts while enhancing its ability to protect state parks, which have experienced a number of wildfires in recent years due to hot and dry weather (R. 165, 167, 178, 186, 195). And for preserves, the Office of Parks determined that a smoking ban was necessary to protect their highly sensitive flora and fauna (R. 165-166, ¶ 25 & n.2; 209-210, 212). For state parks located within New York City, the agency reasoned that a broader restriction on smoking was justified for two reasons. Six of the seven state parks located in New York City are small 8 and highly trafficked;3 for these parks, a broader ban was needed to serve these regulatory purposes (R. 194-195, 204). And visitors to these parks can readily access a sidewalk or other area outside these parks in order to smoke (R. 196). The seventh state park in New York City, the Clay Pit Ponds State Park Preserve located on Staten Island, is a nature preserve, and is treated no differently from preserves throughout the State. In addition, the Office of Parks reasoned that the state parks contained within New York City should be regulated in a manner consistent with other parks: both city-run parks, where smoking is already prohibited by local law (R.166, 194-195), and the Hudson River Park, a statutorily-created park, see Hudson River Park Act, L. 1998, ch. 592, where smoking has been prohibited since April 2013. See 21 N.Y.C.R.R. § 751.6(v). During the rule-making process, the Legislature’s Administrative Regulations Review Commission reviewed the proposed regulation (R. 167, 186). This Commission, established by article 5-B of the Legislative Law, see L. 1978 ch. 689 § 2, oversees the rule-making 3 These six parks are Riverbank, Roberto Clemente, East River, Gantry Plaza, Bayswater, and Four Freedoms State Parks (R. 194). 9 process; examines rules to assess consistency with legislative authority and legislative intent; and evaluates any implications for the economy, governmental operations, and affected parties (R. 167). See Legislative Law § 87(1). The Commission determined that the regulation was well within the agency’s delegated authority and reasonably served the public interest; accordingly, the Commission urged its adoption (R. 167, 186). C. This Proceeding Petitioner, a not-for-profit corporation dedicated to advancing and promoting the interests of smokers, commenced this combined action/proceeding in Supreme Court, Albany County, to challenge the validity of 9 N.Y.C.R.R. § 386.1. Petitioner challenged the regulation on two grounds, only one of which it pursues here. First, petitioner argued that the Office of Parks exceeded its statutory authority in promulgating the regulation (R. 39-40). Second, though petitioner has now expressly abandoned the argument in its brief to the Court (Br. at 3), petitioner argued that the regulation’s broader ban on smoking in state parks within New York City was arbitrary and capricious (R. 41-42). 10 Relying heavily on Boreali v. Axelrod, 71 N.Y.2d 1 (1987), in which this Court invalidated the Public Health Council’s regulatory ban on all indoor smoking in a wide array of public and private places throughout the State, Supreme Court found that the Office of Parks exceeded its statutory authority in promulgating 9 N.Y.C.R.R. § 386.1 (R. 20-22). The court did not reach petitioner’s alternative contention that the regulation was arbitrary and capricious in its more stringent restriction of smoking in state parks located in New York City (R. 22). The Appellate Division, Third Department, rejected both of petitioner’s contentions and reversed, declaring “that 9 N.Y.C.R.R. 386.1 has not been shown to be unconstitutional” (R. 11). Applying the Boreali factors, the Appellate Division concluded that the Office of Parks “has acted within its competence and authority by regulating the smoking activity of patrons at its parks and facilities” (R. 10). Petitioner simultaneously moved for leave to appeal and appealed as of right under C.P.L.R. 5601(b)(1). Petitioner’s notice of appeal expressly limits its appeal to the constitutionality of 9 N.Y.C.R.R. § 386.1, thereby abandoning its challenge to the regulation’s rationality (R. 2). Finding that petitioner had an appeal as of right, this Court 11 denied the motion for leave as unnecessary. Matter of NYC C.L.A.S.H., Inc. v. N.Y.S. Off. of Parks, 25 N.Y.3d 963 (2015). ARGUMENT THE OFFICE OF PARKS ACTED WELL WITHIN ITS STATUTORY AUTHORITY WHEN IT PROMULGATED A REGULATION THAT PROHIBITS SMOKING IN DESIGNATED AREAS OF STATE PARKS The Office of Parks, as an administrative agency, possesses the powers expressly delegated by the Legislature as well as those powers required by necessary implication. Greater New York Taxi Ass’n v. N.Y.C. Taxi and Limousine Commission, __ N.Y.3d __ , 2015 N.Y. LEXIS 1432 at *9, 2015 N.Y. Slip Op. 05514 (June 25, 2015). It is a basic principle of administrative law that “the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation.” Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979). Under this principle, “‘an agency can adopt regulations that go beyond the text of [its enabling] legislation, provided they are not inconsistent with the statutory language or its underlying purposes.’” Greater New York Taxi Ass’n, 2015 N.Y. LEXIS 1432 at *9 (quoting 12 Gen. Elec. Cap. Corp. v. N.Y.S. Div. of Tax Appeals, 2 N.Y.3d 249, 254 [2004]). When, as here, the Legislature has delegated authority to a state agency, “specifying only the goals to be achieved and policies to be promoted, while leaving the implementation of a program to be worked out by an administrative body . . . the sheer breadth of delegated authority precludes a precise demarcation of the line beyond which the agency may not tread.” Consolidated Edison v. Public Serv. Comm’n, 47 N.Y.2d 94, 102 (1979), rev’d on other grounds, 447 U.S. 530 (1980). Because the boundary between proper administrative rule-making and legislative policy-making is “difficult-to-define,” there is no rigid test for determining whether an administrative agency has exceeded its statutory authority. Boreali, 71 N.Y.2d at 11. Courts must engage in “‘a realistic appraisal of the . . . situation to determine whether the administrative action reasonably promotes or transgresses the pronounced legislative judgment.’” Niagara Mohawk Power Corp. v. Public Service Com., 69 N.Y.2d 365, 372 (1987) (quoting Consolidated Edison, 47 N.Y.2d at 102). 13 In promulgating the smoking regulation at issue here, the Office of Parks acted pursuant to the powers expressly and properly delegated to it by Parks Law article 3. Nothing in Boreali suggests otherwise. Construing Parks Law article 3 to encompass the regulatory authority that the Office of Parks exercised here does not run afoul of the separation of powers doctrine. Accordingly, 9 N.Y.C.R.R. § 386.1 represents a valid exercise of the Office of Parks’ properly delegated legislative authority. A. The challenged rule implements legislative policies expressed in article 3 of the Parks Law. In prohibiting smoking in limited outdoor locations designated by the Commissioner, the Office of Parks exercised the authority expressly delegated to it by Parks Law § 3.09 to “operate and maintain” the State’s parks, recreational facilities and historic sites and to “provide for the health, safety and welfare of the public using facilities under its jurisdiction.” Parks Law §§ 3.09(2), (5). And it exercised that authority in accordance with the legislative policies and guiding principles set forth for the agency in Parks Law §§ 3.01 and 3.02. 14 The Legislature established the overarching policies governing the state park system. Parks Law § 3.01 declares that the establishment and maintenance of the state park system are policies of the State that enhance and promote the general welfare of the State’s citizens. That provision further entrusts the Office of Parks with “the stewardship of the natural, ecological, historic, cultural and recreational resources” within the state park system. And Parks Law § 3.02 instructs the Office of Parks to operate and maintain this state system to “conserve, protect and enhance” these resources and “to provide for the public enjoyment and access to [them].” The Office of Parks’ regulation establishing limited no-smoking areas in designated outdoor locations promotes these legislative objectives in four different respects. First, the regulation enhances the public’s ability to enjoy park resources by limiting irritating exposure to secondhand smoke, reducing unsightly litter from cigarettes and cigars, and reducing conflicts between smokers and non-smokers in areas where park patrons congregate (R. 178, 187, 195-196). In fact, the agency had received numerous complaints from park patrons about these very issues (R. 178, 187, 195-196, 202-203). The Legislature, in authorizing the 15 Office to “operate and maintain” the park system and “provide for the public enjoyment” of that system, empowered the agency to address park patrons’ complaints and resolve competing patron preferences. Parks Law § 3.02. Resolution of the conflicting interests of park patrons is part and parcel of the agency’s statutory responsibility to operate and manage the state park system. Second, the no-smoking rule assures that parks will meet patron demands for areas that are especially conducive to healthy recreational activities, thereby not only enhancing the experience of park patrons who use them, but also implementing the Office of Parks’ authority to provide “for the health, safety and welfare of the public using facilities under its jurisdiction.” Parks Law § 3.09(5). Through this grant of authority, the Legislature has empowered the Office of Parks to promulgate rules that promote a healthy environment for its patrons in areas where large numbers of people congregate. By limiting park patrons’ exposure to secondhand smoke, a well-documented public health hazard, and providing a smoke-free environment, the challenged rule facilitates healthy recreation, especially at the 133 playgrounds where children congregate (R. 164-165, 178, 195). 16 Third, the designation of no-smoking areas furthers the salutary goals of reducing park maintenance costs incurred in cleaning up cigarette butts. Cigarette butt litter is not only unsightly but expensive to clean (R. 165, 178, 195). Some smokers, unfortunately, use public parks and beaches as ashtrays. By reducing the agency’s maintenance costs, the challenged rule furthers the Office of Parks’ mission to operate and maintain the state park system in an efficient, cost- effective manner. Finally, the Office’s smoking restriction protects parks from fires. In recent years, New York’s parks have experienced a number of wildfires due to hot and dry weather (R. 167, 186). Fires in state parks likely caused by discarded cigarettes have destroyed thousands of acres (R. 167, 186). The challenged rule enhances the Office’s ability to protect New York’s parks and their visitors while preventing devastation. To establish that the Office of Parks engaged in improper policymaking, petitioner seems to suggest that the Office’s stated justifications for the regulation are pretextual. For this purpose, petitioner analyzes each justification in isolation and attempts to show 17 that, for that single justification, a different measure would have been more appropriate. But a stated justification for a regulation is not pretextual merely because the stated goal could be met more efficiently by other means. Petitioner’s argument ignores that the regulation is designed to serve multiple goals, and that serving several goals at once may require choosing a measure that is not perfectly tailored to any single goal. For instance, petitioner characterizes as “vague” and “overstated” the Office’s claim that the rule will save money by eliminating the need to clean up cigarette and cigar butts, arguing that if reducing litter was “truly one of the agency’s goals,” the Office could have simply maintained additional trash bins, posted no-littering signs, and more vigorously enforced littering regulations (Br. at 32). But the money- saving justification for the regulation is just one of four justifications, an added bonus, really, of adopting a measure that enhances enjoyment of the parks and assures areas conducive to healthy recreation. The fact that the regulation may not be perfectly drawn to save money does not establish that the Office of Parks was not seeking to save money, or that the Office was engaged in improper policymaking. 18 An administrative agency does not exceed its authority whenever there are alternative, or less restrictive, ways to achieve its goals. Likewise misguided is petitioner’s argument that fire prevention cannot be the Office’s real reason for restricting smoking in the state park system because the regulation permits smoking in locations where wildfires are most likely to start (Br. at 33). Once again, petitioner overlooks that fire prevention is not the only reason for the regulation; it is simply one of several. And while broader smoking restrictions would provide more fire prevention, the risk of fires is nonetheless reduced wherever smoking is prohibited in the state park system. The regulation thus advances the goal of fire prevention, while serving other goals as well. And the Office could rationally decide to focus first on preventing fires in areas where people congregate. B. The coalescing circumstances identified in Boreali v. Axelrod are not present here. Contrary to petitioner’s contentions, Boreali does not support a different result. This Court in Boreali examined indoor smoking restrictions promulgated by the Public Health Council pursuant to that agency’s broad authority to establish sanitary regulations “deal[ing] 19 with any matters affecting the . . . preservation and improvement of public health.” Public Health Law § 225(5)(a). The restriction bore only the most superficial similarity to the regulation at issue here; it similarly restricted smoking, but it prohibited all smoking in a wide variety of indoor areas—both private and public—throughout the State. See Boreali, 71 N.Y.2d at 7. Indeed, the Public Health Council’s restriction would likely have affected nearly every member of the public. And the restriction was issued at a time when the effects of exposure to secondhand smoke were still uncertain and the subject was a matter of heated public debate and extensive lobbying by a variety of factions. Id. at 13. In that context, the Boreali Court explained that the confluence of four circumstances led it to conclude that the Public Health Council’s rules violated the separation of powers doctrine: (1) the agency carved out exceptions that reflected the weighing of stated goals with competing social concerns, (2) the agency did not merely fill in the gaps of broad legislation, but enacted what amounted to a detailed code on an entirely clean slate with no legislative guidance, (3) the agency acted in an area in which the Legislature had tried and failed to reach 20 agreement in the face of public debate and vigorous lobbying, and (4) the agency had no special expertise or technical competence in the area it purported to regulate. Id. at 12-14. These “factors are not mandatory, need not be weighed evenly, and are essentially guidelines for conducting an analysis of an agency’s exercise of power.” Greater New York Taxi Ass’n, 2015 NY Slip Op. 05514 at *15. Not one of the Boreali factors supports petitioner’s challenge. 1. The regulation is not a comprehensive code laden with exceptions unrelated to the agency’s statutory mission. Unlike the smoking rules invalidated in Boreali, the limited smoking regulation promulgated by the Office of Parks does not carve out exceptions unrelated to the agency’s mission to operate and maintain the state park system. For this reason, the Appellate Division correctly found that the first Boreali factor supports the rule’s validity (R. 7-8). Petitioner has continued to change its argument concerning the first Boreali factor throughout this litigation. In Supreme Court, petitioner expressly characterized the first Boreali factor as irrelevant (R. 20 n.2). In the Appellate Division, petitioner argued that the Office 21 of Parks’ rule implicates the first Boreali factor, but for a different reason from the one advanced here. In the Appellate Division, petitioner maintained that in adopting the rule, the Office of Parks took into account the operational savings it would realize from not having to pick up cigarette and cigar butts, and thereby gave improper consideration to “economic concerns” (Pet.’s App. Div. Br. at 9, excerpt attached hereto in addendum at A.3). The Appellate Division correctly dispatched this contention, concluding that an agency’s consideration of operational savings “is not the kind of improper balancing proscribed under Boreali” (R. 7). The Office’s consideration of its own cost savings is not only consistent with its statutory mission, but legally required. In delegating to the Office the power to “operate and maintain” the state park system, see Parks Law § 3.09(2), the Legislature, by necessary implication, directed the Office to perform that function in a cost-efficient and economic manner. To the extent that the Office took account of the fiscal savings it would realize from not having to clean up smoking waste, it did so under its statutory authorization to “operate and maintain” the state park system in a fiscally responsible manner. 22 Indeed, the Legislature’s Administrative Regulations Review Commission cited the Office’s anticipated savings in clean-up costs as a factor in support of the rule (R. 186). In this Court, petitioner abandons this argument, and contends instead that in formulating the smoking restrictions, the Office of Parks engaged in improper policy-making by attempting to balance the interests of smokers and non-smokers to reach a suitable compromise (Br. at 10-15). Petitioner’s newfound contention lacks merit. Agency rule-making frequently entails balancing competing interests. Such balancing runs the risk of engaging in legislative policy- making only when it proceeds without legislative guidance or when the agency considers factors unrelated to its statutory mission. The smoking restrictions at issue here do not suffer from either flaw, and are thus utterly unlike the regulations struck down in Boreali, 71 N.Y.2d at 7, and in Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health and Mental Hygiene, 23 N.Y.3d 681 (2014). In Boreali, the Court held that the smoking ban promulgated by the State Public Health Council was invalid as a detailed and ad hoc scheme, “laden with exceptions based 23 solely upon economic and social concerns,” and thus designed to placate economic interests, in a manner outside the expertise and the delegated authority of the Council. 71 N.Y.2d at 11-12. In New York Statewide Coalition, the Court held that regulations restricting the size of sugary drink containers, promulgated by the New York City Board of Health, reflected an improper quasi-legislative “compromise” with the interests of the beverage industry, taking into account “tax implications” for small businesses, similarly outside the Board’s expertise and delegated authority. New York Statewide Coalition, 23 N.Y.3d at 698. By contrast, the Office of Parks’ rule prohibiting smoking in limited designated areas is much like many rules the agency has promulgated over the years to regulate the conduct of park patrons. These rules facilitate effective park operations, reduce conflicts between park patrons, and protect and enhance the overall patron experience (R. 162). For example, the Office has promulgated rules that impose quiet hours in campgrounds and prohibit unreasonable noise, unleashed pets, consumption of alcohol, glass containers in swimming areas, and uncontained fires. See 9 N.Y.C.R.R. §§ 372.7, 375.1, 385.1. Like the smoking regulation, these regulations address nuisance activities that 24 infringe upon and inconvenience other park visitors and their children, lead to conflicts between park patrons, cause unsightly and burdensome litter, and trigger forest fires. These regulations, and the regulation at issue in this case, are all similarly authorized by the Legislature’s directive that the Office of Parks “operate and maintain” the State’s parks, and “provide for the health, safety of welfare of the public” using those parks in a manner that will conserve and protect them, while enhancing the public’s enjoyment consistent with their use for recreational purposes. Parks Law § 3.09(2). The Office necessarily must balance competing patron preferences when it formulates rules regulating patron conduct. These rules often reflect compromises among competing interests. For instance, a rule that allows dogs in state parks but requires them to be leashed reflects a compromise between the interests of dog owners and those park patrons who do not enjoy dogs playing unleashed. Likewise, walkers, runners, bicyclists, and rollerbladers compete for the use of park roadways. A park rule that restricts bicycling or rollerblading to certain roads or times of day reflects a compromise. Similarly, the interests of those who enjoy loud music conflict with the interests of those who 25 enjoy peace and quiet. As steward and manager of the state park system, the Office of Parks must weigh all of these competing patron preferences when it promulgates rules and regulations regulating patron conduct. This balancing of patron preferences is not legislative policy- making, but rather is part and parcel of the Office of Parks’ responsibility to “operate and maintain” the state’s parks while “provid[ing] for the health, safety of welfare of” park patrons. Parks Law § 3.09(2). In formulating the smoking restrictions, the Office did not consider interests unrelated to its mission. Rather, the smoking restrictions are faithful to the statutory “guiding principles,” specifically the directive to “protect and enhance” park resources and “provide for the public enjoyment of and access to these resources in a manner which will protect them for future generations.” Parks Law § 3.02. Under the plain language of the regulation, the Office of Parks designated no-smoking areas primarily in areas where large numbers of people, particularly families with children, congregate or where special resources, such as preserves, require protection. The regulation 26 advances the agency’s statutory mission. Thus, the first Boreali factor supports the challenged regulation. Petitioner attempts to distinguish these other conduct-regulating rules, but cannot do so persuasively. It claims that restricting smoking is different because smoking regulation requires an agency to “wrestle with complex value judgments” and implicates “questions of personal liberty” (Br. at 33-34). But park rules regulating the drinking of alcohol, the playing of music, and the walking of pets all implicate personal liberty and require the Office, as park manager, to balance competing patron preferences and make value judgments. The Legislature entrusted the Office with the responsibility of making those judgments consistent with the policies and goals expressed in article 3 of the Parks Law. Nor is there merit to petitioner’s argument that the Office of Parks engaged in improper policymaking when it considered and rejected certain other methods of implementing smoking restriction in the state park system (Br. at 14-15). Specifically, the Office considered three alternatives: voluntary compliance, an outright ban in all state parks, and designation and enforcement of no-smoking areas 27 (R. 87-88, 97). But it cannot be improper for an agency to consider alternative methods for fulfilling its statutory mission before selecting one; that is the hallmark of rational and responsible rule-making. Nothing in New York Statewide Coalition suggests otherwise. 23 N.Y.3d at 697 (“cost-benefit analysis is the essence of reasonable regulation”). Had the Office not considered alternatives, it would have faced claims that its regulation was irrational. Petitioner also claims that the Office engaged in improper policymaking by imposing restrictions for New York City that are different from those applicable elsewhere in the State. Petitioner observes that the Office established a near-total ban on smoking in state parks in New York City, whereas at most other parks the agency “has relied on an ad hoc approach,” prohibiting smoking primarily in areas where people congregate (Br. at 15-16). This argument reflects an improper attempt to revive petitioner’s challenge to the rationality of the regulation’s differential treatment of state parks in New York City, an argument petitioner expressly abandoned in its notice of appeal (R. 2) and brief (Br. at 3). And the Appellate Division properly rejected this challenge in any event (R. 10-11). If the Office is authorized to 28 promulgate rules regulating the conduct of park patrons, then by necessary implication the Office may tailor those rules to local conditions without violating the separation-of-powers doctrine. 2. The agency did not write on a clean slate or create a comprehensive set of rules without legislative guidance. The second Boreali factor also supports the regulation at issue here. The Office of Parks did not write on a clean slate, as did the Public Health Council in Boreali. A key feature in Boreali was that the Legislature had never articulated any policy regarding indoor smoking. See Matter of Campagna v. Shaffer, 73 N.Y.2d 237, 243 (1989) (explaining Boreali). In contrast, in N.Y.S. Health Facilities Ass’n v. Axelrod, 77 N.Y.2d 340 (1991), this Court upheld Health Department regulations designed to prevent discrimination against Medicaid patients by requiring nursing homes to admit a certain minimum percentage of Medicaid patients. The regulations at issue fell within the agency’s authority, the Court held, because the Legislature, not the agency, had “made the critical policy decisions,” i.e., prohibiting discrimination, and the regulations merely implemented those policies. Id. at 349. 29 Similarly here, the Legislature, not the Office of Parks, established the overarching policies and goals. These polices and goals guided the agency’s determination to “operate and maintain” the state park system and “provide for the health, safety and welfare of the public using facilities under its jurisdiction” with a regulation prohibiting smoking in limited designated areas. Among other things, the Legislature provided the “guiding principles” that the Office of Parks should operate and maintain the state park system “to conserve, protect and enhance the natural, ecological, historic, cultural and recreational resources contained therein and to provide for the public enjoyment of and access to these resources in a manner which will protect them for future generations.” Parks Law § 3.02. As demonstrated in Point I(A), supra, the regulation at issue implements the Office’s duties in accordance with these guiding principles. Eliminating smoking from designated areas of the parks, particularly those where families and children congregate, enhances not only the natural resources of the parks but also the experiences of those who seek to enjoy them. It also serves the “health, safety and welfare of the public using facilities under [the Office of Parks’] jurisdiction,” 30 Parks Law § 3.09(5), by providing areas conducive to healthy recreational activities, while reducing the costs of operating and maintaining the parks, recreational facilities and historic sites. See id. § 3.09(2); see also SAPA § 202-a(1) (requiring agencies to consider costs in promulgating rules). Once again, the Legislature, not the agency, made the broad policy choices; the challenged regulation simply fills in the operational details. Rather than discuss these guiding principles, petitioner argues that the Office’s smoking restrictions conflict with article 13-E of the Public Health Law (“PHL”) (Br. at 20-24). PHL § 1399-o(1) prohibits smoking in certain outdoor areas, and PHL § 1399-x prohibits the Commissioner of Health from promulgating rules or regulations to implement article 13-E or to “create, limit or enlarge any smoking restrictions.” According to petitioner, the Legislature’s decision to prohibit outdoor smoking at certain specified locations evinces “an intent to maintain the status quo at all other outdoor locations regarding smoking prohibitions” (Br. at 21). Petitioner’s argument fails for two reasons. First, the plain language of PHL § 1399-r(3) contemplates that smoking may be 31 prohibited by other state agencies and political subdivisions. The statute instructs that “[s]moking may not be permitted where prohibited by any other law, rule or regulation of any state agency or any political subdivision of the state.” PHL § 1399-r(3) (emphasis added). This subdivision also authorizes local governments “to adopt and enforce additional local law, ordinances, or regulations which comply with at least the minimum applicable standards set forth in this article.” Thus, while the Legislature curbed the authority of the State Commissioner of Health to impose broad smoking restrictions (PHL § 1399-x), it expressly authorized local governments and other state agencies to impose smoking restrictions in areas under their jurisdiction (PHL § 1399-r[3]). And in accordance with PHL § 1399-r(3), many other state agencies have adopted rules restricting smoking in areas under their jurisdiction. See, e.g., 7 N.Y.C.R.R. § 270.2 (rule 122.10) (Department of Corrections and Community Supervision provides that inmates “may only smoke outdoors in designated areas”); 9 N.Y.C.R.R. § 300-3.1(n) (Office of General Services prohibits smoking “in any area, building or portion of a building, structure or portion of a structure, on State 32 property where signs are in place advising that smoking is prohibited at such location”); 9 N.Y.C.R.R. § 1506.10 (Division of Housing prohibits smoking in motor vehicle storage facilities); 9 N.Y.C.R.R. § 4064.5 (Gaming Commission prohibits amateur riders and jockeys from smoking while in racing colors); 12 N.Y.C.R.R. § 36-3.5(q) (Department of Labor prohibits smoking “in any summer theatre while occupied as a place of public assembly except as incidental to a performance”); 14 N.Y.C.R.R. § 633.23 (Office of People With Developmental Disabilities prohibits smoking in facilities it certifies or operates); 18 N.Y.C.R.R. § 414.11(c) (Office of Children and Family Services prohibits “smoking in indoor areas, in outdoor areas in use by children and in vehicles while children are being transported” for school age child care programs). Petitioner concedes that these other smoking restrictions are authorized by PHL § 1399-r(3), but seeks to distinguish them as either expressly authorized or “less comprehensive” and “confined to one narrowly defined class of persons or situation” (Br. at 22-24). But petitioner overlooks that the rule at issue here is similarly confined to the areas under the jurisdiction of the Office of Parks, namely parks, 33 recreational facilities, and historic sites. Indeed, the regulation at issue here is no more comprehensive than the Office of General Services’ rule restricting smoking on state property. See 9 N.Y.C.R.R. § 300-3.1(n). Second, the provisions of PHL article 13-E may readily be harmonized with those of article 3 of the Parks Law. Article 13-E of the PHL specifically restricts the authority of the Commissioner of Health to impose smoking restrictions as a public health measure. The Public Health Law does not prohibit local governments from imposing more stringent smoking restrictions to protect the public health in their communities, nor does it prohibit other state agencies from restricting smoking in areas under their jurisdiction. Article 3 of the Parks Law, on the other hand, empowers the Office of Parks and its Commissioner to operate and maintain the state park system; provide for the health, safety, and welfare of park patrons; and conserve and protect state park resources. The Office’s restrictions on smoking in designated areas within the state park system do not purport to regulate public health. Rather, they address management and operational issues facing the state park system. 34 The Office restricts smoking in the parks for much the same reason as it restricts alcohol consumption in the parks. See 9 N.Y.C.R.R. § 385.1. The purpose of restricting alcohol consumption in the parks is in large part to regulate the behavior of patrons in order to maintain peace and order, reduce litter from drinking, and maintain the parks’ natural beauty. See N.Y.S. Register, May 4, 2011 at 16-17 (attached to this brief in addendum at A.24-25). The rule at issue here serves these same purposes. It is designed to reduce the risk of arguments and disputes between park patrons, provide space for healthy (smoke-free) recreation, reduce litter and the risk of fires, and help keep the parks beautiful for the enjoyment of all. The Office’s smoking rule is thus a management and operational measure. Just as the Office’s alcohol-consumption rule does not impermissibly arrogate the Liquor Authority’s statutory authority, the Office’s no-smoking rule does not impermissibly arrogate the authority of the Legislature or any other agency to regulate public health. 35 3. Legislative bills that died in committee do not undermine the Office of Parks’ authority to operate the state park system. The Office of Parks’ authority is not undermined merely because several legislative bills concerning smoking in public parks were introduced and died in committee (R. 21; Br. at 27-28 [citing bills]). As a general matter, “failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute.” United States v. Craft, 535 U.S. 274, 287 (2002). Indeed, “‘legislative inaction, because of its inherent ambiguity, affords the most dubious foundation for drawing positive inferences.’” Matter of Oswald N., 87 N.Y.2d 98, 103 n. 1 (1995) (quoting Clark v. Cuomo, 66 N.Y.2d 185, 190 [1985]). A Legislature could have any number of reasons for declining to act in a given area. In this case, the Legislature could have declined to act for the simple reason that Parks Law § 3.09 already delegates to the Office of Parks the authority to designate no-smoking areas. In fact, the Legislature’s own Administrative Regulations Review Commission came to this very conclusion in its comments endorsing the regulation (R. 167, 186). 36 To be sure, the Boreali Court cited failed legislative attempts to enact indoor smoking laws as evidence that the Public Health Council exceeded its statutory authority. But the Boreali Court regarded legislative inaction as relevant to its analysis for three reasons not present here. First, the Boreali Court deemed legislative inaction as relevant only because all of the other coalescing factors were present. 71 N.Y.2d at 13. Here, none of those other factors is present. The challenged regulation does not make broad social and economic public policy; rather, it implements the Office of Parks’ authority under article 3 of the Parks Law. Prohibiting smoking in certain areas while allowing it in others is an operational mechanism for dealing with competing recreational needs, protecting resources and handling litter, nuisance, and fire safety issues. Second, in Boreali, the nature of the legislative inaction was quite different. In Boreali, the Legislature had seriously debated smoking legislation before declining to enact it. Indeed, a number of smoking bills had actually been passed by the Assembly, but had died in the 37 relevant Senate Committee.4 In sharp contrast, the proposed bills relevant here never made it out of committee in either house (Br. at 27-28) (citing bills). While petitioner cites three bills that passed one house, none concerned smoking in the state park system; all three addressed smoking in playgrounds (Br. at 28 n.18, 19 & 20) (A07469/S00684, A01137/S03242, and A06451). Given the myriad reasons why an individual legislator might wish to introduce a bill, and the ease by which a legislator may do so, the mere fact that several bills generally addressing smoking in parks were introduced—but progressed no further—cannot establish that the subject of those bills as a policy matter is beyond the regulatory purview of the Office of Parks. And third, the legislative debate over the proposed bills in Boreali took place “in the face of substantial public debate and vigorous lobbying by a variety of interesting factions.” Boreali, 71 N.Y.2d at 13. Smoking regulation is far less controversial today than it was in the mid-1980s when Boreali was decided. Indeed, NYC CLASH is the only 4 A legislative history of the smoking bills cited in Boreali, copied from the record on appeal in that case, is attached as an addendum to this brief (A.8-21). 38 organization to formally object to the regulation; 91% of the comments received by the Office of Parks supported the regulation (R. 186). Thus, in contrast to Boreali, there is little reason to ascribe any significance to the Legislature’s inaction in this case. 4. The Office of Parks has special expertise in operating the state park system. As for the final Boreali factor, petitioner argues that special expertise or technical competence is no longer required to know that exposure to passive, secondhand smoke is deleterious to the health of smokers and non-smokers (Br. at 31, citing R. 21). The well-accepted knowledge that secondhand smoke is harmful, however, is beside the point. The regulation of smoking in state parks is fundamentally a management issue, because smoking in certain areas of the park system creates conflicts among patrons, produces litter, is incompatible with healthy recreation, and causes fires that threaten to destroy flora and fauna. As a result, the relevant expertise is not medical in nature, but rather the expertise required to manage parks, recreational facilities, and historic sites. 39 As the Appellate Division recognized (R. 10), the Office of Parks has had decades of experience managing and operating the oldest and third largest state park system in the country, and has thereby acquired extensive expertise in formulating reasonable rules to manage the conflicting interests of its patrons. That expertise was brought to bear in determining how best to locate the no-smoking areas, as “evidenced by the rule’s treatment of parks in New York City, which differ in size and setting from the Parks elsewhere in the State” (R. 10). Deference should be afforded to the Office of Parks’ conclusion that establishing smoke-free areas is necessary to effectively operate and maintain the state park system and preserve its precious natural resources. In sum, application of all four Boreali factors compels the conclusion that the Office of Parks did violate the separation-of-powers doctrine in promulgating a rule regulating the smoking activity of patrons in the state park system. The Office’s rule is faithful to the guiding principles the Legislature established in article 3 of the Parks Law. Accordingly, this Court should declare that the Office of Parks 40 acted within its statutory authority in promulgating 9 N.Y.C.R.R. § 386.1. CONCLUSION The Appellate Division’s order should be affirmed. Dated: Albany, New York August 17, 2015 BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General VICTOR PALADINO Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents By: __________/s__________________ VICTOR PALADINO Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 Telephone (518) 776-2012 Reproduced on Recycled Paper 41