Periconi, LLC

The DEC Typically Isn't Bound by its Own Mistaken Advice

The scales of justice are a ubiquitous symbol of equality and fairness under the law that date back to ancient times. One of the most common tools lawyers use to pursue the ideal of fairness and equality is the doctrine of equitable estoppel. Equitable estoppel works to preserve fairness by preventing bad actors from benefitting from their malfeasance. For example, if you knowingly misrepresent certain facts to the opposing attorney in a negotiation, and that attorney relies on that misrepresentation to enter into a harmful deal, she could later void the deal using the doctrine of equitable estoppel. 

The doctrine of equitable estoppel is almost always invoked in commercial litigation between private parties, but it is generally not available against governmental entities like the New York State Department of Environmental Conservation. From time to time, parties try to prevail by invoking equitable estoppel in litigation against the DEC, and they usually fail. The latest case is no different, and arises in the context of a legal challenge to DEC's decision to issue a Freshwater Wetlands Permit.

In the Matter of Atlantic States Legal Found., Inc. v. New York State Dept. of Envtl. Conservation, the ASLF alleged that the DEC's regional director told the ASLF that it had four months to file a legal challenge. When ASLF eventually brought suit against the DEC in the New York State Supreme Court, its petition was dismissed. ASLF discovered that the statute of limitations was actually only thirty days-and that time had passed.

ASLF appealed the dismissal of its petition in the Appellate Division, Third Department, claiming that DEC should be equitably estopped from using the statute of limitations as a defense because the regional director-a senior official in the DEC hierarchy-had allegedly said ASLF had four months to file suit. Unfortunately for ASLF, the Appellate Division correctly noted that "it is axiomatic that the doctrine of equitable estoppel cannot generally be invoked against governmental agencies in their governmental function."

What makes governmental agencies so special? Well, governmental agencies are vested with authority by the legislature to regulate complex, sensitive activities, such as wetlands development. Imposing equitable estoppel every time a government employee made a mistake or had a comment misconstrued would be a tremendous frustration to the democratic process. Allowing equitable estoppel against government agencies could even open the door to fraud.

As the U.S. Supreme Court noted in Lee v. Monroe, "[i]t is better that an individual should now and then suffer by [governmental] mistakes, than to introduce a rule against an abuse, of which, by improper collusions, it would be very difficult for the public to protect itself." 11 U.S. 366, 370 (1813). While there are grounds to challenge governmental decisions, mistaken or otherwise, equitable estoppel is generally not one of them.

For more information about Matter of Atlantic States Legal Found., Inc. v. New York State Dept. of Envtl. Conservation, 119 A.D.3d 1172 (3d Dep't 2014) contact one of the environmental attorneys at Periconi, LLC.

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