Bath & Hammondsport Railroad v. New York State Department of Environmental Conservation

I would affirm the unanimous Appellate Division orders granting the petitions to annul the determination of the Department of Environmental Conservation.

I cannot agree that the question is as posed by the majority —"whether the absence. of explicit reference to eminent domain power in ECL 11-2103 precludes the exercise of that power, granted generally to the Commissioner in ECL 3-0305, to condemn land for a public fishing purpose.” (Majority opn, at 436-437.) Nor can I agree that the answer, even to this question, is plain, unambiguous, unmistakable or without doubt, as the majority…