Rulings against APA permitting processes reverberate
By Gwendolyn Craig and Zachary Matson
The Adirondack Park Agency’s loss of two court cases in two days earlier this month raised questions about the agency’s internal operations and how it will conduct business in the future.
On March 2, the state Supreme Court Appellate Division, Third Judicial Department, said the agency incorrectly applied its wetlands regulations when granting a marina permit on Lower Saranac Lake. On March 3, the state Supreme Court in Warren County ruled the APA should have held a public hearing before issuing a permit to allow herbicide applications in Lake George.
Former APA Commissioner Chad Dawson said the decisions “send a powerful message” that either the APA’s administration needs to change or the Adirondack Park Agency Act needs revising. He wondered if the APA, which turned 50 last year, was having a midlife crisis. Dawson resigned from the board at the end of 2020 frustrated over what he believed was a lack of data and discussion before the agency issued permits.
Keith McKeever, APA spokesperson, said the agency was still reviewing the court rulings. It’s not clear if the APA will address the matter at its meeting on Thursday. The APA’s agenda includes time for an executive session, but with no identified reason.
The agency, McKeever said, intends to determine the rulings’ “full impact and what we will need to do.” He said APA planned to provide more details about its next steps in the coming weeks.
What happened to adjudicatory hearings?
It has been about 12 years since the APA held a public hearing before an administrative law judge. A public hearing is the only way the APA, charged with the long-range planning and overseeing of private and public development in the park, can deny a permit.
Warren County Judge Robert Muller called APA’s issuance of an herbicide permit to the Lake George Park Commission, without holding an adjudicatory hearing, “arbitrary and capricious.” He also criticized staff for a “one-sided” presentation to commissioners.
Bob Glennon, former executive director of the APA, called the agency’s review outlined in the Muller decision a “cavalcade of ridiculousness.” Glennon was the agency’s top staffer from 1988 to 1995 and is now on the board of Protect the Adirondacks. He said it was “inexplicable” as to why the agency hasn’t held a hearing since 2011 over the Adirondack Club and Resort proposal in Tupper Lake.
Dawson, who served for 4 ½ years as an out-of-park member, said board members are shortchanged as a result of the lack of full hearings. APA staff present their interpretations as directed by the executive director to the board, which is all cleared through the governor’s office. During Dawson’s time on the board, that was under former Gov. Andrew Cuomo.
“That’s one of the reasons why people keep pushing for these adjudicatory hearings, is to make sure all the information, good and bad, whether it’s solid or questionable, is presented,” Dawson said.
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The APA has suggested it doesn’t need to hold such hearings because staff are vetting projects so thoroughly, one isn’t needed.
The agency has succeeded in other court proceedings when defending its decisions not to hold hearings.
In September, an Oneida County Supreme Court justice ruled in favor of the APA when Protect the Adirondacks and the Adirondack White Lake Association sued over a quarry permit. Judge Bernadette Clark did not agree with petitioners that the permit issuance required an adjudicatory hearing. Just because the APA hadn’t held a hearing in years, Clark wrote, didn’t mean the agency should have held one in this case.
Claudia Braymer, deputy director of Protect the Adirondacks, said they are appealing that outcome. They believe Muller’s decision could help.
For the Lake George Park Commission, Braymer believes its next try for an herbicide permit will require APA to hold an adjudicatory hearing. Park Commission Executive Director David Wick had said he would welcome one.
“I don’t think the Park Commission is trying to evade the public hearing,” Braymer said. “It will still be up to APA whether to hold one.”
State Assemblyman Matthew Simpson said a number of his constituents contacted him concerned about the Park Commission’s herbicide permit. The Republican from Horicon said he was concerned about the two court decisions, but he did not think they warranted any kind of review or audit of the APA. Simpson said he had confidence in APA Executive Director Barbara Rice’s leadership.
What’s next for wetlands regulations?
The Appellate Division ruling rebuked the Adirondack Park Agency for interpreting a key element of its regulations guiding the protection of high-value wetlands.
The case could be harder to appeal than the Warren County court’s herbicide decision, because the agency would have to ask for special permission from the Court of Appeals to appeal the unanimous decision.
The court ruled the agency’s value “2” rating for the wetlands at the marina’s annex site in Ampersand Bay was based on a plainly wrong reading of its wetlands regulations — a reading the state’s lawyers argued in court had guided the agency for 40 years.
The agency’s ultimate determination in 2016 that the site’s wetlands were rated “2” came after dueling expert assessments and an earlier staff declaration that the site should be rated a “1” wetland, the highest and most restrictive rating.
APA staff biologist Mark Rooks at the time outlined a series of mistakes he said tarnished the agency’s analysis of the wetlands at the marina’s annex site, concluding: “I doubt that I will be able to testify in public hearing about the (wetland) value rating.”
Biologists determine a wetland rating based on its combined characteristics, a list of two dozen potential wetland attributes grouped into six “factor” categories. If the wetland contains “multiple values based upon more than one factor” in the list of characteristics, a separate regulatory provision comes into play. If three or more of the wetland characteristics are rated 2, or “high value,” the associated wetland will be rated 1, the highest value, under the regulations.
The state’s lawyers in court suggested APA relied on a 1984 internal memo related to how the rating system applied on logging roads. That has guided the agency’s application of the multi-factor rule for the past four decades. The memo said that when determining a wetland rating based on the multi-factor rule, “the highest value rating of the wetland in each value class shall be used.” The agency would only consider a wetland to contain three high-value characteristics, thereby elevating the wetland’s overall rating, if they came from three separate categories – not three characteristics within two categories.
The court decision said that reading was at odds with the regulations: “Pursuant to such an analysis, however, two factors would not qualify as ‘more than one’ and, as such, this interpretation conflicts with a plain reading of the regulations.”
Braymer, who represented former DEC Commissioner Thomas Jorling, a marina neighbor, in the case, said it was concerning if APA has been interpreting its wetlands regulations incorrectly all of these years. She also questioned if that was true. The 1984 memo, she said, was focused on forestry activities.
“Why would they apply that interpretive memo to a marina permit application in emergent wetlands on a lake?” Braymer said. “The whole thing was just very incredible.”
The appellate decision also pointed out that the earlier staff declaration rating the wetlands “1” appeared to follow the regulations according to a plain reading of the rules.
Proposed activity in a “1” wetland must “be compatible with preservation of the entire wetland” and “not result in degradation or loss of any part of the wetland or its associated values.” By contrast, activity in a “2” wetland must result in “minimal degradation” and be the “only alternative to accomplish the applicant’s objective,” according to APA regulations.
The Rooks memo, which asserted the agency seemed to be “trying to get around our regulations,” showed at least some internal dissension over how to judge the marina’s wetlands. He indicated scientific staff were overridden by the agency’s lawyers and director.
“We had a meeting on March 31, 2016, where RASS (resource analysis and scientific services) staff maintained that it was a value 1 wetland, but the (executive director) and legal staff determined that we would consider this a value 2,” Rooks wrote.
Raymond Curran, a former APA biologist and supervisor who along with a colleague penned the 1984 memo, examined the marina’s wetlands as an outside consultant for neighbors questioning the project and rated the large wetlands complex in Ampersand Bay as “1.” Curran in an interview said during his time at APA he doesn’t remember an instance where a rating developed by scientific staff was rejected or overridden by agency leaders. He said he applies the multi-value analysis indicated by the regulations when he reviews wetlands in the field.
“It’s a technical science decision,” Curran said of rating wetlands.
Curran said he thinks the agency should conduct a new rulemaking process to clarify the wetlands regulations in a transparent way. “The advantage of that is you write something down and expose it to the public and there is comment and a better result,” Curran said.
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