Evidentiary hearing not required, judges hold; LGA promises appeal
By Zachary Matson
An appellate court on Thursday upheld the Adirondack Park Agency’s decision to forego a special evidentiary hearing before approving permits for the Lake George Park Commission to use an herbicide against invasive Eurasian watermilfoil.
The Lake George Association, which has vociferously opposed and challenged in court the park commission’s plan to use the herbicide in its long running efforts to suppress the invasive plant, promised to appeal the court’s decision to the Court of Appeals, the state’s highest court.
The unanimous decision by the Supreme Court Appellate Division, Third Judicial Department in Albany overturned a ruling from a Warren County judge that had annulled permits APA granted the park commission in 2022 and vindicated the agency’s approval process. That earlier decision declared that APA offered a “one-sided” presentation on the planned use of the herbicide ProcellaCOR in Lake George.
The appellate court, though, ruled that APA staff presented all the relevant information to the board, which then made a rational decision to approve the permits. The ruling cites legal precedent that government agencies are granted deference to operate within their areas of expertise.
“[The Warren County] Supreme Court erred by substituting its judgment for that of the APA relating to whether to hold an adjudicatory hearing,” the appellate judges found. “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.”
APA Executive Director Barbara Rice in a statement Friday applauded the decision and said it “reflected the thoughtful and thorough work completed by the APA staff and the board’s fair and science-based decision.”
The association on Friday questioned the court’s ruling and state’s approval process and continued to press what it said were unanswered questions about how the herbicide’s use would impact Lake George.
“I think the Appellate Division took the arguments from the state hook, line and sinker,” said Tom West, an attorney representing the lake association. “It’s an incredible reliance on agency deference without recognizing the many improprieties that occurred at the agency staff level.”
West said he planned to file a request with the Court of Appeals seeking permission to appeal the decision as something of statewide importance.
Park commission leaders have said the herbicide can be a new strategy to replace costly hand harvesting and other approaches that failed to keep up with the invasive plant, citing its successful use in other lakes and safety approvals from numerous state and federal agencies. The park commission this spring filed permit applications with APA and the state Department of Environmental Conservation to apply the herbicide before the end of June.
Those applications were paused as the court decided the case. APA spokesperson Keith McKeever on Friday said APA expected the park commission to request those applications be reopened for agency review.
“The park commission is confident that there is enough time to advance the projects and undertake herbicide application this year,” said Dave Wick, executive director of the park commission.
DEC is separately considering a park commission permit application for the use of a pesticide. West argued that the agencies do not have enough time to conduct a proper review of the applications in time to grant approval for herbicide use this year. He said the association could initiate a new lawsuit challenging approvals granted under the new permit application. The lake association is pointing to new data collected from the proposed herbicide site it argues demonstrate that the area’s water flows are more complex than what was accounted for in dilution modeling using a state standard.
“If they cut corners and rush these decisions out, we will sue and a seek an injunction at that point if necessary [to prevent herbicide use],” he said. “I don’t think they can get the through this process between now and the end of June, so I think it will be a moot issue.”
Environmental advocacy groups have pressed APA to hold the adjudicatory hearings on a handful of recent projects, arguing they are needed to gather more information about a project and alleging an “anti-hearing” bias among staff.
APA lawyers have said the scarcity of hearings, none of which have been held in over a decade, is the result of the agency’s improved processing of applications, ensuring potentially significant issues are resolved prior to sending an application to the board. West said APA staff should at a minimum outline the criteria for the hearings before approving projects and explain why they don’t apply.
During a recent APA planning forum, agency attorney Sarah Reynolds said “hearings trauma” had pushed APA staff and applicants to work to avoid the necessity of hearings in the application stage. The adjudicatory hearings are “essentially trials,” Reynolds said, and consume enormous amounts of time and energy for all involved.
Overseen by an administrative law judge, the adjudicatory hearings could last months or even years. The hearings are required when “substantive and significant issues” are missing from the record presented to the board or if the board wants to deny an application.
Reynolds detailed the agency’s view of the hearings as a corrective to what she described as a “lot of talk about hearings … a lot of misinformation” on the topic.
When applicants are reluctant to provide requested information or alter a planned project, the specter of a hearing can foster more cooperation with staff requests, Reynolds said.
“We have gotten pretty good about going through this with an applicant and explaining what’s going to happen if staff presents to the board a record that does not look approvable or does not look complete,” Reynolds said. “Applicants have listened, because no one wants to go through this. The enormity of what this adjudicatory-style hearing is, I think has helped prevent hearings from happening.”
Editor’s note: This story has been updated to include comments from the Adirondack Park Agency, Lake George Association and Lake George Park Commission.
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