Lake George Association wins lawsuit
By Gwendolyn Craig
The Adirondack Park Agency should have held a public hearing before an administrative law judge before issuing a permit for herbicide use in Lake George, a state Supreme Court justice ruled Friday.
It was the second of two court decisions this week rebuking how the agency, charged with long-range planning and overseeing public and private development in the 6-million-acre park, conducts business. An appellate court ruling Thursday declared the agency wrongly applied its wetlands regulations.
APA commissioners, in a rare split vote of 6-4, granted the Lake George Park Commission a permit to test an herbicide in two eastern bays to treat invasive Eurasian watermilfoil last year. The Lake George Association filed a lawsuit against the APA, the park commission and the state Department of Environmental Conservation after the permits were granted.
The association had raised a number of environmental and public health concerns about the herbicide treatment, a synthetic plant hormone called ProcellaCOR EC already used in lakes across New York and the Northeast. Lake George Waterkeeper Chris Navitsky, the town of Hague and Helena G. Rice, a lakeside property owner, also joined the suit.
The LGA and other environmental organizations were stunned by the agency’s refusal to hold a public hearing, too. The Adirondack Council, a nonprofit advocacy group, wrote a so-called friend of the court brief contending that a public hearing should have been held.
In a decision issued Friday, Warren County Justice Robert Muller called APA’s issuance of the permits without holding a hearing “arbitrary and capricious,” and scolded staff for a “one-sided” presentation to commissioners about the herbicide.
“Indeed, of the 110-page Power Point presentation, only 9 pages were devoted to the 325 public comments in opposition—with these comments minimized during the presentation itself,” Muller wrote.
Keith McKeever, spokesman for the APA, said the agency “is reviewing the decision and does not have any further comment at this time.”
Muller detailed a tangled web of concerns with the APA’s review – public comments lost in the APA’s spam folder, presentations by APA staff that did not account for all the comments submitted and questionable advice from APA counsel on the timeline for holding an adjudicatory hearing. Muller highlighted some APA commissioners’ confusion and concerns at an April 2022 board meeting showing “some members clearly felt the need for more time to fully review the record.”
Environmental organizations have long been concerned that the APA has not held a hearing before an administrative law judge – the only way the agency can deny a permit – in over a decade.
John Sheehan, communications director of the Adirondack Council, said for about 30 years, the APA would often hold adjudicatory hearings.
“It stopped during the previous (gubernatorial) administration, and we’re hoping the court is prompting the (Gov. Kathy) Hochul administration to renew that practice,” Sheehan said. “I think the courts are making it clear to, I think both the park agency and the Department of Environmental Conservation, that they want them to be careful with the resources of the Adirondacks.”
Dave Wick, executive director of the Lake George Park Commission, on Friday said the decision was disappointing but vowed to press forward with garnering approval to test ProcellaCOR on the lake. Wick emphasized that the decision was about government process and not “the safety or efficacy of the (herbicide) project.”
Wick said the park commission was not prepared for the negative response to the project and the organized campaign from the LGA to quash the plan.
“What we didn’t expect was for another entity with the interests of Lake George in mind to put forth information to the public that wasn’t, from our perspective, completely or factually accurate,” Wick said.
The agency has already started the process of filing new permit applications to conduct the ProcellaCOR pilot this summer, Wick confirmed for the Explorer in February. Wick expressed confidence that the park commission would have the strongest case in a public hearing format, citing the scores of other lakes that have used the herbicide.
“We are in no way afraid of having the information come forward in a hearing,” he said.
The LGA was pleased with the Muller ruling, and in a statement said it believed “that any subsequent APA review of applications to apply ProcellaCOR in the lake must be preceded by such a hearing.”
“Should the Lake George Park Commission decide to proceed with its ProcellaCOR permit application this season, we look forward to once again participating in the regulatory process and to presenting expert scientific testimony at the adjudicatory hearing to clearly convey and document our many concerns,” the LGA said.
Some lake associations and communities around the park have watched the case unfold with interest and hope that the herbicide treatment could be a viable route to controlling their own milfoil invasions. The judge noted that many of the letters in support of the project came from lake associations interested in gleaning more data from Lake George’s use of the herbicide.
Zachary Matson contributed to this report.
Another glimpse for the public of one of the key things that has gone so wrong at APA, internally, in the last dozen years or so. It’s now standard practice (although only recently in State land matters) for management, with top legal staff, to withhold important information from – and very selectively feed information to – unknowing Board members for their decision making with the aim to ensure a particular decision is made. And EVERYTHING all staff try to decide and produce goes “through legal,” with attorneys picking apart permits, altering permit conditions… changing the good work of rank-and-file staff. The primary reasons for such alterations now lie in: 1) politics; and, 2) assessments of litigation potential. These have replaced: 1) The Agency’s mission; and, 2) consistency (which – for the staff who care – equals fairness). The old days now seem almost quaint.