New motion from Protect and Sierra Club

Protect and Sierra Club are filing a new motion their challenge of the ACR approval from the APA.

They mean business.

I'll run a story tomorrow, but I'm going to copy and paste the press release below:

PROTECT and Sierra Club file new motion in APA-ACR lawsuit for discovery on ex parte contacts issue

APA has denied Freedom of Information requests from PROTECT and Sierra Club and withheld numerous documents about communications on ACR permit; motion seeks access to withheld documents and permission to depose witnesses.

APA has disclosed that the Governor’s Office was heavily involved in the review and approval of the ACR project; PROTECT and Sierra Club believe this violates ex parte contact rules and seeks permission to review all relevant documents.

LAKE GEORGE - Protect the Adirondacks and the Sierra Club have filed a motion with a state appellate court for leave to conduct discovery around their allegations about improper ex parte communications during the review and approval by the Adirondack Park Agency of the 6,000-acre Adirondack Club & Resort (ACR) project in Tupper Lake. Based on information provided to PROTECT and Sierra Club through a Freedom of Information request and in a recent denial by the APA of a request for further information, PROTECT and Sierra Club believe that there were extensive ex parte communications on the ACR permit between senior staff and commissioners of the Adirondack Park Agency, the applicant, and members of Governor Cuomo’s staff; see attached.

“PROTECT and the Sierra Club have submitted a motion to the court for leave to conduct discovery to gather additional information around the very important issue of ex parte communications during the APA’s review and decision-making on the ACR application. The petitioners seek the opportunity to review communications that the APA claims are shielded by attorney-client privilege as well as the opportunity to depose witnesses who were involved in these communications” said John Caffry, attorney for PROTECT and the Sierra Club.

In July, PROTECT published on its website numerous emails and memoranda that it believes showed extensive ex parte communications by APA’s staff during the public hearing and final deliberations on approval for the ACR project. The ACR project was subject to a formal APA adjudicatory hearing, administered by a DEC Administrative Law Judge, which is subject to rules that limit the ex parte communications of APA hearing staff, APA senior staff, and the APA Commissioners with the applicant, all parties, and the general public. Ex parte contact rules are designed to protect the integrity of the public hearing process, the purpose of which is to develop an official hearing record that should be the sole basis for a decision by the APA Commissioners. Ex parte contact rules bar any outside the record information, advocacy, or political influence on the APA senior staff or Commissioners, so that the APA’s final decision is based purely on the facts established in the hearing record. Ex parte contact rules are supposed to inoculate the APA from improper influence by enforcing a system where all hearing parties share information and communications during the entire hearing process. The APA did not do this. Extensive communications appear to have occurred between the applicant and senior staff and possibly Commissioners at the APA. The new discovery motion by PROTECT is intended in part to determine the extent of the improper communications between the applicant and the APA.

The motion for discovery by PROTECT and Sierra Club is also intended in part to determine the level of political interference in the approval of the ACR project. The APA Act was designed to bar political interference in its decisions. The APA is supposed to be governed independently by 11 Commissioners, eight of which serve 4-year (staggered) terms upon gubernatorial appointment and three that represent state agencies. No more than five commissioners of one political party may be on the APA at one time. The appointment process with staggered terms is supposed to provide continuity and independence. There was a deliberate legislative decision in 1971 to make the APA an independent agency with important responsibility for land use planning and regulation over the public and private lands within the Adirondack Park, managed by an independent citizen board of regulators. It is not an agency, like the Department of Environmental Conservation, that is headed by a single commissioner who serves at the pleasure of the Governor and makes unilateral administrative decisions.

The APA claims attorney-client privilege attaches to communications between APA staff and the Governor’s staff attorneys. PROTECT and Sierra Club reject this assertion. They believe that outside of APA legal staff the only other attorney-client privilege is between the Attorney General and the APA during times of litigation, as the AG is statutorily required and authorized to represent the APA in court.

Based on information provided by the APA it is clear that the Governor’s staff engaged in as many as 18 substantial lines of communications involving the ACR decision during the public hearing and final decision. This information is provided in the APA’s July 24, 2012 denial of an appeal under the Freedom of Information Act by PROTECT (see attached). The ex parte contact prohibitions in the State Administrative Procedure Act (SAPA) govern all "adjudicatory proceedings" and clearly prohibit communications "directly or indirectly" between APA Commissioners and "any person or party" relating to any issue of fact and between Commissioners and "any party or his representative" relating to any issue of law, without notice to other parties and an opportunity for all parties to participate. APA regulations are similar.

“PROTECT believes that direct involvement in the decision-making process with the APA senior staff and Commissioners by the Governor or his staff, and perhaps other governmental officials, in a project subject to an official adjudicatory public hearing is a violation of the ex parte contact rules. PROTECT believes that elected officials are certainly encompassed within the ‘any person’ definition in SAPA not only as regards the APA but any other state agency that holds adjudicatory hearings. The issue of Governor's Office involvement, or that of any other elected official, in an official adjudicatory hearing outside of formal participation as a party is of broad significance” said Peter Bauer, Executive Director of PROTECT.

“The new motion for discovery around the ex parte contact issue will provide us with an opportunity to establish the full extent of outside involvement and influence in the APA’s final discussions and decision on the ACR project. Ex parte contact rules are clear about what process should be followed. Information gleaned from this motion will allow the public to fully understand who the APA was consulting as it prepared to make a final decision on the biggest development ever approved by the APA” said Roger Downs, Conservation Director of the Sierra Club Atlantic Chapter.

A copy of the motion and supporting materials has been posted to the Protect the Adirondacks website (www.protectadks.org). The motion will be returnable in the Supreme Court, Appellate Division, Third Judicial Department, in Albany on October 9, 2012. There is no oral argument scheduled.

In March 2012 PROTECT and the Sierra Club commenced a lawsuit against the APA on 29 different counts for its issuance of a permit for the ACR project. PROTECT and the Sierra Club believes that this lawsuit will decide important issues regarding the Adirondack Park Agency Act and APA regulations. The Court must address the APA’s new argument that language in the Act, which has long been cited as protecting Resource Management lands, is now somehow only “advisory” or “guidelines”. The Court will also have to consider the new evidence of illegal communications between ACR and the Agency Counsel, who advised the Members in their deliberations and decision, assisted by the Associate Attorney on the hearing staff. In PROTECT and Sierra Club’s view, this evidence appears to demonstrate an unprecedented effort by some staff to collaborate with a developer and to assist the ACR project to obtain a final approval.

They included some documents that I'm going to look over now.

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