SANTA CLARA — A defamation lawsuit brought by the owner of the Upper Saranac Lake Marina against the environmental nonprofit Adirondack Wild and environmental nonprofit news outlet Adirondack Explorer has been dismissed by a judge, who characterized the case as a SLAPP case, shorthand for a “strategic lawsuit against public participation.”

The lawsuit centered on a full-page ad Adirondack Wild ran on the inside cover of the November-December edition of the Explorer’s bi-monthly magazine, which called for public comment opposing the USL Marina’s planned expansion. The green group has paid for these inside cover ads since 2012. The lawsuit brought by marina owner Mike Damp alleged that the statements in the ad were “largely false, fraudulent, misleading and defamatory.”

“This action … appears to be exactly the type of litigation which New York’s anti-SLAPP law was designed to address,” Franklin County Judge John Ellis wrote in his Aug. 22 decision on the case.

Lake Placid Attorney Matt Norfolk, who represents the marina, disagrees. He saidhe would not have filed the case if he thought it was a SLAPP case. He plans to file a notice of appeal, which reserves the right to appeal the decision for six months. An appeal would send the case to the state appellate court division and a different judge.

Representatives of the Explorer and Adirondack Wild expressed relief at Ellis’ ruling.

“We’re just pleased to see that the court has upheld the public’s right to get the facts and opinions about topics that impact their lives,” Explorer Publisher Tracy Ormsbee said.

“We are relieved that (the court) dismissed a lawsuit intended to silence our commentary about a large private development in the Adirondack Park under review by public agencies,” Adirondack Wild Managing Partner David Gibson said in a statement. “This decision provides encouragement to citizens and nonprofit advocates across the state that they can continue to rely upon anti-SLAPP laws carefully designed to protect their free speech about matters of public interest.”

The Explorer was represented by Charles Updike of the Schoeman, Updike and Kaugman law firm. Adirondack Wild was represented by Whiteman Osterman and Hanna, LLP and by the Pace Environmental Litigation Clinic.

Damp owns the Upper Saranac Lake Marina on Lower Fish Creek Pond and also co-owns the Saranac Lake Marina on Lower Saranac Lake. He purchased the USL Marina in 2020 with plans to renovate and expand it. It was formerly known as Hickok’s Marina.

The marina got approval from the APA for its expansion in May.

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The ruling

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In the lawsuit, the marina owners sought punitive damages from the green group and magazine of at least $1 million, as well as damage compensation for alleged financial losses of at least $25,000 and at least $25,000 for attorney, engineer and biologist fees to address the alleged adverse impacts of the ad’s language. The lawsuit also demanded a retraction of the statements, an apology from both groups and an explanation to those who saw the ad.

Ellis dismissed these claims and awarded Adirondack Wild and the Explorer costs and attorney fees for the lawsuit. The amount of money this will amount to is still to be determined — the court will hold a hearing to figure this out.

Ellis denied counter-claims from the two organizations for punitive damages for a “frivolous lawsuit.” He said though the lawsuit’s complaint did not have “substantial basis in law,” it was not “completely without merit in law,” which is the standard for a frivolous lawsuit.

“Simply because an action lacks merit does not necessarily render it frivolous,” Ellis wrote.

Ellis also said damages were only warranted if the sole purpose of the lawsuit was to harass, intimidate and inhibit free speech. He said the suit was filed to protect business interests. Still, he said, allowing it to continue would be an “impermissible trampling” of First Amendment rights.

Dismissal of the lawsuit is the solution for this dispute, Ellis said, not further litigation.

Citing another case, Ellis said “absent a special relationship between a newspaper and and advertiser, a newspaper is not liable for misstatements in advertisements.”

Ellis wrote that he believes this was definitely a SLAPP suit, adding that arguments against that were of either of little to no value, dubious, made in error or “smacks against common sense.”

In 2020, the state expanded its anti-SLAPP law with broader definitions to protect citizens speaking out on public issues. It puts the burden of proof on the plaintiff to show that their complaint has a basis in law to avoid dismissal.

The marina needed to prove that these statements were so untrue they weren’t protected speech, and Ellis said they failed to plead “actual malice.”

Truth is an “absolute defense” in libel cases and opinions, as unreasonable as they can be, cannot be actionable for lawsuits. In these cases, truth needs to be substantially true with acceptable minor inaccuracies.

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Appeal

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Norfolk said his appeal will likely focus on Ellis’ ruling that Adirondack Wild using outdated information for its ad was substantially true.

The ad claimed the marina plans to replace existing 8,600 square feet of docks with 34,000 square feet of commercial marina with for 93 motorized boat slips.

“That’s a four-fold increase,” the ad states.

Norfolk also plans to contest that the “four-fold increase” quote is a misleading statement. This comes down to differences in how the marina and Adirondack Wild calculate square footage — the marina prefers to use dock square footage Adirondack Wild’s ad used both dock square footage and total marina square footage.

Norfolk says conflating the two is dishonest. Comparing the existing dock square footage with the planned square footage of the total marina — including the slips between docks — he says implies a larger increase in dock space than was actually planned.

The plans presented for consideration by the Adirondack Park Agency had also changed before the ad ran. The old application to the APA had the figures cited in the ad. A newer application, had 13,297 square feet of total covered dock area — 10,901 square feet of actual docks and around 2,400 square feet of covered slips over water.

Ellis said he’s not convinced the two sets of documents are so radically different as to render the statements defamatory.

Norfolk feels since the first application was withdrawn, and there was a new application at the time the ad published, it renders the statements false.

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Pond vs. lake

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Ellis also finally settled the dispute over where the marina is actually located.

The Wild’s ad described it as “on a small pond” — Lower Fish Creek Pond. Norfolk contended that the marina is on Upper Saranac Lake, saying the marina is in a “bay” called Lower Fish Creek Pond connected to the larger lake. The two bodies of water are connected by a channel.

Ellis declared the marina is on a pond.

“Oddly enough, although the parties can agree on many things, the seemingly simple issue of where the marina is located is a matter of contention,” he wrote. “The location of the marina cannot be disputed and is misstated by (the) plaintiff.”