Wednesday, August 20, 2014

Bauer: APA Must Lead State Land Master Plan Revision

Adirondack State Land Master PlanThe Common Ground Alliance (CGA) recently met in Long Lake. One of the break-out sessions focused on reform of the Adirondack Park State Land Master Plan (SLMP), which is the policy document for management of the Forest Preserve. The Common Ground Alliance effort is one of a handful of organizing efforts around the Adirondacks where ideas are being collected to detail potential changes to the SLMP.

In its December 2013 resolution classifying the Essex Chain Lakes/Pine Lake Primitive areas and Hudson Gorge Wilderness area, the Adirondack Park Agency (APA) committed to examine several items for possible SLMP revision. Since then, there has been no action by the APA or release of a public memo detailing a schedule for the APA to follow up the December 2013 resolution. In this void, various APA Commissioners have made comments at APA meetings, as has the representative from the Local Government Review Board, that express the desire that the APA undertake a revision of the SLMP well beyond the scope of the December 2013 resolution.

The SLMP has worked effectively for 40 years. As a frequent user of the SLMP, I’m continually impressed by the durability and prescience of this regulatory document. Though it was written long before wildlands management developed as a professional field, it has served the Adirondack Forest Preserve exceedingly well.

I recently completed a review of the public hearing records, APA meeting minutes, draft SLMP revisions, and State Environmental Quality Review Act (SEQR) documents for the adoption of the original SLMP in 1973-74, revision in 1978-79, and revision in 1986-87. From my review of the record, land classification concerns by the public and conservation groups dominated these proceedings, rather than SLMP policy issues. The APA amends the SLMP in two ways. First, each classification of new Forest Preserve lands, or reclassification of existing lands, is a technical amendment of the SLMP as various Forest Preserve units are expanded or new ones are created. The second way is through changes to the text of the SLMP that is the guiding policy for Forest Preserve management.

The APA Act states that the SLMP will be amended from time to time and the SLMP guidelines call for revision every five years to keep it current. While the APA has moved expeditiously on classification of new Forest Preserve lands at regular intervals over the years, there has been no SLMP policy revision since 1987, and the intervening 25 years of inaction have created a pent-up demand for revision of numerous SLMP policy issues.

When the APA does undertake a comprehensive reform of the SLMP, policy changes will dominate this effort.

The APA Act states that the APA is the lead agency for Park planning. There is no issue more important to the Adirondack Park than the management of the Forest Preserve. It is vital that the APA assert its authority and manages the SLMP revision process.

The APA needs to develop and publicize a schedule for SLMP reform. As mentioned above, the APA identified various SLMP revision efforts for a small suite of policy items in its December 2013 Forest Preserve classification resolution, but has not prepared a public time frame for when it will start this process. Nor has the APA stated how it will manage this effort.

The various reserved rights for leaseholders in the Essex Chain Lakes tract continue until the end of 2018, which allows leaseholders to continue to operate motor vehicles within the area and many roads to remain open. This provides plenty of time for the APA to undertake comprehensive SLMP reform in a methodical, open and transparent process in the meantime.

The APA does not operate in a vacuum, and we all know that Governor Cuomo exerts considerable authority over APA actions – just as he does over all state agencies. Independence is a commodity in short supply at the APA. In the wake of the APA’s December 2013 Forest Preserve classification action, Governor Cuomo came to Saranac Lake, where he talked about the success of that effort by stating that a group of people got together to negotiate an agreement for classification of these Forest Preserve lands and then this agreement was sent to the APA for approval.

The classification process for the Essex Chain Lakes and other lands was neither open nor transparent. Decisions were made in secret and critical materials were withheld from public scrutiny.

The APA should go to great lengths to avoid a secretive process around SLMP reform.

I was recently interviewed by a grad student from SUNY-ESF about public participation in decisions made by state agencies over public land issues in the Adirondacks. This research is part of a state contract to improve public participation. I told the interviewer that state agencies know how to manage public process, but sometimes state agencies make a deliberate decision for a closed process.

A closed process was evident in the recent decision by the APA to approve the Jay Mountain Wilderness Unit Management Plan revision. The APA received 4,000 comments opposed to its action with nary a comment in support. The APA disregarded the comments and went ahead without any modification whatsoever to its action. In this issue, public participation was simply a box to be checked: comments were collected, acknowledged, and disregarded with no meaningful impact on the APA’s action. The Department of Environmental Conservation (DEC) had much the same reaction to comments it collected on its Temporary Revocable Permit for the Jay Mountain Wilderness.

Revision of the SLMP needs to be a much more open and transparent process.

My other comment to the interviewer was that both the APA and the DEC have administered successful public participation processes in the past. I said that both agencies could effectively manage public participation when they chose to do so.

The DEC successfully managed the High Peaks Citizens Advisory Committee in the 1990s and the regional Open Space Plan Advisory Committees starting in 1991. For its part, the APA has also effectively managed controversial and complicated policy matters with long-term impacts for the Adirondack Park.

The APA Rules and Regulations reform effort that stretched from the mid-1990s until 2008 or so serves as a model for how the APA should undertake SLMP revision. The process used for APA rules reform followed several crucial steps that are worth replicating in a SLMP revision effort:

1. APA Commissioners, senior staff, and appropriate program staff managed the rules and regulation revision effort. An extensive public input forum was managed in compliance with the State Environmental Quality Review Act (SEQR) and the State Administrative Procedures Act (SAPA).

2. Public input was widely solicited to scope out concerns and ideas for where APA rules and regulations were outdated or ineffective. A record was made of this public input. APA staff and Commissioners used these concerns and to help identify reform issues.

3. The APA formed the Technical Advisory List (TAL) to help solicit public input from a wide variety of stakeholders. This group, referred to as a list, included local government, the business community, the environmental community, other watchdog groups, and other state agencies, among others. The important thing about the TAL is that it was open to any entity that wished to participate.

4. The APA legal team and appropriate policy staff worked to frame issues of public concern and identify problems in the APA’s rules and regulations. The APA distributed statements to the TAL and general public concerning problem areas as well as the applicable current rules and regulations. Public comment was solicited from the TAL as well as the public at large.

5. TAL participants submitted comments to the APA about the identified issues. These were compiled and organized. The APA used these comments to draft revised rules and regulations for an identified issue. These often involved more than one option. These materials were then provided to the TAL and the public at large.

6. The APA then convened a meeting of the TAL to discuss the set of revised regulations. These meetings focused on a specific area of concern. These meetings were lengthy and the APA provided ample opportunity for questions and comments from all participants. These meetings were instrumental in shaping the final revisions.

7. The APA next brought these draft final revisions to the full Board, which reviewed and acted on them in a public forum in compliance with state requirements for rule changes. The APA did not accept the TAL’s work word-for-word, and at times the TAL was divided. In these instances the APA Board made the final calls.

The basis for the start of the TAL was the APA’s response to a task force that studied APA rules and regulations and drafted a report. I’m not suggesting that the APA go to this length for revision of the SLMP, but I have urged the APA to undertake SLMP revision in a similar methodical, open, and transparent process. The APA should move through the SLMP section-by-section, bit-by-bit, and not try a massive free-for-all revision. A methodical, open, and transparent SLMP revision process will likely take several years, but it will be worth it.

What the TAL process shows is that the APA has successfully managed a complicated and controversial regulatory reform effort. The APA’s rules and regulations reform is a useful model for how the APA should embark upon and manage SLMP revision.

It’s all the more important that the APA manage SLMP reform in an open and transparent forum because some APA Commissioners function as advocates as well as regulators. APA Commissioners are leaders in the Common Ground Alliance effort, which now advocates for a variety of issues in the Adirondacks, some of which could come before the APA for action. APA Board Commissioners should separate their advocacy efforts from their roles as regulators. They should do one or the other, but not both.

The APA has managed open and transparent public processes in the past. It should do so again for SLMP reform.

The Adirondack Forest Preserve is the greatest ecological asset in New York. It is a protected natural resource area known the world around. Decisions on its management should be made in open and transparent forums.

Illustration Above: June 1972 edition of the Adirondack Park State Land Master Plan Map.

Peter Bauer

Peter Bauer

Peter Bauer is the Executive Director of Protect the Adirondacks.

He has been working in various capacities on Adirondack Park environmental issues since the mid-1980s, including stints as the Executive Director of the Residents' Committee to Protect the Adirondacks and FUND for Lake George as well as on the staff of the Commission on the Adirondacks in the Twenty-First Century and Adirondack Life Magazine.

He lives in Lake George and Blue Mountain Lake with his wife and two children and enjoys a wide variety of outdoor recreational activities throughout the Adirondacks.



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36 Responses

  1. Bill Ingersoll Bill Ingersoll says:

    Whoa, wait–let me get this straight:

    There are APA commissioners serving in the Common Ground Alliance, gathering ideas about how to reform the APA?!? Isn’t that an outright conflict of interest?!? I thought the commissioners were only supposed to digest the information prepared by the agency’s staffers, and not go out and perform their own independent advocacy work. I’ve heard Sherm Craig’s name mentioned in relation to CGA, but now I’m curious to see the full list of APA commissioners who are in this thing.

    A year ago I tried to get myself on the FPAC agenda regarding my “Backcountry” state land classification proposal, so I could make one presentation that conveniently included DEC, APA, and non-profit representation. However, I was denied a meeting slot **specifically** because the APA personnel were in the process of considering the classification plan for the Essex Chain, and my appearance at an FPAC meeting would give me an unfair level of access during the middle of their deliberations. If I did go to the meeting, I was told that the APA people would recuse themselves during my presentation. And these were just the agency staffers, not the appointed commissioners.

    I agree that the APA has a public participation program already in place, and this should be the primary vehicle–the ONLY vehicle–for any discussions with APA officials regarding APA issues. The Common Ground Alliance cannot and should not be the surrogate for that process. If citizens want to get together and hash out ideas for how things can be changed, that’s one thing. But when the actual state officials participate, this effectively makes CGA a private forum for public policy changes. This should stop.

    CGA has already gone beyond the realm of “advocacy” anyway by advancing an Article XIV amendment. Brian Mann spoke warmly about CGA last month on NCPR about how this new group represents a fundamental improvement in Adirondack political discourse, pointing out that in the past we had people communicating their ideas with piles of manure in Ray Brook. He suggested that Prop 5 was an example of CGA in action, where disparate groups got together and found an acceptable compromise.

    I disagree that CGA is all that separates us from Anne LaBastille’s barn burning down; we’ve been beyond that level of rhetoric for many years now, long before anyone heard of CGA. Once you get past the feel-good nature of the name “Common Ground Alliance” and look at what they’re actually doing, it becomes clear that CGA is acting like it’s the fourth branch of NYS government, accomplishing what traditional government has been unable to do. I can’t possibly be the only person who sees this as inherently wrong. Shouldn’t a proposed constitutional amendment be hashed out in a legislative committee? Shouldn’t APA reforms be considered on the record at a regularly scheduled monthly APA meeting? Who has granted this private group legislative and administrative authority? How does one get involved in this group, and what qualifies the participants to have this level of policy-setting discussion with state officials?

    If my perception of CGA is wrong, please provide the facts to set me straight. But I really think that too many people have been dazed by the warm-fuzzy nature of the name, which seems to make what the group is doing unassailable. We’re tired of news about senate coups, and we want to hear about former foes getting together in a spirit of harmony and cooperation. I get that. But at the same time, by questioning a “common ground alliance” I realize all too well that I sound like I could be opposing compromise and encouraging conflict.

    However, I think people should look at this much more critically: if state officials are routinely participating in extra-legal policy meetings with representatives of private interest groups, how is this better than traditional lobbying? With the latter, the lobbyists vie for the attention of politicians and officials. With CGA, the lobbyists appear to be working side-by-side with officials on matters of public policy, as though a state senator and the head of a hiking club were colleagues with equal authority.

    As I said before, if CGA consisted only of private citizens writing down their ideas and passing them off to the APA in the form of a comment letter, then that would be wonderful. But if public officials are also participating, then isn’t this a clear-cut ethics violation? Haven’t heads rolled in the past for lesser infractions?

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    • Justin says:

      Bill, have you attended any of the CGA meetings? As I recall, the workings of this group have been troubling you for a while, so I would think that you would have made it to the meeting this summer to see what exactly was going on.

      I haven’t been, but stakeholders getting together to discuss problems, their perspectives, and possible solutions seems like a very good idea. It also seems great to me that the decision makers are getting out there, meeting people who will be affected, and discussing the issues.

      Can you please provide the specific regulations that you feel are being violated by the CGA?

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  2. mike says:

    Maybe CGA works better because many of us are tired of the professional lobbyists around here. Maybe the lobbists were the barrier to moving ahead. We had government controlled by lobbists.

    For me, CGA is a route to interact with government directly and it is great.

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  3. anotherjoe says:

    Hmm, this sounds like sour grapes to my ears.

    The CGA work groups self-organize, right? What is odd about that? They’re not appointed. Mostly nothing happens. This is a very American sorta thing to do. And typically this is done without lobbyists, just motivated people.

    I’m not surprised you and Peter have a hard time being invited into a work group. This maybe is the elephant in this room? You guys are hard prickly types and CGA is not.

    CGA was different this year. Few speakers. But, 14 work groups on all sorts of topics that were selected by a poll of their email list. I hope a couple of them produce some real work.

    Hot debate. What do you think? Thumb up 8 Thumb down 14

  4. Peter Bauer says:

    All:

    Thanks for the comments.

    Bill has a beef with the CGA. I don’t.

    I have a beef with the new process for making major decisions in the Adirondacks where small groups develop a product that meets the Governor’s political goals and these agreements are sent to state agencies for approval.

    That’s not good public process. That’s not good natural resource protection or management.

    That was the process with the 2013 Essex Chain Lakes classification. The shortfalls of that process created many long-term management problems, which we all plainly and forced the DEC to officially withdraw a deeply flawed UMP for the area as it tried to skirt the many problems created by the classifications.

    Justin: The conflict of interest is not in the CGA meetings. It’s when the CGA manages a forum that endorses an issue or specific outcome that requires APA action, then the APA Commissioners who are active in CGA will have to recuse themselves from APA deliberations/actions. SLMP reform could be a long and complicated process with lots of discussion and many votes by APA Commissioners, if done right. So APA Commissioners who are leaders of the CGA have conflicts to manage.

    The other issue, of course, is not to let the public deliberative process be undermined. Widespread public comment should be sought by the APA about SLMP reform. Professional state lands staff and the legal team at the APA should use this to help identify issues and form draft revisions. More public comment and input should be sought on formal drafts. The process is corrupted when issues/solutions are handed to the APA for action by the Governor. Any route to the APA that goes through the Governor’s Office is not going to help long-term natural resource protection for the Forest Preserve.

    This is why I am advocating for a methodical, open and transparent public process for SLMP reform. The long-term stakes for the Forest Preserve from SLMP reform are high indeed.

    Mike: I agree that CGA has developed as an effective forum for having people engage on a suite of ideas for the Park. At these meetings people are happy and hopeful. My concern is that state officials could use this forum, or others, as surrogates for official public participation processes. In this way the public is shut out because decisions/agreements are made out of sight and public participation is simply a box to be checked.

    Anotherjoe: CGA has all sorts of work groups. That’s not the issue. The issue is when APA Commissioners are in leadership positions organizing these groups; that creates a conflict of interest that should require them to recuse themselves from SLMP reform items should they come before the APA. In this way, they need to choose if they are advocates or regulators. That’s an important distinction.

    CGA work groups are free to develop positions and advocate all they want. Go for it. If they want to take their work product to the Legislature and seek law changes, they should go for it. If they want to take their work product to the Governor or a Regional Economic Development Council and seek funding, they should go for it.

    The problem is when a state agency is administering an official regulatory process, such as rule changes or state land classification, then the rules should be followed whereby state agency staff/officials should administer a public process and officials need to be mindful about their conflicts.

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    • Justin says:

      Thank you very much for the clarification Peter. Glad to hear the CGA seems to have your cautious support and that you participate. I don’t know how the CGA meetings go, but it would be great if they could figure out how to manage things so officials could participate in a meaningful way, while avoiding conflicts.

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    • Bill Ingersoll Bill Ingersoll says:

      Well no, I don’t have a beef with CGA per se, just with the suggestion that appointed and elected officials are deeply involved in it, and are using CGA as a surrogate for official procedures, as you suggest.

      Whether we call the CGA participants “stakeholders” or “lobbyists” is just a matter of semantics, because in either case this is about private interest groups gaining direct access to state leaders. Lobbying is lobbying, regardless of whether it occurs in Albany, Ray Brook, or a picnic table in Long Lake.

      As I said, CGA minus the state officials is great. Non-profits, citizens, town/county officials getting together to hash out ideas for out state policies could be improved–great!

      But when the actual state-level decision makers get directly involved, then CGA becomes a political game with a pretty name. That’s my beef. If I am interpreting it correctly, my beef sounds very much like yours. I just arrived at my conclusion through a different line of reasoning.

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      • mike says:

        Bill-

        You say “Whether we call the CGA participants “stakeholders” or “lobbyists” is just a matter of semantics”

        I’ve gone to 3 forums. Calling me a lobbyist for that is kind of a dirty word.

        CGA is the only way I get to sit at a table with a State official (not always, but sometimes) and talk directly with them, say what I think, listen to them, unfiltered by official lobbyists. Far from being a problem, this is what government should be. How could this be illegal?

        I wish citizens had more direct access to officials in Albany and Washington. Moneyed lobbyists claim the role of speaking for people, but they subvert the public voice. They are the paid people in the picture, not people who go to CGA. They stir the pot of conflict for their own agendas and purposes.

        Anyone can go to CGA. Even you. Just sign up and go. I would guess 150-200 people go each year. People there seem to be from all over the place, with all sorts of views and interests.

        Leaders at all levels must talk with real world people and to deem that somehow unseemly or unethical seems to me to be way off base. Are you advocating for government where only registered lobbyist have access? You must be crazy. Look at what that’s done to Washington.

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      • Bill Ingersoll Bill Ingersoll says:

        I’m assuming that you’re aware that some regional groups like the Adirondack Mountain Club are registered lobbying organizations, and that some of the leaders of these groups are registered lobbyists. If they are participating, they are lobbying. These are who I mean by “lobbyists.” A “lobbyist” isn’t necessarily someone wearing a pin-striped suit and toting a briefcase.

        Obviously, ordinary people who go to a CGA meeting out of their own curiosity, representing no business interest or organized group, are neither “stakeholders” nor “lobbyists.” They are just there to observe. However, a “stakeholder” is by definition someone with something to win or lose. Their participation in CGA makes this forum less innocent in my eyes.

        Yes, I realize what you mean when you say, “Anyone can go to CGA. Even you. Just sign up and go.” Let’s not be so naïve as to think that groups with something to win or lose in specific Adirondack issues haven’t figured this out too. If CGA was just a meet-and-greet situation, fine. But the indication is that courses of action are being decided through CGA, and this is what crosses the line.

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        • Peter Bauer says:

          Mike and Bill,

          My point is not about CGA as a forum or catalyzing body. What it does as a collective body is fine.

          The problem is when regulators become advocates.

          When one is a regulator, which is what APA Commissioners are, they are held to ethical standards to make decisions based on a record of evidence and to remain open and impartial. By willingly becoming advocates for particular objectives they then have conflicts.

          What we have now is APA Commissioners, and a DEC official who also votes on the APA Board, working to lead the CGA at a time when the CGA is working on recommendations for changes to official APA rules or policies, which will eventually require these same people to cast votes as APA Commissioners.

          Other state officials that participate at the CGA do not have these conflicts because they’re not regulators. Betty Little is elected and she does not vote on the APA. Dan Stec does not vote on the APA, nor do any current Town Supervisors. An employee of the DOT does not have the same conflicts as an APA Commissioner, nor do employees of non-profits. They all have ideas and opinions, but since they’re not voting on these matters on the APA Board they can talk about them all they want.

          Again, the issue his not the role of the CGA or the work of the CGA.

          The issue is conflicts of interest among CGA leaders who are also APA Commissioners.

          The CGA SLMP reform effort is one of several at work in the Park and Albany to bring about changes to the SLMP. The problem for all these efforts is when they attempt to backdoor their reform packages so that they become a fait accompli for regulators, rather than bringing them out in open and transparent public forums.

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          • Bill Ingersoll Bill Ingersoll says:

            Thank you for the clarification. I get that you’re speaking to a specific issue. My point is that when these APA commissioners work directly with the non-profits to, say, work out a classification scheme for a state land parcel, those non-APA personnel present at the CGA meeting have a level of access that goes far beyond simply offering an opinion. They are directly participating in the decision-making process.

            When you offer an opinion about a proposed APA action, you get up, speak your mind, then sit back down and listen politely to the next person. The APA staff jots down all the key points so that they can be weighed later. Although you might like to, you don’t get to attend the internal staff meetings where the public comments are assessed and a recommended course of action is drafted.

            With CGA, what I’m reading is that the commissioners, the non-profits, and whoever else happens to be present are functioning as if they were all colleagues with equal authority, actively participating in the decision-making activity rather than simply commenting on it. The fact that the real commissioners then go back to Ray Brook and vote on these actions–setting up the conflict of interest situation that you’re speaking of–is just Part 2 of the issue, the way I see it. The SLMP process was intended to be apolitical, but CGA politicizes it by allowing direct participation.

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            • mike says:

              You seem to think CGA decides stuff.

              But CGA decides nothing. Not a thing. It can’t. Forum discussions are not a ‘decision making process’.

              Now that I think about it, no group of 150-200 people together for a few hours once a year could even hope to decide anything.

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              • Bill Ingersoll Bill Ingersoll says:

                Mike,

                The NYCO amendment and the Essex Chain classification have been reported as results of the CGA process. A CGA-based working group has issued another proposal constitutional amendment this year. This sounds pretty decisive to me. Don’t conflate the meanings of “deciding” and “approving.” That larger group of 150-200 is breaking down into working groups. The one meeting that you attended was not the whole thing.

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          • mike says:

            Peter-

            So, your issue is having the registered lobbyists in the same place with 3 specific state people? (Did I get that right?)

            Then, if I were to choose, I would ask the registered lobbyists not to come to CGA and have the 3 state people there. Do you know who the region’s registered lobbyists are and, if so, can you name them here? How can one find out who they are? A website?

            A few other questions:

            You mentioned a couple of teams working the SLMP issue, not just CGA. I would imagine all such efforts help get the ball rolling, but something like the SLMP will go thru a whole standard public comment thing regardless of what any other groups do. Right? Or no?

            Does everyone have to wait on the APA before doing anything? If so, that seems odd.

            I am confused be two conflicting points you seem to make (1)the APA shouldn’t ‘lobby’ for changes to the rules that govern it and (2) you want the APA to govern the process that changes the rules it enforces. What am I missing?

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            • mike says:

              Peter-

              I used google to answer my own question about “who are the registered lobbyists for the Adirondacks?”.

              – Adk Nature Conservancy has Mike Carr registered along with a bunch of others.

              – Adirondack Council has Willie Janeway and the main staff registered.

              – ADK Mtn Club has Neil and one other person registered

              – Protect the Adks has no one registered, not even a contractor

              – ADK Wild is also not officially registered (Dave, ask your attorneys about this)

              Peter, you if you want to invoke lobbying rules then register as a lobbyist, learn the rules.

              Finally, I think if all these people did not come to CGA, it would be better than missing all the State people.

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              • lawyer says:

                This is interesting.

                Protect and Wild as advocacy groups are required to be properly registered. Lobbying is what they do.

                There are fines and penalties for not doing so. With all their legal skills, you would think Protect and Wild would know this.

                Here is a link to the law: http://www.jcope.ny.gov/law/lob/lobbying2.html

                Here is a to an easy to understand citizens guide on the topic: http://www.nysegov.com/citGuide.cfm?superCat=102&cat=145&content=relatedfaqs

                Here are the forms to register. Don’t forget that reporting requirements that come with being registered: http://www.jcope.ny.gov/forms/lobbying.html

                Bringing up this topic while not being properly registered and filing required reports is not wise.

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                • Peter Bauer says:

                  Mike – you do not have it right. Not at all.

                  The issue is not about “having the registered lobbyists in the same place with 3 specific state people” as you say. The issue is that these three specific state people are helping to manage an overall effort with the CGA that now involves advocacy on matters that they will eventually have to vote on in their roles as APA Commissioners, which is that of an official state regulator.

                  Mike/Lawyer: Lobbying is not what we do.

                  Nothing that I wrote in this piece is about lobbying. I am advocating for an official open and transparent administrative process and my advocacy here does not fall under any definition of lobbying.

                  Nothing that I saw at the CGA meeting last month falls under the definition of lobbying. It was a meeting that was open to the public — anyone could attend. It was not a political fundraiser. It was not a closed-door meeting. It was wide open.

                  PROTECT does very little “lobbying” as defined in NYS law.

                  In my role with PROTECT I am not a state regulator, subject to state ethical standards, but an advocate who primarily manages an independent public oversight program for the Adirondack Park.

                  We have few closed-door meetings with elected reps or their staff where we privately try and convince them to do something. Other groups have offices in Albany for these purposes, but we do not, and we assiduously stay below legal limits that would necessitate registering as lobbyists.

                  We have very few closed-door meetings with officials at state agencies. We post all of our correspondence openly on our website. We’re selective about what legislative items to get involved in and only act where we can make a difference — and we do make a difference.

                  In 2014, we were involved in two legislative efforts and stayed below legal spending limits in staff time/expenditures. (Both efforts were successful mind you.)

                  As everybody knows, PROTECT has allocated considerable resources towards some high profile legal matters. What a lot of people don’t know is that we also put a lot of resources towards scientific research (there’s more than 90 reports on the water quality of various Adirondack lakes on our website). PROTECT primarily engages in independent public oversight of state/local management of the Adirondack Park, legal, policy and scientific research as well as public education and legal action. While we advocate on many Park issues, we advocate on a small set of legislative items.

                  The overwhelming amount of our work is dedicated to independent public oversight (watchdog work) and is undertaken through public forums, public hearings, and administrative regulatory processes, such as the recent Essex Chain classifications, Essex Chain UMP, or Jay Mountain Wilderness UMP amendments, or the current national public hearing on the EPA’s Clean Power Plan, or over specific proposed developments seeking permits, where we comment to regulatory bodies, work to educate the public.

                  Through our independent public oversight work, we encourage people to participate in public hearings and regulatory reviews, but this is not “lobbying” because the hearings are open to everybody. We’re generally not trying to change the laws — we’re generally trying to get people/agencies to obey the law.

                  When we call upon the APA to manage an official public process on SLMP reform in an open and transparent forum, this is not lobbying either. We’re doing it publicly, such as at the recent APA public meeting, and not through private meetings. Any future SLMP reform effort will be under SEQR/SAPA — both official legal processes that provide for public participation, though we encourage the APA to maximize public participation as this is all about public lands!

                  Many are uncomfortable with open forums and prefer a closed process.

                  We take a different position and believe that sunlight improves the process.

                  Major recent decisions have been determined through closed processes and this is unfortunate.

                  SLMP reform should be managed through a public process.

                  Hot debate. What do you think? Thumb up 6 Thumb down 3

                  • Woody says:

                    Mr. Bauer wrote: “Nothing that I saw at the CGA meeting last month falls under the definition of lobbying. It was a meeting that was open to the public — anyone could attend. It was not a political fundraiser. It was not a closed-door meeting. It was wide open.”

                    I hate to call you on this but it sounds here like your trying to argue it both ways. First there are APA people wheeling and dealing at this CGA thing, trying to change the APA from the outside so they cann vote on it later. Now your saying that meeting was all open sunshine. Were those APA people advocating at the public meeting where every body could see them or did they save that for after the public leaves?

                    I must say, perhaps I might want to support your group some day, because maybe you guys do good work now and then. But Mr. Bauer, you suck at communicating your groups message. When ever I start to reach for my check book you speak up and back it goes.

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                    • Peter Bauer says:

                      Woody – Wow.

                      To be clear: The potential conflicts for APA Commissioners with the CGA are only with those issues that the CGA works on that could come before the APA for action where the APA Commissioners have to vote. The CGA administers a variety of work groups whose work is ongoing, not just brainstorming sessions at the 1-day CGA meeting in July.

                      Will the CGA SLMP reform work group develop a work product that is submitted to the APA or involves recommendations for SLMP reform? We’ll see in the months or years ahead. If they do, this creates a conflict for APA Commissioners who help to lead the CGA.

                      It’s important to note that while the CGA meeting in July was public, the CGA work groups that follow-up operate in a closed process with meetings that are not public.

                      It’s also important to note that there was little produced by the SLMP reform group at the CGA meeting in July other than random brainstorming comments.

                      Far from trying to have it both ways, I was simply pointing to the CGA SLMP reform effort for two reasons: 1) it creates a potential conflict of interest for APA Commissioners; 2) it is one of several SLMP reform efforts underway outside the APA.

                      There’s no conflict now, but there certainly could be. I called on APA leaders to separate their advocacy from their role as regulators. I think that’s fair.

                      I hope that’s clear.

                      One other point. Any public forum where SLMP reform is discussed does not create a conflict for APA Commissioners or staff. These people should be free to attend any SLMP reform conference or panel discussion or public meeting. If various groups want the APA to brief them on SLMP reform in an open meeting that’s not an issue. The APA does that kind of thing all the time. But this is very different than the conflict of interest that I’ve noted above.

                      Now on lobbying.

                      Commenters have raised issues about lobbying. I did not talk about lobbying in my piece above. Lobbying under the law is very different than a conflict of interest. Commenters need to make that distinction.

                      Nothing at the CGA meeting in July met the definition of lobbying for reasons that I stated above – open, public, etc. If various groups seek private meetings with APA staff or Commissioners about SLMP reform, then that is lobbying under the law.

                      Many people throw around the term lobbyist widely and casually. I was a registered lobbyist for years. I also worked in positions where I advocated but did very little actual legal lobbying. Again – we focus much much more on trying to get people to obey the laws, rather than trying to change the laws. There is a lot of advocacy that is part of larger lobbying efforts, but there is also lots of advocacy that is not lobbying.

                      PROTECT does very little actual lobbying. We remain well under the limits in the law that would require an organization to register its staff.

                      I hope that’s clear.

                      Finally – I think my main points in the piece above are valid: The APA should manage an open and transparent SLMP reform process. The APA should not allow this process to be done behind closed doors by surrogate groups.

                      Hot debate. What do you think? Thumb up 6 Thumb down 3

  5. Pete Klein says:

    Does a person lose their rights of citizenship if they are elected or appointed to a position in government?
    This seems to be implied in some of what is being said here with reference to what takes place at the CGA meetings.
    Is there something wrong with lobbying? Is there something wrong with belonging to a special interest group? Should some be included while others are excluded? Who decides?
    We all have our opinions and beliefs. Some we maintain. Others we change.
    I can endorse much of what Peter is suggesting but with the exception of him suggesting APA Commissioners should recuse themselves because of involvement with the CGA.
    Before, during and after they are commissioners, they are humans with their own individual opinions and beliefs.
    If we don’t want humans serving in governmental positions, is it time to take humans out of government and subject ourselves to being governed by computers?

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    • Bill Ingersoll Bill Ingersoll says:

      Jurors who serve on criminal trials are ordinary humans too. Should they organize picnics in which the defendant, the DA, and the victim get together and find “common ground”? And then go to the courtroom the next day to inform the judge they don’t need to conduct a trial because they’ve already reached a verdict?

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  6. George Nagle says:

    The APA Act establishes the APA as an independent agency responsible for establishing state policy for the Adirondack Park.

    The key question is, Will the APA function as an independent agency? Or, will it accept the role of rubber stamping the governor’s wishes?

    An independent APA will welcome stakeholder input and support a transparent process in amending the SLMP. It will be open to modifying its initial proposals based upon public input.

    A few years ago, a former agency member, with many years of service, said that the agency lacked balls.

    It remains to be seen if the APA will assert itself as the law requires.

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  7. […] A version of this article was published on the Adirondack Almanack. […]

    Like or Dislike this comment: Thumb up 0 Thumb down 0

  8. Diane says:

    http://bolderadvocacy.org/wp-content/uploads/2012/05/What_is_lobbying.pdf

    Helpful definitions regarding non-profit advocacy and lobbying. The host site has lots of other helpful information too.

    Well-loved. Like or Dislike: Thumb up 4 Thumb down 0

    • Paul says:

      How an organization like the Adirondack Council for example can publish a thumbs up / thumbs down thing on the governor and not have that be considered an endorsement (or non-endorsement as in – an endorsement of someone running against him or her) by the IRS is beyond me?

      If you want to do that sort of stuff fine, just pay your taxes and help us pay for some of the stuff you endorse like more forest preserve land and people to take care of it.

      Like or Dislike this comment: Thumb up 2 Thumb down 2

  9. Joe says:

    Thanks Diane. The info at the link you posted certainly describes what Protect and Wild do. So they should be properly registered to do this work. They are not.

    What happens if they’re not registered? Fines and penalties are mentioned above, but what are they? Does anyone know?

    You would think their opposition would go after this in some fashion.

    Like or Dislike this comment: Thumb up 4 Thumb down 1

  10. Hawthorn says:

    Don’t know the law about it, but it sure seems like a huge conflict of interest for APA commissioners to serve in the CGA, which is discussing how to reform the APA.

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    • Paul says:

      These folks are no longer commissioners. As much as I probably disagree with them on most issues they have just as much right as the anyone to participate in something like this.

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      • Paul says:

        Now that I look at this again maybe these folks are current commissioners? If they are they should step back.

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  11. Don Dew Jr. says:

    Peter, With this interesting commentary and Protects recent legal challenging of APA decisions, why aren’t you calling for an outright abolishment of the APA all together. It would only seem logical if they (APA) are as flawed as you claim.

    Like or Dislike this comment: Thumb up 1 Thumb down 6

    • Peter Bauer says:

      PROTECT strongly supports the APA Act and believe that the Adirondack Park has benefitted enormously from the APA’s regional land use regulation program, for both public and private lands. We think the APA Act should be strengthened in a number of ways.

      This commentary clearly calls for the APA to continue its work. If the APA determines to revise the SLMP we hope that they do it in a formal public and transparent forum and not through surrogate groups meeting behind closed doors.

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  12. Paul says:

    The IRS rules that allow 501c3 organizations like ADK to lobby need to be changed. Is their lobbying for things like NYCO really considered “insubstantial” by the IRS?

    Better yet they should just start paying taxes and then they can do whatever they want. Same goes for a number of these other organizations that claim they don’t have political agendas.

    Like or Dislike this comment: Thumb up 1 Thumb down 3

  13. bill says:

    All this about lobbying sent me researching. I believe that organizing groups of people to send comments into a public process is part of the legal definition of lobbying. Clearly Protect and Wild do that. The law may have changed since Peter last was official. I encourage others to look into this serious issue. Also,Protect spends less than than 10% of its budget on science, the rest is all legal and lobbying.

    With respect to the SLMP, any group or person can write a whole new SLMP as a proposal. The more the better. That includes CGA although they would be smart to not have APA people on the work group. Then, the APA can review all the drafts submitted and go thru whatever process. The idea that only the APA is allowed to work on this is silly. And it puts the agency in control of writing it’s own rules, just what Peter is afraid of.

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  14. Peter says:

    Fascinating to hear Mr Bauer refer to Protect! as “we.” The organization appears to be made up of Mr Bauer and an office administrator. Obviously, the board is active as well, but one can understand how he consistently shifts pronouns: “I” and “we” seem easily interchangeable in an organization of one. Websites, social media, and a loud and droning voice can make that “I” much larger and more important than it actually is. And while there is tremendous value in the idea that one person can make a difference, we can all benefit from remembering not to accept “I” and “we” as interchangeable.

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    • Hawthorn says:

      I’m not a member of Protect and I think Bauer can defend himself, but isn’t it rather common for the head of an organization to use “we” as he represents himself, the staff, the board, and any dues-paying supporters? Last I checked, you only need two people to make it a “we.”

      Like or Dislike this comment: Thumb up 4 Thumb down 1

  15. Paul says:

    “The Adirondack Forest Preserve is the greatest ecological asset in New York.”

    That is debatable. The marine habitats that surround Long Island are high on the list and greatly under threat.

    Like or Dislike this comment: Thumb up 1 Thumb down 2

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