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By Ralph A. Cossa
In his Jan. 11 commentary in the Adirondack Almanack, Peter Bauer asked the question “Will the new boss be the same as the old boss?” in questioning whether the Adirondack Park Agency Board, under new chairman John Ernst, would finally start holding adjudicatory hearings regarding contentious issues, or would it continue to avoid this process which allows citizens’ and experts’ views to be heard and questions answered. The issue in question was the White Lake Quarry Application (APA2021-0075) which called for extensive mining operations directly over the community’s aquifer and within 1000 feet of their pristine spring-fed lake, in the middle of a tourist-oriented residential community of some 400 homes and small businesses.
Adjudicatory hearings used to be a regular occurrence; between 1973-2008, there were 151, or roughly 4-5 per year. Since 2008, not a single adjudicatory hearing has been held as the APA has become more and more inclined, especially during the Cuomo era, to support business activities in the Park it is sworn to protect. Governor Hochul has pledged to change that mind-set. Obviously, the word has yet to trickle down to the APA.
I personally and directly (via Email) pleaded with APA Chairman John Ernst to ask the staff one simple question during its review this past Thursday and Friday (Jan 13-14) of the White Lake Quarry application: “Has the criteria for an adjudicatory hearing been met?” (We believe and have documented to the APA that six out of seven criteria for an adjudicatory hearing have been met; only one is necessary to justify a hearing.) Instead, at the meeting, the Chairman focused on how they could justify avoiding a hearing.
The APA may have had the right to bypass a hearing but it certainly was not the right thing to do in this case.
The Adirondack White Lack Association (AWLA, of which I am a member and my wife its president) provided expert testimony arguing that the scientific data and monitored testing required to demonstrate that the proposed mining operation will not adversely affect our lake and community is lacking or incomplete. Instead of granting us a hearing, we were dismissed as “confused and misinformed.” A formal adjudicatory public hearing – a quasi-judicial proceeding that’s administered by a Department of Environmental Conservation (DEC) Administrative Law Judge – would have allowed our assertions to be independently assessed; it would have also permitted us to cross-examine the applicant’s experts and the APA staff. The AWLA, along with Protect the Adirondacks, the Adirondack Council, the Sierra Club, and a number of other local organizations, formally requested an adjudicatory hearing after providing documentation affirming that the criteria for such a hearing had clearly been met. But the APA Board voted instead to approve the application without a (fully justified) hearing.
Why was our plea ignored? Only the APA can say for sure. A cynic might think that it was because the APA didn’t want to spend the time and expense involved in a hearing where it would be required to respond to questions and defend its conclusions. A bigger cynic might think the APA realized it should never have marked the application complete in the first place and wanted to avoid being questioned under oath about its initial mistake and failure to right the wrong. Whatever the reason, the end result is the same: conflicting evidence will not be heard and judged in a neutral setting and the community’s need for answers will not be satisfied.
Once again, it’s business as usual at the APA. Business interests have prevailed, while the interests of the surrounding community are ignored. We (foolishly) expected better from Governor Hochul and Chairman Ernst. We should have known better. When a member of the White Lake community called the APA last spring to complain about the then just-submitted application, she was told not to bother since it “was a done deal.” We didn’t want to believe it, but it turned out to be true.
Ralph Cossa is a retired USAF Colonel who spends May through October on White Lake in the Adirondack Park. His wife, whose family has resided on the lake since the 1950s, is president of the Adirondack White Lake Association.
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I’d like to give Ernst the benefit of the doubt and assume that the APA made this decision in the best interests of the entirety of the Adirondack Park.
I do know from experience however that it will help your cause if you start inviting APA officials out to your camp on White Lake to grease the wheels a bit. That’s what Hutchen’s and the Livingston Lake Club did with Bill Curran back when these hearings were more commonplace – at least according to his book (Livingston Lake 1901-2001 by William D. Hutchens).
The best devil’s advocate explanation that I can think of for the decision is that machinations of the APA are traditionally bent towards scrutinizing housing development rather than mining operations. Obviously, the protections of the APA Act extend WELL beyond housing. But the above argument really breaks down when we start to consider the recent APA track record. Just in the past year, a dismayed public (as evidenced by an outpouring of concerned public comments) watched as Woodward and Saranac Lakes (both Lot 9 and the marina) saw permits granted with a frightening lack of scrutiny; and state lands are seeing a huge build-up of trail networks and historic campground expansions throughout the Park–all green-lit by APA despite public opposition. There is a pattern of neglect that is plain for all to see. And the recent shake-ups at APA have done nothing to restore confidence that Art. 27 will be upheld going forward, as we contend with ever-increasing development pressures. Instead, the Hochul administration is pouring millions into the Park economy–e. g., Tupper Lake DRI via REDC and Gore Mountain Ski Bowl via ORDA. It is all very difficult to understand.
Wow, sad, but apparently true. Well written. Maddening. Is there any recourse for you (and those of us who love the Adirondacks?) I am a retired 100% disabled Vietnam army veteran, and spend my summers, or as much as I can, at Twitchell Lake in Big Moose, NY, a bit farther up than White Lake. Can I write to the Governor or the APA chairperson?
Not unexpected but it could be a worse scenario had the APA conducted an Adjudicatory Hearing then ignored all the evidence and gave the go ahead like the very last Adjudicatory Hearing held for the ACR development.
The APA has been a failure for years and corrupt. APA fails to follow policies, allows very damaging projects, ignores ongoing issues. Basically it looks like anyone who brings a big enough suitcase of money always wins. Payoff? kick backs? nepitism? there are just too many violations of policy to ever trust APA anymore. The adirondacks as a forever wild is seriously endangered, the enviroment be damned for profit!
To allow a quarry with explosives and the very toxic residues, high amounts of machinery and the fluid leakage, exhausts. Destroying the very tranquility of nature with booms, disrupting a town, tourism, dangerous run off into streams and water table (as has been shown in quarries across the nation) heavy metals leeching.. For what?? a few short term jobs, possible decades of damage to make some rich guy richer at the cost of an entire communities welfair??? So yeah APA is corrupt and being paid off some where.
Time to lawyer up and challenge the agencies…😎
I am not going to comment on this particular case. I haven’t done the homework to justify that. But as I already have said in a guest column here, adjudicatory hearings are not a the long run solution. One may be justified in this case. If so, one hopes that a court will order the APA to conduct it.
But the reluctance to go to an adjudicatory process is deeply ingrained in everyone who practices planning. There is no practical difference between an administrative law hearing and going to court. In both cases, you enter a forum where nothing creative, nothing that will improve things, is going to happen. One side will “win,” the other will “lose,” and the reasons why are almost always going to be narrow and technical, not substantive. If the developer wins, hope of a better outcome is essentially lost. If those who oppose development win, the likely (though not quite inevitable) outcome is that a new proposal, only technically different from the first comes forward and everyone goes through the cycle again.
There are two solutions, neither perfect, both better.
The first is sound, up-front planning that results in a detailed and enforceable vision for a particular community or landscape. Local folks could do this. They don’t have to rely on the APA. They are allowed to create their own plans. But mostly they won’t. They say its controversial and expensive! And, it is. But is it as controversial and expensive as what happens instead?
The second is procedural reform at the APA. I am not going to delve into that. Too much detail for this venue. I said a bit in my earlier op-ed. But it is possible – it is in fact done on a regular basis – to create a process that nearly always yields better results.