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(This article, which was widely distributed in reprint form, relates how the existence of rattlesnakes on neighboring property bought by the land trust is being used to stop the progress of Jay Monfort's quarry permit application.)

WEALTHY LAND TRUSTS AND DEC SQUEEZE FISHKILL BUSINESS OWNER

by Carol W. LaGrasse, New York Property Rights Clearinghouse, Vol. 4, No. 2 (PRFA Spring-Summer 1997)

Private property lies in the path of secret acquisition plans
The "willing seller" lie is illustrated

Jay Montfort's ancestors have been productive business people and farmers in Fishkill, in southeastern New York, for 300 years. His firm, Montfort Bros., has been manufacturing concrete block since Prohibition, when his grandmother persuaded his grandfather to find another business for the family instead of making cider. She thought that, although apple cider was legal, manufacturing it during prohibition wasn't proper.

To make concrete block, a widely used, versatile and economical building material, a manufacturer needs a source of aggregate. Mr. Montfort happens to own the land to supply much of his raw material, including an adjacent parcel on which he plans to extend his mine and thereby continue to have a supply of suitable aggregate. The parcel owned by Mr. Montfort's firm, Sour Mountain Realty, is on the lower elevations of one side of a mountain which is part of Fishkill Ridge.

The problem for the Montfort business is that powerful preservation groups, plus DEC (the State Department of Environmental Conservation) and the State Parks office, have carefully calculated maneuvers underway to acquire the Fishkill Ridge. The two New York-based groups, Scenic Hudson and Open Space Institute (OSI), are armed with access to a $400 million land acquisition fund from the Reader's Digest fortune held in the Lila Acheson and DeWitt Wallace Fund. A third group, the Trust for Public Land, which shares Manhattan offices with OSI, is one of the wealthiest land trusts in the United States.

Expensive Travail
Seven years ago, Mr. Montfort began the process of working with DEC and the Fishkill zoning agency to comply with all requirements to obtain the necessary permits.

Mr. Montfort automatically met the local zoning requirements but decided to voluntarily comply with tighter new rules which the town contemplated at the time. The Town, which supports the mine, allowed the project to proceed.

Mr. Montfort approached the DEC with the same good faith. The DEC required that he apply for a new mine rather than an extension of his long-established operation. On March 30, 1990, Montfort filed his permit application. The DEC review process became complicated and costly. Time and again, DEC required re-submissions of additional information and repeatedly exceeded its legal time limits by one to four months when reviewing Montfort's papers.

Scenic Hudson, which has an associated land trust by the same name, bought a 1,026-acre tract next to Montfort's land and dubbed it the "Fishkill Ridge Conservation Area." By that time, Montfort was well into the State's exhaustive full environmental review process. In January 1993, Scenic Hudson wrote DEC asking to participate in the environmental process. Mr. Montfort learned of their letter eight months later as a result of a Freedom of Information search of his own file.

Montfort's thick Draft Environmental Impact Statement (EIS) was rejected as incomplete in April 1993, over six months after submission and 140 days beyond the maximum allowed by law. He next submitted a now two-volume Draft EIS to meet DEC's additional requirements, but DEC again rejected it in February 1994, 70 days late. Then DEC required that Mr. Montfort hire expensive experts on visual impacts and acoustics to work for the agency.

DEC held up the review process for the rest of the year. Meanwhile, in November, without telling Mr. Montfort, DEC held a meeting with Scenic Hudson and the State experts Mr. Montfort had hired. At the end of December 1994, the DEC Region 3 permit administrator William Steidle sent a long memo about the meeting to Mr. Montfort listing Scenic Hudson's concerns and said that in order for the Draft EIS to be complete, Mr. Montfort had to respond to every concern in the letter. When Mr. Montfort later sued DEC in 1997, he was to claim that this new requirement was a total modification of the written scoping outline for the Draft EIS that DEC gave Mr. Montfort three years earlier after the public scoping session.

But in March 1995, Mr. Montfort resubmitted another Draft EIS to DEC Region 3. This document took three volumes, each over four inches thick. This document was so voluminous that it far exceeded the length of the 1993 final environmental impact statement for the historic draft regulations for the entire New York City Watershed in the Catskills and east of the Hudson.

On May 30, 1995, the DEC finally accepted the Draft Environmental Impact Statement a few months after Governor George Pataki took office. The project as finally refined to suit DEC comprises a surface mine with a life expectancy of 150 years, based upon a mining rate of 350,000 tons per year. Montfort Bros.' yearly capacity is less than 1/10 that of the Trap Rock (now Lone Star Industries) operation in nearby Wappingers Falls. The proposal includes the quarrying of rock from approximately 120 acres with an additional 50 acres for stockpiling, an office, access road and storm water control. The mining operations and the cuts are designed to be screened from the main highway, Route 9.

When DEC accepted the draft environmental statement, Scenic Hudson hit the panic button. They began an aggressive public relations campaign against the mine. "No Mitigation Proposed," pronounced a fallacious headline in one of Scenic Hudson's slams of the Montfort Bros.' plans.

Negotiations sought by Mr. Montfort were originally promising, but were suddenly dropped by Scenic Hudson. They did not respond to Mr. Montfort's overtures to trade higher elevation land with them for lower land or to revise the design of the mine in consultation with them. With no word of recognition for Montfort's stream protections, protections for animal wildlife and plants, terracing and elevation reclamation, Scenic Hudson issued an alert to its members, "A diverse wildflower community, ideal reptile habitat, and a wilderness setting preferred by many bird species hang in the balance as the mining proposal goes forward."

In September 1995, a second, lengthy public hearing was held, where, unlike the empty scoping session years before, the public crowded in to comment.

DEC determined, from the costly studies it required Montfort to perform and the public hearing, that two issues, aesthetics and noise, had to be formally studied and debated. Mr. Montfort had to continue to pay for his own technical experts and legal professionals as well as DEC's technical experts against him in a court-style hearing. In March, the issues were taken to this formal adjudicatory hearing of sworn testimony, cross examination and rebuttal before a DEC Administrative Law Judge, Francis Serbent. The hearing lasted to July.

Scenic Hudson staff, lawyers and expert consultants argued that the mining "would deface one of the most highly visible and historically significant landscapes in the Hudson River Valley," it was reported in a one-sided article against the Montfort plans in the local weekly, Southern Dutchess News.

But this year's adjudicatory hearing was not to be the end of the DEC maze.

Rattlesnakes
Just before the Adjudicatory Hearing, the State used old information to trump up a new issue.

Just by chance, DEC told Mr. Montfort, an agency wildlife consultant, Randy Stechert, who had previously been retained as an expert for a preservation group opposing the quarry, and a DEC summer employee Jesse Jaycox, were hiking on Scenic Hudson's park adjacent to the Montfort property last year and "discovered" a rattlesnake den on Scenic Hudson's property. Rattlesnakes are a protected species in New York.

The rattlesnake dens on Scenic Hudson's property were already well known. In fact, Mr. Montfort had dealt extensively with the issue of these rattlesnakes in the environmental analysis for the quarry and had instituted voluntary protective measures even though the dens were a recognized safe distance away and even though no signs of rattlesnakes could be found on the Montfort land. DEC had specifically decided not to adjudicate the rattlesnake issue.

In contravention to its own rules, the State had already leased the property from the land trust as a park, without performing any environmental impact study for the rattlesnake issue and without considering the human safety issue related to trails the land trust developed.

DEC, however, isn't embarrassed by violating its own rules. On January 30, 1997, DEC declared that Mr. Montfort had to submit a supplemental draft environmental impact statement on the rattlesnake issue. Under New York's open-ended environmental review law, Mr. Montfort would have to study for years to see if rattlesnakes are a potential "issue." Then, in the course of more expensive review, and a likely public hearing, it would have to be determined whether rattlesnakes are a "substantive and significant issue" in order to be worthy of adjudication. Even if, after many years, this adjudication is also complete, a "new" issue could be raised.

So, on the one hand, DEC and Scenic Hudson are exempt from environmental review when they develop a park on the very land where "threatened" and dangerous rattlesnakes are living, while, on the other hand, Mr. Montfort is to be required to retrace his expensive environmental review, including his mitigations to protect rattlesnakes, because rattlesnakes and dens exist, not on his land, but the land owned by the inner environmental circle that is somehow exempt.

This DEC pronouncement would undo Mr. Montfort's seven-plus years of painstaking, expensive compliance with frivolously time-consuming environmental review. The only logical explanation for the new requirement is to drag the permit process out longer and kill the project, Mr. Montfort believes.

In May, Mr. Montfort sued.

"... the motivation for such abusive tactics appears to be the desire by the State and Scenic Hudson to acquire [Mr. Montfort's] property to adjoin the park purchased by Scenic Hudson," stated court papers by his attorneys Wichler and Gobetz of Suffern and Laura Zeisel of New Paltz.

The environmental conservation law sets out a clear order in which each stage of environmental review takes place. The draft environmental impact statement stage was long past. The old issue which had been closed cannot legally be revisited.

Even if the evidence were "new," DEC was still unjustified in its requirement. New issues which have to involve genuinely newly discovered evidence, can only be covered in the final environmental impact statement. Contrary to DEC's claim, the law does not allow for a Supplementary Draft Environmental Impact Statement. It turns out, Montfort argued through his attorney, that DEC's regulations are contrary to the law.

But DEC is determined. The judge of the adjudicatory hearing announced that he would hold off his decision, but he required legal briefs from both sides. Mr. Montfort appealed for a decision; after all, why hear the rattlesnake issue if the judge rules against Montfort on noise and aesthetics? (Mr. Montfort is confident of his presentation of these issues, however.) The State has filed an argument to stop the filing of legal briefs before the administrative judge until the rattlesnake issue is heard.

Montfort is determined, also, and intends to hold the State and the high-sounding wealthy environmental groups to account in court. - Carol W. LaGrasse

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