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Founded 1994

SONAR DEMONSTRATION PROJECT IN LAKE GEORGE — It's not about the science, it's about the secrecy.

It was a public hearing that was closed to the public.

In July, the Adirondack Park Agency Commissioners sent to a public hearing the Lake George Park Commission's application for a trial of the herbicide Sonar to eradicate Eurasian watermilfoil in four small bays of that lake. The state's Office of General Services, which owns the bottom of the lake, was a co-applicant.

How to eliminate milfoil has been controversial for years in the Lake George region. Self-styled environmental organizations, the Adirondack Council (AC) and Residents Committee to Protect the Adirondacks (RCPA) in particular, believe that use of any chemical is off-limits in Adirondack lakes. Many local residents, local governments and the Lake George Association/Coalition of Lakes Against Milfoil [LGA/COLAM] are of the opinion that the method is worth a try since alternative controls such as benthic barriers and hand-harvesting have not worked.

The science is complex. Reams of documentation pro and con have been produced, peer-reviewed and studied since the mid-1980's. The public hearing was shaping up to be the ultimate forum for debate, so the APA board could make a decision and settle the matter one way or the other.

APA public hearings are formal proceedings, held before an impartial hearing officer. They involve sworn statements and witnesses, direct and cross-examination, expert testimony, briefs and reply briefs, just like a courtroom.

Statutory parties to the hearing are those named in the law as having a direct interest: the local governments, state agencies and adjoining owners. The Adirondack Park Local Government Review Board, the monitoring arm of the APA named in its law as representing local interests, is also a statutory party. There is an informal public statement period at the beginning of hearings in which anyone can speak, but individuals or organizations must prove to the satisfaction of the hearing officer that they have standing in order to participate as active parties.

The hearing officer in the Sonar case was Molly McBride, an Administrative Law Judge from the Department of Environmental Conservation's mediation division. She convened the proceeding on August 30, 2001 and assigned party status to RCPA, AC and LGA/COLAM, and to the one individual who had sought it. She also identified the relevant issues after a conference with the
applicants, APA hearing staff and the parties. Including the informal public statement session, this all took less than five hours on that single day.

But next, instead of the expected rounds of testimony, the rebuttals from expert witnesses, the cross-examination by opposing attorneys, the re-direct and re-cross — the hearing turned into "confidential negotiations" among the parties. With no transcript and no evidence.

What came out of the closed-door session was a "stipulation," signed by some — not all — of the parties, including APA staff attorney Mitchell Goroski and the applicants. The stipulation laid out the conditions to be included in the APA permit, and it allowed only two bays to be treated with Sonar, eviscerating the original proposal for a four-bay demonstration using two different forms of the chemical. Further, the stipulation allowed any of the signers to withdraw their agreement if the APA commissioners were to make any changes to the conditions when they voted at their January meeting. Two parties did not sign on; one wanted an even more restrictive permit and the other a much more lenient one.

So the APA Commissioners were handed an agreement that spelled out all the terms of the permit, before they even had a chance to discuss it. At once, they saw they had not a shred of scientific information.

Commissioner James Townsend, a lawyer from Rochester, began. "I didn't feel there was a hearing, or even if there was stipulated testimony that addressed the concerns we had when we voted to go to public hearing," he said. "I feel like I'm going into this with one arm, if not both, tied behind my back."

Commissioner Cecil Wray, a Manhattan attorney, elaborated on that. "Aren't we in the position of being presented with something that's been negotiated by the parties without any real record?" he asked.

Commissioner William Kissel summed it up. "We as a board have lost control of this process," the Lake Placid lawyer said.

Stipulations are allowed under APA regulations. But they are intended to cement agreement on basic facts, in this case perhaps the acreage of the lake or what the Sonar manufacturers' warning labels actually say. Conferring informally is also allowed, the goal being to simplify or separate out the issues to avoid duplication or irrelevant subject matter. However, stipulations and pre-hearing conferences have never been used to dictate the terms of an actual permit.

One would search in vain for the exact words that were exchanged at the hearing, which led to the confidential session. The stenographic transcript is three slim volumes, mostly containing statements from area residents which made up the informal part of the hearing. There was no indication who suggested the "negotiations," if anybody objected, and what ALJ McBride had to say. So the decision-making process which closed out the public is also closed to the public.

McBride's consent to the negotiations is contrary to Section 580.14 of the APA's rules and regulations, which states that the hearing officer "shall conduct the hearing in a fair and impartial manner, and shall assure that a complete record is kept." Townsend alluded to this clause when he noted, "That the ALJ would participate in a settlement discussion flies against my training as an arbitrator."

Also, regulation 580.6 states that APA staff "shall act as an advocate for a full and complete record upon which an informed decision can be made." It's hard to imagine a more precise directive than that, yet nobody at the APA meeting, including the Local Government Review Board representative, asked why APA hearing staff would have agreed to the kind of confidential negotiations that took place. Adding to the confusion was Department of State designee Richard Hoffman's observation that not all of the parties had signed on to the agreement.

To their credit, the Commissioners voted unanimously to send the whole matter back to public hearing, although to use APA associate counsel Barbara Rottier's curious phrase, "There was no testimony, so you really didn't have a hearing." Unfortunately, that decision delays still further any chance for the time-sensitive scientific experiment to begin this year. The blame for that should not fall on the voting members of the board, although they do bear responsibility for their general neglect in reining in their staff.

If left to stand, the APA hearing staff's action, coupled with collusion by the ALJ, sets the stage for private advocacy organizations to insert themselves directly into the decision-making process in any future permit applications. This case is particularly egregious, being that the LGPC and OGS are themselves public entities in control of a public waterbody, and the decision will have ramifications for future treatment of other Adirondack lakes, both public and private. There's another chance to open this matter up to full scrutiny when the public hearing resumes in late April.

SIDEBAR

At the public hearing convened by the Adirondack Park Agency regarding the Sonar demonstration project in Lake George, the state Department of Environmental Conservation, while a statutory party, did not participate in the hearing. Regional Director Stuart Buchanan, the DEC's designee to the APA, said that DEC was doing "its own evaluation."

APA Commissioner Cecil Wray was rightfully blunt in asking, "I don't understand this business about the DEC not participating, what's that all about?" Considering that DEC has a phalanx of staff scientists, Buchanan's response is not much of an answer, but it hints at the divide between the two agencies.

Back in 1994, swords had been drawn over the definition of "deep water marsh." The APA defines those areas as wetlands, and it was seeking a greater depth than DEC's 2 meter [approximately 6 feet] standard, as that would translate into greater jurisdictional control for the APA. The non-profit Lake George Association had joined the fray, its Executive Director Mary-Arthur Beebe arguing to the APA, "You are now going to be taking on a whole new line of work, which is lake management, that is really not your experience." After a few months of spirited debate, the issue vanished without a trace.

When the Sonar proposal surfaced in July 2001, Adirondack Park Local Government Review Board Executive Director Joseph Rota had remarked on this depth measurement disparity between the APA and DEC. "I don't know if that's been resolved," he had said. But he chose not to be an active party at the hearing, feeling it would compromise his ability to participate in the APA board's final deliberations, although the LGRB has no voting power. Had he taken part in the formal examination of testimony, he might have forced the issue of whether the APA even has jurisdiction in the first place, if indeed a deep water marsh more than six feet below a lake's surface can escape APA review.

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