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1993 Environmental Protection Fund Act Gave Towns Veto Power
Black Brook Wins First Round in Fight to Block Land Acquisition
DEC Claims Right to Circumvent Town Veto

The Clinton County Supreme Court has just nixed the State Department of Environmental Conservation's first move in its effort to defeat the Town of Black Brook's veto of state acquisition of International Paper Co. lands within the town's bounds. The lands are part of the state's record largest acquisition of private land. Then-governor George E. Pataki announced the "historic agreement" to acquire the 250,000 acres of land in the Adirondacks from the company on Earth Day 2004.

The veto right at issue was established back in 1993, when the legislature set up a funding source for land acquisition by passing the Environmental Protection Fund Act. To secure bipartisan support for the controversial measure, a compromise was hammered out with the late Senator Ronald Stafford (R, Plattsburgh) that allowed local towns the power of veto over any proposed acquisitions within their bounds. In March 2007, the Town of Black Brook in Essex County passed a resolution to veto the state's acquisition of the International Paper lands within the town's borders.

In the past, the Department of Environmental Conservation (DEC) had failed to follow the various rules related to the local veto power. For instance, under 1996 Bond Act and the 1993 Environmental Protection Fund under which funding was possible at the time of acquisition of the 139,000-acre Champion International lands in the Adirondacks in 1999 (like the International Paper lands, in fee simple and conservation easements), the state ignored the veto power. At that time, a group organized by this writer sued to stop the acquisition on this and other grounds. Although the lawsuit was tossed out for a technicality of service, it created adverse publicity for DEC. Afterwards DEC began to follow the rules related to the local veto power. The towns also began to assert the veto power with confidence. For instance, in May 2001 the Altamont Town Board, meeting in Tupper Lake in Franklin County, successfully vetoed DEC's acquisition of the 2,800 acres of land owned by the Oval Dish Corporation within its borders.

The Environmental Protection Fund was the only source of funds for land acquisition for the Forest Preserve that was still in effect when the International Paper (IP) acquisition was executed. Because of its concern about this statute's provision for local veto power, DEC officials traveled from town to town to gain support for acquisition of the IP lands within each jurisdiction.

However, in the end, the DEC did not tolerate the veto by the Town of Black Brook and devised a way to try to circumvent the town's power. Instead of using funds from the Environmental Protection Fund to acquire the 15,000 acres of IP land within the town, the DEC apparently used funds from the Empire State Development Corporation and the Mellon Foundation (which once founded the Conservation Fund, the entity that initially acquired the vast Champion lands and divided the style of ownership).

In June 2007, the Town of Black Brook went to court to assert its veto power. Town Councilman Howard Aubin of Ausable Forks, who had been the lead plaintiff in the Champion lawsuit, joined as a plaintiff.

On April 21, 2008, Acting Supreme Court Justice Patrick R. McGill issued a five-page decision rejecting the state's motion to dismiss. The justice stated, "[T]he defendants have failed to respond to the arguments made by the plaintiffs...It is apparent that no specific appropriation was ultimately issued for the funds used for the acquisition…"

The justice held, "[T]here is no law offered in support of the…proposition of the defendants, that if funding is from another source the veto is ineffective. The statute itself is entirely silent in regard to the defendants' interpretation."
"This is a victory for local government in a day when local government's authority and control is quickly eroding," remarked James E. Morgan of Delmar, attorney for the town, several days after the court decision.

The next action in the litigation is the court-ordered joinder of Lyme Adirondack Timberlands I, LLC, the current title owner of the lands subject of the proceeding.

Carol W. LaGrasse, April 30, 2008

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© 2008 Carol W. LaGrasse
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