Was the Adirondack Park Agency’s Big Tupper decision fixed? No.

When I was leaving Adirondack Park Agency headquarters last Friday, after commissioners green-lighted the Adirondack Club and Resort on a 10-to-1 vote, green activist Richard Brummel walked over to share his views.

He hadn’t heard the discussion inside — he was picketing outside during the final two days of testimony — but he was convinced of one thing:  the fix was in.

Approval of the Big Tupper resort had been orchestrated in Albany and the process of debate and voting in Ray Brook was window-dressing, a sham.

He pointed to the abrupt departure of APA chair Curt Stiles last summer as evidence that strings were being pulled.

Brummel’s view isn”t unique in the green community.

I’ve spoken to a number of environmentalists who say privately that they think the review process was deliberately skewed at various stages, with APA staff forced to soften or water down their concerns.

A press release issued by Protect the Adirondacks on Friday argued that the “decision has been unduly influenced by enormous pressure from several quarters to do something to try to revive the local economy.”

The APA obviously operates in a politicized atmosphere, facing pressures and influences from all sides.  It would be naive to suggest that big decisions like this happen in a complete vaccuum.

But having covered this process closely, I think speculation about this kind of big fix is off the mark.  Here’s why:

- Critics suggesting that the process was fixed, or skewed unfairly, are making a serious claim about what would amount to illegal activity.  They have yet to offer any evidence to support their claims.

- My (fairly good) sources throughout the APA say this kind of manipulation didn’t happen.  The hearing staff and the executive staff within the Agency concluded that the permit as written could be granted legally.

- My sources also say the APA’s experienced scientists and field staff concluded independently that environmental damage caused by the resort would not be “undue.”  (“Undue adverse impact” is one of the standards for denying a permit.)

- The APA is a pretty leaky ship.  If some kind of fix had been in, or if people suspected that kind of behavior, it’s a safe bet that someone inside the agency would be whispering about it.  So far, no one is.

- The APA permit was voted for by Cecil Wray, a veteran commissioner with deep ties to the environmental community.   Wray is an experienced attorney and has a sterling ethical reputation.  I would need strong evidence to believe that his vote was fixed or unduly influenced by anyone.

- The one commissioner who voted No, Dick Booth, praised the overall process and raised no questions about undue influence or unfairness. Booth is a smart guy, a committed environmentalist, and a close observer of goings-on at the APA.  I have no doubt that he would speak up if he smelled a rat.

- The permit drew support from the Adirondack Council, the Park’s biggest green group, which concluded that the project satisfied APA regulations and would not do undue harm to the environment.  We’re they in on the fix?  Not likely.

- Lani Ulrich, the new APA chair, told NCPR that she received no phone calls, had no conversations, and received no instructions from Cuomo Administration officials or anyone else while the process was underway.  Ulrich is widely respected, even by her critics, as a straight-shooter.

Obviously, it’s fair for critics to argue that APA staff and commissioners got this decision wrong.  We may see that question tested in court.

But an effort to fix the outcome unfairly would have required the collaboration of dozens of people over a period of years, all exposing themselves to significant legal peril.

As I report today, a far more plausible explanation for the environmental community’s defeat on Big Tupper is that they failed to organize effectively and failed to rally around a clear set of legal arguments against the project.

As always, your comments welcome.

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21 Comments on “Was the Adirondack Park Agency’s Big Tupper decision fixed? No.”

  1. Paul says:

    “As I report today, a far more plausible explanation for the environmental community’s defeat on Big Tupper is that they failed to organize effectively and failed to rally around a clear set of legal arguments against the project.”

    Brian, the actual explanation for what you call the “environmental community’s defeat” is that the APA act was followed in this case. Even if they did what you describe above the outcome would have been the same. The only way it could have gone otherwise if there was a “fix” and like you say there was not.

    It is odd to hear environmental groups who have been at times defending the agency from some “conspiracy theories” over the years now suggesting that such a ting is possible?

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  2. Paul says:

    Sorry, last sentence “thing” not “ting”

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  3. Pete Klein says:

    I agree, Brian, and I would add “some people know when to hold them and know when to fold them.”
    Evidently, certain “environmental groups” neither know when to hold nor fold.

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  4. Paul says:

    Brian your story is good. But what could the “green groups” have won? The law was clearly against them. The Adirondack Council saw that. My guess is they said we are going to “lose” based on the law, do we want to completely lose the support of some of the folks in and around Tupper Lake where we may want to do other things in the future (like fight to have Follensby park land designated as Wilderness land)?

    Brian Houseal said:

    “”The environmental community is not of a uniform opinion concerning economic development in the Adirondacks,” he said. “We believe that Tupper Lake does need economic development.”"

    This may be true. But I doubt that the Council thinks that this project will lead to very much economic development in TL. Many people who support the project doubt that it will. So my guess is that their “support” really hinged on the fact that they had the law against them here.

    The other groups arguments that this sets a bad precedent regarding development on Resource Management lands again is now good. It flies in the face of the APA act and precedent that has already been set. The Adirondack Council knew that argument was baseless also, so why bother. Did these other groups strongly oppose the permits for Brandeth Park to build almost 100 single family units on tiny lots on their Resource Management lands??? How could the APA give a permit for that and not for this.

    The last straw was the “wildlife surveys”. The very best they could hope for is a delay to get that done (it is part of the permit now anyway). Everyone knows that this will probably show nothing significant and then you would be back to where we were last week. Again, the Council probably understood that all they would gain there is more anger from project supporters in and around Tupper Lake.

    The bottom line is that these groups need to figure out how to get around one big problem that they now have. When the APA act was drafted and made into law environmental groups strongly supported the act and the restrictions that it placed on private land development in the park. Now they feel that those restrictions are not restrictive enough.

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  5. Kevorka says:

    Go to the Adirondack Almanac website and read Dave Gibsons take on the vote, he gives no indication that Adirondack Wild thinks the vote was fixed.

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  6. Paul says:

    Pete, Your explanation was much better than my long diatribe where I basically said the same thing!

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  7. Brian Mann says:

    Paul –

    The legal questions surrounding this permit are pretty interesting. The reason this is fuzzy is that the language of the Park Agency regulations are fuzzy.

    Green groups may well challenge the APA’s assumptions about how to interpret muddled terms like “undue adverse impact.”

    Also, they may push for clearer legal definitions of whether large-scale projects of this kind are appropriate for resource management-zoned lands.

    (This was a central point in Dick Booth’s thinking, as he decided to vote No on the matter.)

    Some environmentalists I’ve spoken to think they would have a very real chance of prevailing in court.

    But they also acknowledge that these would certainly be tricky legal arguments to make.

    The APA act was left fuzzy by the legislature deliberately, so that commissioners would have a lot of lee-way to interpret the rules based on the facts on the ground in each application.

    In this case, the vote was 10-to-1. A judge would have to find a real legal smoking gun to reverse that kind of decision.

    –Brian, NCPR

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  8. Paul says:

    “The APA act was left fuzzy by the legislature deliberately, so that commissioners would have a lot of lee-way to interpret the rules based on the facts on the ground in each application.”

    This is true. And I think that this decision even if it falls into the fuzzy area was/is clearly defensible from a legal stand point.

    My conclusion above stands. Many environmental groups seem to feel that the current restrictions are not restrictive enough. Why not just come out and say that? Get out of the legal fuzz and state your case. Environmental groups opposed to the project should not have been fighting arguments the could not win (amphibian surveys and other distractions). I even saw a Times Union piece where one environmentalist was trying to argue that this project somehow violated Article 14 of the NYS constitution!

    I think that this matter proves that many feel the laws are far to permissive when it comes to development of private land in the park. They want to see it more protected like the vast amounts of public land in the park. Stop fooling around at the APA and try and get the laws changed if that is what they really want.

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  9. Paul says:

    That “fuzz” also does give these groups plenty of room to bring a lawsuit. The act as written is a lawyers dream come true. A legal scholar could write a whole dissertation on “undue adverse impact” alone.

    If they go for a suit I would guess that they would try and steer around the 10-1 vote and go right at what the staff presented to the commissioners as opposed to the vote itself.

    If this was a town zoning decision the judge would trow it out in a second. But get it into a state court and all bets are off. I hope the APA budgeted on the high side for legal expenses this year.

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  10. Matthew Rogers says:

    The term “no undue adverse impact” is used by numerous local, state and federal agencies. During and after similar large and controversial projects, calls are always made to clarify what that term means. One reason why it is so often used in land use regulations as that it allows the reviewing agency to take into consideration potential adverse impacts and potential positive impacts. A balancing is always necessary on these projects.

    With that said, an analysis of what worked and what did not work in the project review process and what the Agency and others have learned should be conducted. This will undoubtedly help in the Agency’s ongoing evaluation of the Act and Agency policies.

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  11. Walker says:

    I agree wholeheartedly with has been said above. One question: what about the splitting of the permit into, what was it, 14 parts? Sounded like a bad idea in that it apparently killed all phasing requirements and would allow ACR to sell parts of the permit to different developers. Anyone have any light to shed as to A) why it was done, and B) what effect will have on the project?

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  12. Pete Klein says:

    If a couple of environmental groups want to sue, I would say, “Stop and think. Do you really want to be more hated than you already are?”
    There is a long history of “fuzzy law” in this country, going back to the Declaration of Independence and the Bill of Rights. The reason is simple. Times change and so the interpretation of the law needs to change. Sometimes the change is good and sometimes not so good. But one thing is certain. Our system makes it difficult for one small group to run ruff shod over the majority. The small group in this case is two strident environmental groups. They are so past tense I’ve already forgotten their names.

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  13. Will Doolittle says:

    I think the phrase in Dave Gibson’s commentary that was picked up by the Ad’k Almanack headline writer explains why his argument did not carry the day. The headline: “Dave Gibson: 10 votes gave away the park.” Even if you wanted the development defeated, you probably realize this is hyperbole. When you resort to this sort of overstatement, you make your case look weak.

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  14. Paul says:

    Will, the same goes for the writer of the Times Union editorial that suggested that the project might violate the forever wild clause of the sate constitution (which of course has absolutely no bearing on this project). Once you resort to that type of stuff, maybe to try and rally some last minute cries from downstate where this is not well understood, you lose all credibility.

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  15. baffled says:

    Brian Mann, Do you really think Lani Ulrich would have told you if she actually had communication with the governors office? Come on.

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  16. Paul says:

    So baffled do you see any evidence that this was “fixed” in some way? Many of your fellow critics of this agency (me at times) share the feeling that it may not be as independent as it appears at times. First the commissioners are appointed by the governor so right at the get go you could question the independence of the board. But I think here all you have to do is look at the act and other precedents on RM lands they really had to approve the project. They could have delayed it with some further studies but otherwise I think it would have to be permitted whether the governor wanted it or not. If he wanted to cash in any political chips I think it would not be wasted on this.

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  17. Paul says:

    “Brian Mann, Do you really think Lani Ulrich would have told you if she actually had communication with the governors office? Come on.”

    Baffled it sounds like Brian has some kind of “mole” on the inside that is getting us the scoop:

    “My (fairly good) sources throughout the APA say this kind of manipulation didn’t happen. The hearing staff and the executive staff within the Agency concluded that the permit as written could be granted legally.”

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  18. Bob S says:

    Overturning a decision made by a board, agency or commission, especially a 10 to 1 decision, is virtually impossible absent a showing that there was absolutely no evidentiary basis for the decision. Any organization that mounts a legal challenge here is wasting its donors’ contributions.

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  19. Paul says:

    Bob, I agree. That is why I said the only legal strategy would be to show that the staff somehow misled the board.

    This is from Dave Gibson’s commentary at the Almanack:

    “the feeling that our staff are the experts, we trust them and they say this is OK”

    http://www.adirondackalmanack.com/2012/01/dave-gibson-10-votes-gave-away-park.html

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  20. Paul says:

    Please not what I quoted above was Dave’s opinion and not something that was stated by the board.

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  21. Richard Brummel says:

    Brian, the “fix” can be “in” without phone calls and pressure. The decision called for judgement calls. So the judgement calls all went for the approval. No one — from the Legislature or the Executive– stood up and said how important conservation is. And no one stood up for Stiles or against the governor’s appointments. So there was a malign neglect of the issue across the Establishment, including the NY Times, which did not cover it as news, nor in print. I addressed the APA board last April and outlined its failures. All those chickens came home to roost in the vote. It remains that this is an extremely destructive project, inconsistent with the intent of the Act, that was sharply condemned by an eminent scientist, Dr. Michael Klemens, and crtiticized by other scientists in and out of the Agency from what I read. And I certainly agree that the environmental groups failed to rally support for conservation. I had urged a strategy of outreach months ago that was not followed. They, like you, share an Adirondack outlook that is parochial and whimsical. But they are the environment’s best ally there, when all is said and done.

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