The last couple of weeks, editorial writers, local elected officials and even some environmentalists in the North Country have chastised green groups and Tupper Lake seasonal residents for suing the Adirondack Park Agency, in an effort to overturn the permits green-lighting the Big Tupper resort project.
The suit has been described variously as cynical, frivolous, arrogant and as a downright cold-hearted blow to Tupper Lakers who are trying to revive their battered economy.
Let me say that I have absolutely no opinion about the ultimate legal merits of the suit.
I don’t know how the case will be decided, though most of my sources have suggested that the court will likely give a lot of deference to the Park Agency, given the lengthy review and the lopsided vote by commissioners in favor of the permits.
But I think it’s worth noting that Article 78 lawsuits of this kind can play a valuable — indeed, a crucial — long-term role in shaping how government agencies in New York state and the North Country conduct their business.
Here are three reasons why this court case is a legitimate step in the Big Tupper review process.
Claims of secret talks
First, green groups have raised a specific allegation that state officials colluded unfairly with the developers of the resort, violating strict “ex parte” rules that were designed to limit undue influence over the process.
The APA and the developers deny this vehemently, but it’s a serious claim.
In the past, pro-development and local government groups have raised similar allegations about unfair conversations and backroom deals between the state and green groups.
The Adirondack Park Local Government Review Board’s Fred Monroe successfully urged the state Attorney General’s office to probe claims that the DEC, the APA and the Adirondack Nature Conservancy were hammering out “sweetheart” land deals behind closed doors.
The AG’s office looked into the matter and found nothing untoward or inappropriate.
It may well be that these allegations regarding the ACR decision, raised by environmentalists, will be discounted by the courts in similar fashion.
But if one side in the Park’s debates wants its concerns about secret talks and unfair treatment to be taken seriously, it stands to reason that the other side should also get some attention when it raises the alarm.
A lawsuit or a rallying cry?
Critics of the lawsuit have suggested that the court fight is being used by environmental groups — specifically by Protect the Adirondacks — as a way to raise public awareness, build membership, and raise money.
The Adirondack Daily Enterprise argued in an editorial that Protect the Adirondacks had “ulterior motives.”
I can confirm this. I asked the suit’s backers this question point-blank and prominent activists, including Bob Glennon, acknowledged openly that they hope attention attracted by litigation will mobilize new support for their cause, particularly outside the Adirondacks.
Cynical? Maybe. But there’s nothing new in this. All sides in the Park’s debate have used litigation, and the legal process, as a way to draw attention to their concerns and agendas.
Essex farmer Sandy Lewis made a lengthy legal battle with the APA the centerpiece of his campaign to highlight what he considered bureaucratic overreach by New York state.
Lewis — and his supporters — appeared repeatedly on an Albany AM talk radio station, portraying the legal dust-up as part of a much wider fight for property rights and Park reform.
Lake Placid snowmobile activist Jim McCulley waged a similar legal-p0litical-public-relations fight against the DEC’s management of Park trails.
Now some green activists are doing exactly the same.
Which doesn’t mean that groups like Protect don’t also believe that their case has legal merit. After conversations with the attorneys who filed the suit, I came away convinced that they believe that they are in the right and will prevail.
Defining the terms of engagement
Finally, the Lewis and McCulley cases highlight another potential value of court cases like this one.
Legal battles often clarify the terms of fuzzily written state regulations.
In Lewis’s case, state officials were given clear new parameters by the courts, with a judge confirming that the APA has very little oversight over farm-related projects.
Other recent lawsuits in the Adirondacks have helped to clarify a wide range of issues, from navigation rights on rivers, to the legal status of lake- and river-bottoms adjacent to state-owned forest preserve, to DEC management of state-owned roads in the Park.
It may be that in this case will do the same, offering, new legal insight into sketchy and ambiguous terms in Park regulations that have baffled all sides in the debate for decades.
What exactly does “clustered” development mean? Is it appropriate (or not) to consider the potential financial benefits of a project when evaluating whether the impacts of new construction on the environment are “undue”?
Was it possible to conclude scientifically that there would be no “undue adverse impacts” from a project of this size and complexity without doing some kind of comprehensive wildlife survey?
Hopefully, this suit will serve to shed some light on those questions.
It’s far from certain, of course, that any new legal precedents will be to the liking of the environmentalists and neighbors who brought this lawsuit.
On the contrary, a final ruling in this case could well go the other way, confirming the APA’s current approach to residential development on the Park’s privately-owned timberland — an approach that pro-development forces favor.
All of this will be cold comfort to Tupper Lakers exhausted by years of uncertainty. Supporters want this project to move forward as quickly as possible.
And hopefully the court’s review will be expeditious. But unpopular as it is, this stage of the Big Tupper process may well serve the long-term interests of the Park and its communities.