RAY BROOK — The legal battle over a proposed howitzer artillery cannon testing range in the town of Lewis appears to be heating up.
The attorney for the project’s applicant is asking the administrative law judge (ALJ), who would oversee the project’s upcoming adjudicatory hearing, to recuse himself, citing his employment with the Adirondack Council, which ended 25 years ago.
In a Monday letter sent to the Adirondack Park Agency, which is holding the hearing, ALJ David Greenwood did not appear to have any plans to do so, writing that he has ensured that he has “no current or recent professional or financial connections that might raise an issue of bias or other disqualification.”
Matthew D. Norfolk, the attorney representing Michael C. Hopmeier — the project’s sponsor and a principal of Unconventional Concepts, Inc. — cited Greenwood’s seven years of employment with the Adirondack Council as the primary — and at this point, sole — reason for the request. The Adirondack Council is a conservation and environmental advocacy group that is stridently opposed to the howitzer testing range.
Greenwood worked as a policy analyst for the Adirondack Council from 1993 to 2000, according to a LinkedIn page bearing his name. This was before he attended Albany Law School, where Greenwood graduated in 2003. He’s been employed with the state Department of Environmental Conservation since 2008, working as a senior attorney for the department until May 2024, when he became a DEC ALJ.
Though it’s the APA, and not the DEC, tasked with deciding on Hopmeier’s application, the APA is “borrowing” an ALJ from the DEC, as it does not have any on its own staff role. That’s partially because the APA holds adjudicatory hearings on an infrequent basis. The last one took place in 2011. These sorts of enforcement hearings occur more regularly within the DEC, though notably, the APA Deputy Director for Regulatory Programs John Burth said at the APA’s November meeting that the DEC does not need to issue any permits for the howitzer testing range to be approved — just the APA.
An ALJ’s role
An ALJ serves as the hearing officer in the APA’s adjudicatory hearing, also known as a “project hearing.” They do not decide if a project is approved or denied, that ruling rests with the APA’s 11-member board.
The ALJ does, however, play an important role in the process, overseeing the hearing itself and ultimately issuing a hearing report upon request for the APA board to consider in its decision.
The ALJ has broad authority to control and maintain the efficiency of the hearing under the APA’s hearing process rules. This includes presiding over the hearing, managing pre-hearing procedures and conferences, ruling on which individuals or organizations are granted party or intervener status for the hearing and determining which issues will be heard. This could include both those identified by the APA board and any additional ones the ALJ deems relevant.
During the hearing, the ALJ oversees that witness and evidence presentations are done properly, and makes rulings on such admissions. Evidence can include documents, photos, maps or other exhibits. The ALJ oversees direct examination of the witnesses and subsequent cross-examination.
An ALJ’s ruling may be appealed to the APA Board at the end of the hearing by motion of a party or as part of a closing statement, according to the APA’s webpage on adjudicatory hearings.
“The APA Board may also decide to review an ALJ ruling during the hearing where the failure to decide an appeal immediately would unduly disadvantage one of the parties or would result in significant inefficiency in the hearing process,” the webpage adds. “If the APA Board decides to hear the appeal, all parties will have an opportunity to be heard on whether the appeal should be granted or denied. The hearing will continue, unless the ALJ or the APA Board adjourns it, until the appeal is decided.”
Hearing details emerge
Greenwood was formally appointed as the hearing’s ALJ by APA Director Barbara Rice in a Nov. 20 letter cc’d to Norfolk, APA General Counsel Damion K. L. Stodola and Michele M. Stefanucci, the DEC’s Chief ALJ. Rice added that the APA tentatively planned on starting the hearing at 9 a.m. on Dec. 22, though the date could be subject to change after the hearing parties have conferred.
Under state law, the APA has 90 days to “commence” an adjudicatory hearing from when the project’s application was deemed complete. That deadline is Dec. 25, as Hopmeier’s application was recorded as complete on Sept. 24.
The Adirondack Park Agency Act, the relevant state law governing the hearing procedures, adds that the timeline may be “waived and extended for good cause” if the project sponsor and APA agree to it. Norfolk told the Enterprise on Monday that he would likely seek to push back the hearing until after the holidays, because of scheduling difficulties.
Rice added in the letter that the APA planned for the hearing to take place in its Ray Brook headquarters.
On Nov. 24, Norfolk wrote to Greenwood, asking that he voluntarily recuse himself.
“For seven years you were employed by the Adirondack Council,” Norfolk wrote. “Your affiliation with the Adirondack Council disqualifies you as the hearing officer. The Adirondack Council has taken an official position against the approval of the project.”
Norfolk included several examples of the Adirondack Council’s opposition to the testing range in his letter, though there was no evidence of Greenwood himself demonstrating bias for or against the project. Greenwood’s employment with the group ended about 22 years before the Adirondack Council first publicly opposed the project. Norfolk, however, stated in his letter that past employment with the group was a cause for concern.
“(T)here is implicit bias and undoubtedly an appearance of impropriety arising out of a former employee of the Adirondack Council acting as the hearing officer in an APA public hearing involving a project the Adirondack Council adamantly opposes.”
Norfolk added that Greenwood’s appointment caused him to question the integrity of the APA in its selection of him as the hearing’s ALJ.
On Nov. 26, Rice wrote back to Norfolk, stating that his letter was an improper way to challenge the ALJ’s appointment, citing 9 CRR-NY 580.8, which governs the APA’s selection of a hearing officer. That law can be read in its entirety at tinyurl.com/4v47ba9e.
Nonetheless, Rice said she considered Norfolk’s letter a challenge to Greenwood’s appointment as allowed under section 580.8, and gave Norfolk until 3 p.m. on Friday, Nov. 28 to submit any “additional materials” that could give reason to disqualify Greenwood. She gave Greenwood until 3 p.m. Monday, Dec. 1 to file any “responding affidavits” to Norfolk’s challenge.
Rice noted that Norfolk failed to cite any “applicable judicial standards” that would require his disqualification based on his former employment with the Adirondack Council. Norfolk responded to that in a letter to Rice stating that he “will not waste his clients’ financial resources citing ethical standards ALJ Greenwood must follow,” and that APA attorneys could provide Rice with those if needed.
Rice appeared skeptical of Norfolk’s reason for recusal in her Nov. 26 letter.
“Even accepting your unsworn statements as true, they do not appear to identify a disqualifying connection or relationship to the Adirondack Council’s public comments on the project, nor any fact upon which to suggest that Judge Greenwood was involved in the Council’s submissions to the Agency about the project,” she wrote. “Without more, prior employment with an organization that has taken a position — one way or the other — on an adjudicatory hearing would appear insufficient to create an appearance of bias.
“Your letter also does not seem to include any specific information that challenges Judge Greenwood’s impartiality,” Rice added.
She concluded her letter by writing that she would make a decision after receiving any responding affidavits from Greenwood.
Later on Nov. 26, Norfolk wrote back to Rice, stating that he was writing directly to Greenwood, and while she was copied on the letter, he was expecting a reply from Greenwood.
“I had no obligation to even copy you on the letter,” he wrote. “ALJ Greenwood has been directly asked to recuse himself. He is the one that my clients and I expect to respond to the request for his recusal. ALJ Greenwood has an independent duty as an administrative law judge and attorney to assess whether he should recuse himself.”
Norfolk added that his request is not, and should not be mistaken as a formal challenge pursuant to 9 CRR-NY 580.8 or the state Administrative Procedures Act Section (SAPA) 303. He admonished Rice for interpreting his previous letter as such.
“Indeed, I have not filed a challenge or application of any kind to date, nor do I wish to do so at the moment,” he wrote. “You have no authority to convert my request to ALJ Greenwood to voluntarily recuse himself to a challenge pursuant to 9 NYCRR Section 580.8 or SAPA Section 303, or otherwise. You cannot compel me to file challenges and other applications of any kind. That would be unlawful, as is the case now. Accordingly, I object to your attempt to do so and repeat that I have not filed a challenge on my clients’ behalf.”
Norfolk added that he planned to wait to make any formal challenge until after Greenwood submitted a full disclosure for the record of all information that he deems relevant to the issue of bias or other disqualification, pursuant to 9 NYCRR Section 580.8(a). He added that it would be a “stupid” move for him to file a challenge before Greenwood made his full disclosure under 580.8(a).
He added that 580.8(b) does not require a challenge in order to initiate a pre-hearing conference to attempt to remedy the matter. Norfolk added that under this, “parties shall be given sufficient opportunity to challenge” the hearing officer’s designation. He wrote that Rice’s timeline laid out in her previous letter did not allow that.
“For you to direct me to submit papers in support of a challenge, notably which I did not file, in just two days, one of which is Thanksgiving, is absurd,” he wrote. “It is an abuse of discretion, seriously prejudices my clients, demonstrates a bias in general, and gives the appearance that you are punishing my clients for requesting ALJ Greenwood voluntarily recuse himself, or perhaps, for filing the application for an APA permit in the first place. I am certain the NYS Supreme Court would agree with me on all fronts.”
Norfolk told the Enterprise on Monday that he had not received any further correspondence from Rice or the APA since that letter.
Greenwood responds
On Monday, Greenwood wrote to Rice, stating that his letter’s intent was to make full disclosure of all information relevant to the issue of bias or disqualification. He was confident that he could oversee the hearing impartially and without any bias to any current or future party.
“Prior to accepting the appointment as hearing officer in this matter I ensured that I had no professional or financial connection with Michael Hopmeier, Unconventional Concepts, Inc., Diversified Upstate Enterprises, LLC, Pulsifier Logging, LLC and James Pulsifier and determined that there was no issue of bias or other disqualification pursuant to 9 NYCRR 580.8 of the (Adirondack Park) Agency Regulations,” he wrote. “Additionally, I considered potential parties or intervenors to the Agency’s hearing on the project application and ensured that I have no current or recent professional or financial connections that might raise an issue of bias or other disqualification.”
The APA has yet to publicly announce Greenwood as the hearing officer as of press time Monday evening. It’s unclear when the agency will do so.
Project overview
The APA board voted unanimously at its Nov. 14 meeting to send Hopmeier’s application to an adjudicatory hearing. The move followed the APA staff’s recommendation, citing potential concerns for undue adverse environmental impacts and what they said were unanswered questions about several key aspects of the project — questions that could be teased out during an adjudicatory hearing, ultimately allowing the APA board to make a more informed decision.
The project proposes that a portable 155 mm howitzer assembly barrel be placed on a 100-foot by 100-foot crushed gravel pad to fire steel projectiles into a target area. When not in use, the equipment would be stored in a nearby enclosed structure at 87 Hale Hill Lane, which the project applicant owns and is equipped with surveillance and security systems.
The portable equipment includes the gun system, instrumentation trailers, field repair and maintenance systems and a mobile power supply. The projectiles for testing, if the project is approved, would be believed to be supplied to the location by the U.S. military, according to Burth. He said this is based on conversations between the APA and Hopmeier, though Burth said the APA did not know any further details of the potential supply arrangement.
The proposal calls for the assembly to be fired up to 30 times per year on weekdays, between 10 a.m. and 4 p.m. The proposal prescribes a maximum of two shots per day, over no more than three consecutive days at a time. The proposal does not place any seasonal restrictions on the testing. The testing is proposed for a period of five years.
The projectiles are proposed to be stopped by an 8-foot by 8-foot by 40-foot-long metal shipping container, or similar structure, filled with sand and other material. The catching system would sit 675 feet from the cannon. No explosive warheads are proposed to be fired.
The Lewis town government will be notified of the testing schedule seven days in advance, according to the proposal. It adds that all landowners within a 2-mile radius of the testing site would be notified by mail seven days in advance.
An adjudicatory hearing gives the project’s applicant, APA staff, landowners and local governments within 500 feet of the proposed project site, any state agency and other parties to the hearing an opportunity to present evidence and to argue contested issues before an impartial hearing officer, according to a statement from the APA Public Information Director Keith McKeever.
Adjudicatory hearings are the only way the APA board can deny or substantially modify a permit that is considered complete. The burden of proof during the hearing rests with the project applicant. APA board’s final decision on the matter can be appealed to the state Supreme Court.