RAY BROOK — The applicant proposing a howitzer testing range in the town of Lewis is asking the state Supreme Court to nullify the Adirondack Park Agency board’s decision to hold an adjudicatory hearing for that project.
On Jan. 30, Matthew Norfolk, the attorney for howitzer sponsor Michael Hopmeier, filed a petition with the court alleging that one of the APA’s 11 board members, Rush Holt, had a duty to recuse himself from the vote and the board’s deliberation over the matter, and failed to do so. The matter has been assigned to Lake Placid resident and state Supreme Court Justice Allison McGahay.
Norfolk said he’s challenging the decision because Holt was an Adirondack Council board member from 2022 to 2025. Adirondack Council is an environmental advocacy group that opposes the howitzer proposal, and is one of the adjudicatory hearing parties.
The court petition includes a 2022 letter from the Adirondack Council opposing the project, with Holt’s name appearing on the letterhead as one of its board members. Norfolk said this is a conflict of interest, and created a duty for Holt “to abstain from participating … deliberating and voting in matters related to the application,” and that his participation resulted in the process “being tainted with bias and corruptive influence of the interests of Adirondack Council.”
“Effectively, Mr. Holt has publicly opposed the project and then voted on the future of the application as an APA board member,” Norfolk told the Enterprise. “This is outrageous. It is unlawful.”
Adirondack Council Executive Director Raul “Rocci” Aguirre said in a statement that Norfolk’s petition is “light on facts,” and believes it is “unlikely to succeed” in court.
“After a brief review of the filing, it appears clear that Mr. Norfolk’s goals are aimed at distracting from a full and public review of the project through an APA adjudicatory hearing,” he said. “In contrast, the Council seeks a full and complete record that ensures the APA and the public clearly understand what is proposed in the application and the impacts to the greater Lewis community and ecological health and wild character of the Adirondack Park. That has been our goal since the beginning of this process and remains moving forward.”
An adjudicatory hearing is the only procedural avenue through which the APA can deny or substantially modify a project once its application is deemed complete. It may also vote to approve the project after the hearing.
Asked for comment by the APA and Holt, agency spokesman Keith McKeever said the APA does not comment on pending litigation.
None of the other 10 board members appeared to have cited Holt’s remarks during the deliberations or at any other point in the lead-up to the vote as a reason for their individual decisions. The Nov. 14 vote to send the project to an adjudicatory hearing was unanimous, and it does not appear that Holt’s recusal, as a counterfactual, would have changed the outcome.
Sending the project to an adjudicatory hearing required a simple majority by the board, and agency staff had recommended the board vote to do so, although board members were not obligated to follow that.
Norfolk, though, cited a 1995 informal opinion from the state Attorney General’s office — akin to a best practices advisory as opposed to a formal legal order or case law — warning that the mere presence of a board member at a meeting has the potential to influence others, whether or not anything was said to that effect. The office advised that if there’s a conflict of interest, that board member should not sit with the rest of the board during any deliberations or actions on the matter.
“As a member or designee of the Regulatory Programs committee, Mr. Holt was present during APA staff’s presentation of the project, deliberated with the other members of the committee and voted to recommend to the full agency board that the project application be decided through a public hearing proceeding,” Norfolk wrote in an email. “His participation in deliberations and voting as a member or designee of the Regulatory Programs Committee to recommend a public hearing certainly influenced the other members of the Regulatory Programs Committee and undoubtedly influenced the other board members not on the committee when it came to a full agency board vote.”
Norfolk added that since the full 11-member board relies on recommendations from its committees, he felt that Holt’s affirmative vote on the regulatory committee constituted an influence on other members. Norfolk said Holt should have not participated, both in the committee and full board discussions and votes.
“He should have not even been in the meeting room when my client’s project was presented by APA staff, when there were deliberations and when there was a vote by the Regulatory Programs Committee and the full Agency Board,” Norfolk continued. “He should have went across the street and had a coffee at Maplefields. Mr. Holt and the APA screwed up.”
Norfolk’s petition seeks to initiate an Article 78 proceeding, a special type of lawsuit used to challenge decisions, actions or inactions of New York state or local governments, agencies and their staff. Presumably, it’d be the same mechanism for the losing hearing party or parties to appeal the APA board’s howitzer decision following the hearing.
But that’s still a long way off, and would of course hinge on the hearing occurring. If Norfolk’s petition here were to be successful and the state Supreme Court were to annul the APA board’s vote, it’s unclear what would come next, and whether the APA would re-vote on whether the project should be sent to an adjudicatory hearing.
Holt wasn’t the only thrust of Norfolk’s petition. He also alleged that the APA, presumably through its counsel and staff, had an obligation to advise or otherwise require Holt not to participate in the matters related to the adjudicatory hearing. By failing to do so, Norfolk alleged that the APA “breached its ethical and lawful duty,” adding that was further sullied when the agency took “affirmative steps to implement the hearing determination passed with the involvement and vote of a member with a clear conflict of interest,” referring to Holt.
The petition also appeals APA Executive Director Barbara Rice’s denial of Norfolk’s challenge to disqualify the administrative law judge overseeing the hearing, David Greenwood. Norfolk previously argued that Greenwood’s employment with the Adirondack Council as a policy analyst from 1993 to 2000 constituted a bias, conflict of interest and an appearance of impropriety.
“It is undisputed, however, that that relationship ended 26 years ago and 22 years before comments were issued on the project by the Adirondack Council,” Rice wrote in her ruling. “No facts have been alleged that support that ALJ Greenwood’s prior employment would have informed the comments submitted by the Adirondack Council 22 years later; nor any facts concerning current membership, an ongoing employment relationship, or any other personal, professional or pecuniary relationship with the Adirondack Council or any other party.”
Norfolk said this is arbitrary and capricious — one of the legal standards that can form the basis of an Article 78 challenge for the court to consider — as he alleged “there is nothing in the record providing grounds for Director Rice’s finding,” and that the only reason it was denied was that Norfolk did not submit enough evidence to find a conflict of interest.
Norfolk contended that he put forth all he could.
“As no discovery is available (we are) limited to publicly available information on the hearing officer, which shows that he was an officer and employee of Adirondack Council,” Norfolk wrote in his petition. “Upon presentation of this evidence, the APA should have shifted the burden to the hearing officer to rebut a presumption of conflict, or at the very least, have him put on the record that he does not have an affiliation or membership with Adirondack Council.”
Norfolk requested McGahay immediately stay all proceedings related to the adjudicatory hearing, including the several pre-hearing motions currently before Greenwood. She declined to do so — at least until she’s had a chance to hear from Rice, Holt and Greenwood — whom McGahay scheduled to appear before her in-person at the Essex County Courthouse in Elizabethtown at 11 a.m. on Feb. 20. McGahay further ordered that any answering/opposition papers be served to all parties by Feb. 18. She wrote that after hearing from them, she would rule on what, if any, relief the court will issue in regards to Norfolk’s petition.
NORFOLK DISQUALIFICATION CHALLENGE
One of the myriad of matters currently before Greenwood, as the hearing officer, is a motion made by the attorneys representing Adirondack Council that Norfolk be disqualified and removed as Hopmeier’s counsel from the adjudicatory hearing.
That motion alleges that Norfolk has not produced evidence indicating his firm followed the required processes meant to safeguard against conflicts of interest in representing the howitzer sponsor.
The alleged potential conflict stems from Norfolk’s firm hiring attorney Sarah Reynolds in mid-May. Reynolds had previously worked as an associate counsel for the APA and had been involved with the agency’s handling of the project sponsor’s application. Reynolds left Norfolk’s firm in mid-December. Norfolk said that was for personal reasons and was unrelated to the howitzer case.
Adirondack Council, in its motion for disqualification, did not allege that Reynolds was “involved” in the case while working for Norfolk Beier, but stated that there was potential for that, and furthermore that the firm’s apparent failure to seek the required waivers was enough to warrant its disqualification, even if Reynolds has subsequently left.
More on that motion is available at tinyurl.com/4yk863nr.
Greenwood gave the parties until Feb. 3 to submit arguments for or against Norfolk’s disqualification. Norfolk submitted a seven-point objection. His first argument that the power to disqualify an attorney rests with the state courts, not Greenwood as an executive-branch hearing officer.
His other points center around what he argues is a lack of standing, an objection window on these grounds by the APA having passed, a claim that removing him as an attorney would unfairly harm Hopmeier given how far along in litigation the case has progressed, an assertion that Reynolds and his firm never acted improperly and that it’s a moot point since Reynolds is no longer with the firm.
Adirondack Council’s challenge, though, said that Reynold’s subsequent departure is irrelevant, since her tenure overlapped with the case any, as it alleges is possible, prejudicial information Norfolk may have gained would still be at his disposal as the case plays out. Norfolk adamantly denied this in his Feb. 3 objection, stating that he implemented a “firm policy” upon her hiring that she would not be involved in the case in any way.
Attorney Paul Van Cott, on behalf of Adirondack Council, asserted that more proof is needed than Norfolk merely saying so. In a Jan. 27 letter to the APA, Van Cott wrote that “documented proof of compliance” is needed to, in part, remedy this concern.
“Only through such documented compliance by Norfolk Beier PLLC and by APA’s affirmatively consenting to the firm’s continued representation of the applicant in this matter can the firm’s noncompliance with Rule 1.11 (the relevant attorney professional conduct state code) now be potentially resolved,” he wrote. “We do not take this position lightly and fully appreciate the implications for the applicant of Norfolk Beier PLLC’s disqualification and the unnecessary burden placed on APA but cannot take the risk that the hearing will be prejudiced by this conflict.”
Van Cott’s letter is available in its entirety at tinyurl.com/2vzs2ez7.
Norfolk in his Feb. 3 objection further countered that, even though he said Reynolds had no involvement in the matter during her employment with Norfolk Beier, whatever information she could have had would not have been prejudicial.
“Any information Attorney Reynolds obtained during her time at the APA would also be known to the APA and, therefore, could not have been given to Norfolk Beier for their exclusive use to provide some sort of advantage,” Norfolk wrote. “Indeed, there is no advantage to be had. Moreover, the APA is not an adversary of the applicants. Attorney Reynolds’ employment at Norfolk Beier cannot possibly prejudice any party in its efforts to collectively develop a factual record.”
Norfolk further rebuked the Jan. 27 letter.
“Adirondack Council, by asserting that Norfolk Beier ‘may have gained or may gain factual, legal or other information from Ms. Reynolds, either directly or indirectly, based upon her prior involvement in APA staff’s review of this matter during her tenure as an APA attorney’ implies the corruption of Attorney Reynolds, the APA and myself” he wrote. “Personally, and on behalf of the applicants, I object to Attorney Paul Van Cott’s implication here.”
Greenwood said he would endeavor to rule on Norfolk’s disqualification by Feb. 10. Given McGahay’s refusal to stay all proceedings, Greenwood could still issue this ruling, though it’s unclear if the subsequent Article 78 proceeding by Norfolk, and impending hearing before McGahay, would lead the administrative law judge to delay this disqualification ruling.
The adjudicatory hearing is still scheduled to begin at 10 a.m. on Feb. 25 at the APA’s Ray Brook headquarters. However, it’s unclear in light of the pending legal challenges if this date will hold. If it does, the public may either attend in person or watch remotely. It’s also unclear whether public comment will be allowed if it takes place.
For more information from the APA on the howitzer proposal and the various exchanges between the parties that comprise the hearing record so far, visit tinyurl.com/mpdramry.