McCulley claims collusion between DEC, green groups

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September 21, 2009

By KIM SMITH DEDAM The Press Republican Mon Sep 21, 2009, 10:31 AM EDT

LAKE PLACID — Attorney General Andrew M. Cuomo is being asked to investigate back-room correspondence between the Department of Environmental Conservation and three environmental groups.

Under Freedom of Information Law, James McCulley obtained more than a dozen e-mails sent after the Old Mountain Road decision May 19 from various DEC officials to the Adirondack Council, Adirondack Mountain Club and Association for the Protection of the Adirondacks.

Between the end of May and early July, the e-mails plot legal reaction to DEC Commissioner Alexander Grannis’s decision, which found the Old Mountain Road between Keene and North Elba to be town-owned property through state land.

The Adirondack Council and the Adirondack Park Agency have asked Grannis to revisit the case.

‘CLOSE ALLIANCE’

McCulley’s attorney, Matthew Norfolk, says the e-mails show clear violations of state “ex parte” law, ordering employees of an agency not to “communicate, directly or indirectly” on any issue of law unless all parties participate.

“DEC has developed a close alliance with various environmental groups and, in reality, has morphed into a state-sponsored environmental advocacy organization funded by the taxpayers of the state of New York,” Norfolk wrote in a motion sent to Grannis and Cuomo.

The allegedly illegal correspondence played out in e-mails from DEC to environmental directors Dave Gibson of the Association, Neil Woodworth of Adirondack Mountain Club and Marc Gerstman, Adirondack Council attorney.

E-MAIL EXCHANGES

Some examples of the e-mails:

E May 29: DEC attorney Charles Sullivan, chief DEC counsel for McCulley’s hearing two years ago, sent Gerstman copies of DEC briefs on the case.

E June 10: Gerstman e-mailed DEC Region 6 Director Judy Drabicki saying he had reviewed DEC’s legal motion asking Grannis to reconsider.

“The motion persuasively makes the case to reopen the commissioner’s decision,” the e-mail said.

E June 10: DEC attorney Christopher Amato sent Gibson and Woodworth a PDF copy of the DEC staff’s motion.

E June 11: Amato sent Gibson and Woodworth an update: “Please see attached, in which (Office of Hearings and Mediation Services) gives McCulley until July 3 to respond to staff’s motion.”

E June 12: Gibson replied, asking to be kept apprised, “particularly with regard to opportunities to participate in the briefings.”

E June 26: DEC Deputy Commissioner and General Counsel Alison Crocker sent Gerstman an e-mail that said, “Hopefully you have caught up with Ken (Hamm) and are aware that the Dept. (DEC) will not oppose a motion to intervene.”

Three days later, Gerstman filed a motion to intervene for the Adirondack Council.

In essence, every e-mail concerns the Old Mountain Road decision in McCulley’s case.

REGULAR CONTACT

In an interview Friday, the Adirondack Council Executive Director Brian Houseal said the correspondence was not illegal.

“We contact state agencies all the time. It’s part of the public-participation process. When there are ex parte rules, we follow them. Since we filed a motion to intervene, we’ve had no communication on this particular case with DEC.”

Gibson and Woodworth did not answer calls seeking comment.

COLLUSION CLAIMED

But McCulley called their e-mails collusion in violation of his civil rights.

“DEC is prosecuting me not based on law or facts but based on what their friends in the environmental community want. This is why, when the public comes 80 or 90 percent against some new regulation in the park, the environmentalists still win.”

Norfolk has asked Grannis to recuse himself from the case.

DEC spokesman Yancey Roy said Grannis would not speak to McCulley’s claim.

“Yes, Mr. McCulley has sent in a letter to further support his submission on the recusal, feeling there was inappropriate communication between DEC and other groups. All of it will be considered toward a final decision.”

There is no time frame for any decision from Grannis about whether to revisit the case. But the Town of Keene, under the directive of jurisdiction, is bringing the issue of motorized use on Old Mountain Road to public-referendum vote in the November election.

McCulley’s case set precedent potentially affecting hundreds of miles of roads closed under the APA Act throughout the Adirondack Park.

E-mail Kim Smith Dedam at:

kdedam@pressrepublican.com