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Judge finds it 'plausible' that APA, Adirondack Council conspired

Lets Leroy Douglas case go to trial

September 12, 2012
By CHRIS KNIGHT - Senior Staff Writer (cknight@adirondackdailyenterprise.com) , Adirondack Daily Enterprise

A federal judge has stripped much of the meat from Leroy Douglas' multi-million-dollar lawsuit against the Adirondack Park Agency and the Adirondack Council, but he left enough for the case to proceed to trial, including Douglas' claim that the state agency and the environmental advocacy group conspired to reopen an enforcement case against him.

U.S. District Judge Glenn T. Suddaby, in a detailed, 121-page ruling filed Tuesday in Syracuse, said the lawsuit alleges facts "plausibly suggesting that the (Adirondack Council) defendants and the APA defendants reached a meeting of the minds as to what actions to take against (Douglas)."

Douglas filed the suit in March 2010, seeking more than $67 million, plus punitive damages and attorney fees.

The case centers on an enforcement action the APA pursued against Douglas for filling in wetlands on his Silver Lake property to widen an existing road. The violations were resolved by a 2006 settlement agreement, but Douglas claims the Council and Brian Ruder, then-chairman of the group's board of directors and a neighbor of Douglas on Silver Lake, worked in concert with the APA to reopen the enforcement case against him in 2007.

Douglas claims the Council was pushing the APA to take action to stop his development plans and force Douglas to sell his lakefront property, which has been listed in the state's Open Space Conservation Plan, to the state or The Nature Conservancy.

In ruling on the Council's motion to dismiss the lawsuit, Suddaby found Douglas' complaint "alleges facts plausibly suggesting that the actions agreed-upon by the (Adirondack Council) defendants and APA defendants included the opening of a new enforcement proceeding against (Douglas) notwithstanding the settlement of a previous such enforcement proceeding." Specifically, the judge refers to allegations that Ruder and APA employee Doug Miller had a phone conversation, which Ruder later summarized in a lengthy email message to Miller, that spelled out a plan of action for the agency to take against Douglas, including offers from Ruder to provide legal assistance to the APA.

The Council has said its communications with the agency are "within the stated purpose of the organization and are protected speech and petitioning of government," but Suddaby found the allegations "plausibly" suggest that the Council was acting under the color of state law.

"The reporting of potential regulatory violations to the government, and/or urging the government to enforce its regulations, does not, in and of itself, constitute state action. Moreover, the giving of legal advice to the government does not, in and of itself, constitute state action," the judge wrote. "However, here, plaintiffs have alleged something more. Plaintiffs have alleged (albeit barely) facts plausibly suggesting that the (Council) defendants reached an agreement with the APA defendants to violate plaintiffs' constitutional rights and committed an over(t) act in furtherance of that goal, crossing the line from private entity to state actor."

The Council had also argued that it was protected from liability by state civil rights laws and by the Noerr-Pennington doctrine, which provides immunity to private entities that try to influence the passage or enforcement of laws. But the judge rejected both of those defenses, finding that "based on the facts alleged in (Douglas') complaint, the (Adirondack Council) defendants' conduct led to public official misconduct or an unconstitutional result, and/or the petitioning involved unlawful corrupt or unethical means (e.g., a directive to the APA defendants to commence a new enforcement action against (Douglas) in disregard of the settlement of a previous such enforcement proceeding, accompanied by an agreement to extend legal assistance to the APA defendants if they would do so)."

The judge allowed one of Douglas' conspiracy claims, a due process claim and tortious interference allegation against the Council, to proceed to trial. But he rejected 10 other claims Douglas brought against the environmental group, including malicious prosecution, abuse of process and intentional or reckless affliction of emotional harm, to name a few.

Adirondack Council spokesman John Sheehan, in an emailed statement, said his group is pleased that 10 of the 13 claims were dismissed.

"While we would have liked all of them to be dismissed at the very outset, we see this judicial decision as a huge step forward," Sheehan said. "We hope that this case can proceed quickly so that the facts can be exposed and the case ended quickly. ... We will continue to aggressively pursue our right to free speech and defend the mission of The Adirondack Council."

Suddaby also dismissed 18 of Douglas' 24 total claims against the Park Agency. He found that agency employees and officials who were named in the lawsuit were acting in their official capacities and are protected by the doctrine of sovereign immunity. The judge also rejected Douglas' claims of retaliation, wrongful seizure, equal protection and one of his abuse of process claims.

Suddaby allowed other allegations Douglas made against the APA to proceed to trial, including his due process claims, a malicious prosecution claim and one of his conspiracy claims. In another win for Douglas, the judge rejected the APA's attempt to have his attorney, Matthew Norfolk of Lake Placid, disqualified from the case because he could be a potential witness surrounding the negotiations that led to the settlement of the 2007 enforcement case.

Additionally, Suddaby rejected the APA's request to strike two paragraphs from Douglas' complaint that the agency called "derogatory terms unbefitting a pleading prepared by an officer of this Court." Specifically, Douglas said the APA has become a "state funded enforcement regime driven by personal agendas and pressures from environmental organizations and zealots ... who seek to extract or remove the human population from the Adirondack State Park, or at the very least, corral the human population to limited places in the Park."

Asked to respond to Tuesday's decision, APA spokesman Keith McKeever issued a statement via email.

"The court granted motions to dismiss in part, and denied them in part," he wrote. "The agency defendants will now answer the complaint and proceed to discovery."

Suddaby's decision also partially granted motions from Hawkeye Conservationists, a nonprofit Silver Lake-area conservation group, and Ruder to dismiss the claims Douglas filed against them.

Norfolk sent copies of the ruling to local media outlets on Tuesday, saying he was "happy to report that Leroy Douglas' lawsuit against the APA, The Adirondack Council, Brian Ruder and Hawkeye Conservationists, among others, survives the defendants' motions to dismiss."

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Contact Chris Knight at 518-891-2600 ext. 24 or cknight@adirondackdailyenterprise.com.

 
 

 

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