The audience listens as Adirondack Park Agency Deputy Director for Regulatory Programs John Burth presents at the agency’s headquarters in Ray Brook on Thursday on why APA staff recommended the board vote to send the proposed howitzer testing range in the town of Lewis to an adjudicatory hearing. The board voted to do so on Friday. (Enterprise photo — Chris Gaige)

RAY BROOK — The Adirondack Park Agency issued its formal public hearing notice concerning the upcoming adjudicatory hearing for a proposed howitzer artillery cannon testing range in the town of Lewis.

The project’s sponsor is Michael C. Hopmeier, of Unconventional Concepts, Inc. He is represented by Lake Placid-based attorney Matthew D. Norfolk, of Norfolk Beier PLLC.

The announcement states that the first hearing session will take place at 6 p.m. on Monday, Dec. 22, at the APA’s Ray Brook Headquarters. The public is invited to attend either in-person or online virtually at tinyurl.com/P2021-0276-Public-Hearing, with the passcode 160447.

Administrative Law Judge (ALJ) David Greenwood is slated to preside over the hearing, where he will establish a schedule and rules for public participation. Additional hearing dates are expected to be posted on the APA’s website as they are determined.

Norfolk said he would file a motion seeking to have Greenwood disqualified from the hearing in the coming days.

Greenwood is an ALJ who is employed by the state Department of Environmental Conservation. Though it’s the APA, and not the DEC, tasked with deciding this project’s fate, the APA is “borrowing” an ALJ from the DEC, as it does not have any on its own staff. 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.

Greenwood was formally asked to preside over this hearing by APA Executive Director Barbara Rice in a Nov. 20 letter to him.

On Nov. 24, Norfolk requested that Greenwood voluntarily recuse himself from the case, citing his prior employment as a policy analyst with the Adirondack Council from 1993 to 2000. The Adirondack Council has publicly opposed Hopmeier’s project since 2022. Norfolk copied Rice on that letter, which he addressed to Greenwood.

An article on that exchange is available at tinyurl.com/3txtt92y.

Before the APA issued its formal public hearing notice on Wednesday, Rice wrote to Greenwood and Norfolk, confirming she would not, at this time, remove Greenwood as the hearing officer. Rice said the letter was to address Norfolk’s Nov. 24 request that Greenwood recuse himself.

“In response, I offered Mr. Norfolk and ALJ Greenwood an opportunity to address the conclusory allegations of bias contained in the Norfolk Request,” Rice wrote. “Mr. Norfolk declined to supplement his initial letter and ALJ Greenwood submitted a response … I find no reason at this time to disrupt ALJ Greenwood’s selection as hearing officer.”

Rice pointed out the 22-year gap between when Greenwood’s employment with the Adirondack Council came to an end and when that group first commented on Hopmeier’s proposal.

“The span of over two decades — which time span Mr. Norfolk does not explicitly mention in his letter — undermines an inference upon which to conclude that ALJ Greenwood was involved in the Council’s public comments.”

Rice went on to write in a footnote that even if Greenwood had been employed with the Adirondack Council when the group came out against Hopmeier’s proposal, which he was not, that alone would not demonstrate a bias against the project.

“(T)here is still no allegation of fact suggesting a connection, relationship, or other fact to challenge the impartiality of the ALJ,” she wrote. “That an organization ALJ Greenwood used to work for — prior to attending law school and 21 years before the project at issue was submitted to the (Adirondack Park) Agency — expressed opposition to the proposed project is by itself an insufficient basis for disqualification.”

Rice wrote that she was unable to find any facts supporting Norfolk’s allegation of bias, or that there is “undoubtedly an appearance of impropriety,” regarding Greenwood’s selection, which Norfolk wrote in his Nov. 24 letter to Greenwood.

Rice also responded to Norfolk’s assertion that the two-day response window was unlawful, pointing to her earlier claim that the mechanism for Norfolk’s challenge was outside of the law to begin with, and stating that her response window did not constitute a deadline, given the nature of the request.

“In short, I did not, as Mr. Norfolk incorrectly suggests, set a deadline for challenging the designation of the hearing officer,” she wrote. “(I)nstead, I responded to a facially improper request, ensured it became part of the hearing record, and afforded Mr. Norfolk an opportunity to supplement the conclusory allegations of bias in his letter, which he declined to do.”

Norfolk responded by reiterating that his previous correspondence was not a formal challenge and, as such, took issue with Rice’s response in an email addressed to her, and copied to the relevant parties, later on Dec. 3.

“Your purported decision is more akin to an advisory opinion,” he wrote. “No motion or challenge was filed for you to rule on. Per the governing rules the applicant is afforded sufficient time to file a challenge. ALJ Greenwood had not submitted the required disclosure when I asked him to recuse himself. And, your two-day/Thanksgiving window to file a challenge would shock the conscience of any reasonable person and is contrary to the applicable procedural rules.”

Norfolk added that there was no rule that prohibited him from making his initial request to Greenwood seeking his voluntary recusal.

“In fact, the request was done in good faith to avoid motion practice,” he wrote to Rice. “You should welcome that approach as do the courts and most, if not all, other administrative tribunals presiding over hearings.”

It was in this correspondence that Norfolk declared that he would file a motion seeking Greenwood’s disqualification. Norfolk told the Enterprise Thursday evening that he planned to submit that formal challenge “in the next few days.”

“As far as what we’re presenting, I’m not there yet to provide a comment,” he said.

Norfolk thought the length of time since Greenwood’s employment with the Adirondack Council was “irrelevant,” and that he was curious to know if the ALJ is still a member of the Adirondack Council, and if not, when that ended. He said that his team is still doing its research into the matter, and has not finalized what may or may not be included in the motion.

“We’ll go from there,” he said. “I can’t foresee what (Rice) will do with the filing of a challenge, which will be in large part premised on his affiliation, but I’ve got to make that motion because a request for disqualification or a request for disqualification that is denied can be appealed to the (state Supreme) Court in Article 78 at the end of the proceeding.”

After the Enterprise published an article on Dec. 2 reporting Greenwood’s selection and the associated correspondence, Christopher Amato, Protect the Adirondacks! Conservation Director and Counsel wrote to Rice, objecting to the manner in which it took place. Protect! is a conservation and environmental advocacy group that is opposed to Hopmeier’s proposed howitzer testing range.

“In this case, the APA Executive Director engaged in several days of communication with the applicant’s attorney regarding a matter squarely within the pending adjudicatory without informing the public or other interested parties — something that could have been easily accomplished by posting all relevant documents online,” Amato wrote. “Although formal party status has not yet been granted, APA is fully aware that numerous individuals and organizations have participated extensively in the review of this application and many will likely petition for party status.”

Protect! concluded the letter with two requests. The first was that Rice and other senior APA staff involved in decision-making refrain from future substantive communications with Norfolk or Hopmeier “outside of proper, publicly disclosed channels.” The second was that “(a)ll prior communications between the APA Executive Director and Mr. Norfolk concerning the designation of Judge Greenwood, and any other communications concerning or relating to this issue [including this letter], be immediately posted on the APA’s website.”

The APA published the letters on its website Thursday afternoon. While the APA did not include Protect!’s letter in the correspondence, Protect! posted a copy on its own website. Protect! Executive Director Claudia Braymer told the Enterprise Thursday evening she was glad to see the agency publish these on its website, but wished that it had been done sooner.

“Every day is a day that we need to prepare, even if it is just the pre-hearing conference,” she said. “I’m not entirely sure that’s what’s scheduled for Dec. 22. But it is helpful to see that the APA has since put the notice out to the public, and it is on the public website.”

Braymer said Protect! was not yet ready to disclose if it would seek to join the hearing as an intervenor, or a group that does not have original status as a party to the hearing, but is subsequently granted that through a successful petition.

Groups have until noon on Friday, Dec. 19, to petition seeking party status. Parties of right to the hearing — or those that do not need to petition to be a party, but are not obligated to join as a party — include landowners within 500 feet of any border of the property, the Adirondack Park Local Government Review Board, the county planning board chair, county clerk, the chair of the appropriate regional planning board, the town supervisor, the clerk of any local government within 500 feet of the project site and any state agency.

Though anyone from the public can attend the hearing, it’s only the parties that actively participate in it. They have the power to present evidence, cross-examine witnesses or otherwise participate in the proceedings, which are expected to rely heavily on expert testimony.

Qualifications for those seeking party status need to be demonstrated in the petitions. The criteria is listed in 9 CRR-NY 580.7, the section of state law that regulates how intervenors are chosen. That can be read at tinyurl.com/2zjchbbr. The ALJ makes the determination of whether party status is granted.

To access the letters and more information about the hearing from the APA, visit tinyurl.com/mpdramry.