RAY BROOK — Four environmental conservation advocacy groups are vying for party status to the upcoming adjudicatory hearing for a proposed howitzer range in the town of Lewis.

While the public can watch the hearing, only those with party status can actively participate in it. This includes presenting evidence and testimony from experts, as well as cross-examining those of other parties. The four green groups — Adirondack Council, Adirondack Wild: Friends of the Forest Preserve, Protect the Adirondacks! and the Sierra Club’s Atlantic Chapter, which includes the entirety of New York state — are all opposed to the howitzer range. There are no other groups that filed petitions.

The only listed parties, so far, are those that had original status as parties of right: the Adirondack Park Agency, the project sponsor and the administrative law judge (ALJ) presiding over the hearing. The deadline to file intervenor petitions — where groups without original party status are subsequently granted it, provided they meet the relevant criteria — was noon on Friday.

State procedures that govern the APA’s adjudicatory law hearings require the hearing officer, ALJ David N. Greenwood, to make a decision approving or denying the petitions within five business days of the deadline, or ask for more information. In that case, the ruling would be within five business days of the deadline for that additional information.

On Monday, Greenwood wrote to the four green groups seeking party status, as well as the two other original parties, informing them that he would be asking for more information, stating that the applicable state regulations afford other parties “to be heard” as part of the consideration process for potentially granting prospective intervenors’ party status — and he wanted to allow time for that in advance of his ruling, especially given the current timing around the holidays.

One of the project sponsor’s attorneys and authorized representatives, Matthew D. Norfolk, said he would “likely oppose” all of the green groups seeking to join the hearing.

Greenwood asked the current and prospective parties to submit any comments or opposition to the petitions for party status by 5 p.m. on Tuesday, Jan. 6. From there, he wrote that he hoped to issue rulings granting or denying the petitions five business days after that, or Tuesday, Jan. 13. It’s possible, though, that further delays could arise.

In granting a petition, Greenwood could limit the scope in which a certain party can participate. The ALJ’s decision concerning party status, once rendered, can be appealed to the APA at a future meeting.

The green groups had both overlapping and unique reasons for seeking party status, as stated in their individual petitions. The four groups all cited memberships that both reside in and visit the Adirondacks, and would be adversely impacted by the firing of a howitzer artillery cannon. They all point to demonstrated and extensive previous engagement with the APA on land use matters in the Adirondacks, including participation in the last adjudicatory hearing for the proposed Adirondack Club and Resort in Tupper Lake, held in 2011.

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Adirondack Council

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The Adirondack Council is represented by the Albany-based law firm Whiteman Osterman & Hanna LLP. One of its three attorneys on the case is Paul Van Cott, of Saranac Lake. He joined the firm in 2019 in an “of counsel” capacity after retiring as an APA attorney, having been with the agency for around 20 years.

In its petition, the Adirondack Council noted that the howitzer range proposal “is unprecedented in the history of the Adirondack Park,” and needs to be treated as such. The Adirondack Council cited 31 past examples of land use matters it has participated in as evidence of its ability to meaningfully and substantively engage in the proceeding.

“The proposed testing of military-grade weapons on the Project Site represents a use that is fundamentally different in character and intensity from activities traditionally permitted in the Adirondack Park, requiring careful expert planning and technical evaluation and analysis of the Applicant’s proposal,” the petition states.

Given how novel the proposal is, the petition further states that if it’s approved, it could set a precedent for similar projects throughout the park, including potential future expansions in weapons testing at the proposed site.

The Adirondack Council highlighted what it views as several deficiencies with the sound analysis that the project sponsor, Michael C. Hopmeier of Unconventional Concepts, Inc., presented as part of his application.

“The Applicant’s analysis relies on a(n approximately) 20-year-old Norwegian Defence Research Establishment (NDRE) study, with unclear landscape and environmental conditions (temperature, vegetation, wind, ambient noise, humidity, device range) — factors that meaningfully affect sound propagation,” the petition states. “Despite these unknowns, the Applicant modeled source levels using a 130.5 dB measurement from the NDRE study to calculate a modeled source level of 180.8 dB for an M109 155 mm howitzer. However, source-to-receiver distances in the NDRE study differ from the (approximately) 675-foot distance between the proposed barrel assembly and target area here, undermining comparability.”

The Adirondack Council also pointed out that field measurements were taken in two days, one day apart, in late December, and if the testing were to take place in warmer months, as the proposal allows the option of, it could have a different noise dispersion effect.

The group also said the study has gaps in peak sound levels for the howitzer that warrant further independent review, and claimed that it failed to take into consideration the cumulative noise effects from a nearby mine, which, if the two sites were to be in operation simultaneously, the Adirondack Council said could have a greater negative ecological and human impact than what’s been modeled for.

The Adirondack Council’s petition did not name any specific witnesses, stating that it was still reviewing application materials and was in the process of identifying qualified experts for testimony.

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Adirondack Wild: Friends of the Forest Preserve

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Adirondack Wild dedicated much of its petition to contending that the proposed howitzer testing range, even though it’s on private land, is inconsistent with its zoning classification as “rural use.” The group noted that it submits monthly verbal public comments to the APA, and regularly submits written comments about new land use and development applications on rural-use land.

“Military-style testing of cannons exhibiting sound forces at or exceeding 100 dbA should not be deemed compatible with the stated legislated purposes, policies and objectives or Rural Use,” the petition states. “The (state) legislature was clear about this. Military-style weapons testing is not listed as either a primary or secondary use, meaning it is presumed incompatible in this land use classification.”

Adirondack Wild also took issue with the project being of commercial use, stating it appears to lack a military or commercial sponsor or purpose. It also raised concerns about nearby Forest Preserve land, which, at its closest point, is about 554 feet from the proposed range.

“The military-style testing will introduce new, potentially damaging noise forces within these public wildlands, thus directly affecting our environmental interests,” the petition states.

The petition did not, at this time, name any specific witnesses or evidence it would seek to introduce at the hearing.

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Protect the Adirondacks!

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Protect! detailed its history of participation in land use matters before the APA as a demonstration of its capability to meaningfully participate in the hearing, and stated that it would submit testimony on each of the three issues the adjudicatory hearing seeks to address: the project’s compatibility with the Adirondack Park, compatibility with rural use-zoned land and whether it would produce any undue adverse impacts on the resources of the Adirondack Park.

Protect! included several witnesses in its petition, with the request that the list may be supplemented or modified as the hearing progresses, should the group be granted party status.

“Protect! intends to provide expert testimony regarding the history and characteristics of the Adirondack Park generally, why the proposed Project conflicts with the purposes and policies of the APA Act and whether the howitzer firing range is compatible with the purpose of insuring overall conservation, protection, preservation, development and use of the unique scenic, wildlife, recreational, open space, ecological and natural resources of the Adirondack Park,” the petition states.

Potential witnesses Protect! said it would call include Philip Terrie, Ph.D., one or more retired U.S. military personnel who Proect! said might focus on “alternatives to the proposed project” and former APA Associate Counsel Barbara Rottier, who Protect! said would testify on why the project is inconsistent with rural use-zoned land characteristics and commercial use issues.

Protect! also said it intends to call Kurt Fristrup, Ph.D., on how the proposed project’s noise could pose adverse ecological effects to nearby Forest Preserve land. The group also intends to present testimony from multiple witnesses in the town of Lewis regarding the “characteristics and community character of the area.”

In its petition, Protect! includes several other witnesses who would cumulatively testify on five of the eight sub-issues raised in the undue adverse environmental impact study.

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Sierra Club Atlantic Chapter

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The Sierra Club noted that it has 37,000 members in its Atlantic Chapter and, if granted party status, would be represented by Pace University’s Environmental Litigation Clinic. It pointed to the chapter’s past engagement with the APA’s land classification input, public hearings and public comment periods, specifically in relation to a state proposal to build a maximum security prison in Tupper Lake in the late 1990s, the Adirondack Club and Resort adjudicatory hearing, the land classification processes around Little Tupper Lake in Hamilton County and the Boreas Pond Tract in Essex County.

The petition states the Sierra Club Atlantic Chapter would present written testimony pertaining to whether its compatible with the rural use land classification and whether there would be an undue ecological impact or disruption to native or migrating wildlife and their habitats.

“The Sierra Club has both social and environmental interests which are likely to be affected by the agency decision concerning the project,” the petition states. “Sierra Club members who hike, hunt or birdwatch in the (area) will be deterred from doing so by the disruption of solitude caused by the howitzer blasts, and the disruption of opportunities to observe wildlife caused by the howitzer blast and by the potential decline in wild bird populations and breeding disruption caused by the howitzer blasts.”

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Going forward

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The hearing is scheduled to begin at 10 a.m. on Feb. 4 at the APA’s Ray Brook headquarters, with the public invited to attend in person or remotely. Access information for those wishing to attend remotely will be provided at some time in January, according to the APA.

The green groups’ petitions can be viewed at tinyurl.com/mpdramry.