Adirondack Park Agency Deputy Director for Regulatory Programs John Burth presents at the agency’s headquarters in Ray Brook on Nov. 13 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, unanimously, on Nov. 14. The hearing's start date has been delayed until June 24, though prehearing procedures between now and then remain ongoing. (Enterprise photo — Chris Gaige)

RAY BROOK — In what is becoming an increasingly routine occurrence, the Adirondack Park Agency’s start date for the adjudicatory hearing on a proposed howitzer testing range in the town of Lewis has been pushed back yet again.

It is now tentatively scheduled to begin at 10 a.m. on June 24 at the APA’s Ray Brook headquarters. This is subject to potential further delays. The new timeline was ordered on Friday by Administrative Law Judge David Greenwood, who is overseeing the hearing.

Previously, the hearing was slated to begin on April 22, following an in-person hearing for a separate Article 78 proceeding in state Supreme Court on April 20 in which the howitzer project sponsor’s attorney, Matthew Norfolk, is arguing that the entire adjudicatory hearing should be nullified.

That Article 78 proceeding, which is before state Justice Allison McGahay, is still set to begin on April 20. Any future delays to that, though, could potentially push the adjudicatory hearing’s schedule back, given its potential to annul the adjudicatory proceeding if Norfolk were to be successful — either before McGahay or in a subsequent appeal of her decision.

Despite its name, in New York, the state Supreme Court is a trial-level court. It has two levels of appeals courts above it, the intermediate Appellate Divisions and the state Court of Appeals — the latter akin to the U.S. Supreme Court in the federal judiciary. McGahay’s ultimate ruling on this Article 78 petition could be appealed by the losing party, whether it’s Norfolk and project sponsor Michael Hopmeier through his company Unconventional Concepts, Inc. as the petitioner, or the APA, and its named officers Barbara Rice and Rush Holt as the respondents.

An Article 78 proceeding is 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 adjudicatory hearing.

An adjudicatory hearing functions like a trial, with both sides presenting evidence through witnesses, testimony and exhibits that will come to form a comprehensive hearing record meant to help the APA board evaluate whether or not the project will have an undue adverse environmental impact, among other regulatory considerations in its scope of issues.

The hearing is overseen by an appointed administrative law judge, whose job is to facilitate a fair and impartial hearing, make it as run as efficiently as possible and maintain order throughout. Though only the hearing parties may actively participate in the proceedings, the public may watch and attend. It’s unclear if a period of further public comment will be allowed as part of the adjudicatory hearing.

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Project background

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There were more than 1,400 written comments submitted to the APA prior to its Nov. 14, 2025 vote to initiate the adjudicatory hearing. All but 19 of which were in opposition — according to the APA, which added that 97% of those were received between Oct. 1 and Oct. 30, 2025, the official comment period after the project application was deemed complete in September.

Fifteen of the 44 residences that would be within two miles of the range submitted comments.

Many cited noise pollution and the adverse impacts on human and wildlife health, safety concerns, compatibility with surrounding residential, commercial and recreational land uses and pollution to or soil and water contamination. Those can be viewed at tinyurl.com/bdemcybu.

Hopmeier submitted a letter, dated Nov. 6, responding to the public comments. He wrote that many of them were from people who either live far away from the project or would not be impacted by it.

“Many of the comments provided no thoughtful input, revealed no critical information, were unrelated to reality, were based on demonstrably false information or were from submissions designed to provide quantitative, but not qualitative, input,” Hopmeier wrote.

His full letter can be viewed at tinyurl.com/58s2zrxe.

The administrative law judge’s final review of the hearing is presented to the APA board for its members to take into account before rendering a decision. The APA board makes a final decision, and adjudicatory hearings are the only way the APA board can deny or substantially modify a permit that is considered complete.

The project proposes that a portable 155 mm howitzer assembly barrel be placed on a 100-foot by 100-foot crushed gravel pad and fire steel projectiles into a target area. When not in use, the equipment would be stored in a nearby enclosed structure at 87 Hale Hill Lane, which the project applicant owns and is equipped with surveillance and security systems.

The proposed project site is on a 197-acre parcel of private land classified for rural use. The land is owned by Pulsifier Logging, and the gravel pad would sit on an already cleared area. The projectiles would be fired in a west-to-east direction from the cannon to the soft catch basin, in the direction of Big Church Mountain.

The portable equipment includes the gun system, instrumentation trailers, field repair and maintenance systems and a mobile power supply.

The proposal calls for the assembly to be fired up to 30 times per year on weekdays, between 10 a.m. and 4 p.m. The proposal prescribes a maximum of two shots per day, over no more than three consecutive days at a time. The proposal does not place any seasonal restrictions on the testing. The testing is proposed for a period of five years.

The projectiles are proposed to be stopped by an 8-foot by 8-foot by 40-foot-long metal shipping container, or similar structure, filled with sand and other material. The catching system would sit 675 feet from the cannon. No explosive warheads are proposed to be fired.

In February, Protect the Adirondacks (Protect!), one of the four environmental conservation advocacy groups that are intervenors — or parties to the hearing that did not have that status originally but successfully petitioned for it after the hearing was initiated — held an information session in Lewis. An article on that is available at tinyurl.com/yck8vy6j.

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Decision to delay — and what was not

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While Greenwood’s latest ruling delays the first hearing date by about two months, it keeps all of the prehearing deadlines active, albeit delayed from what they were previously, though without objection from any of the hearing parties.

Under the current scheduling order, which is subject to change, all hearing parties must file and serve their list of witnesses by 5 p.m. on April 8.

Protect! had requested that the four groups be able to submit their list a week later, April 15, than Norfolk and the APA both to avoid a “needless duplication” of certain witnesses and testimony, and because this one week review period would “more closely align,” with the burden of proof, which rests with the project sponsor.

Norfolk countered that this deadline separation was prejudicial, and opposed it.

“Indeed, it is apparent Intervenors are looking for any reason to make a motion in attempt to gain some ‘advantage’ in this hearing and to tactically keep Applicants’ bill running,” he wrote. “To the extent that Intervenors are attempting to gain some advantage by submitting their own witness lists a week after Applicants, such request should be denied as causing prejudice to Applicants.”

Greenwood agreed with Norfolk, ruling to keep that witness list date the same for everyone “in an effort to avoid any claim of advantage sought by the intervenors.”

Along with the witness lists, any preliminary interrogatories by the parties and requests for document production in service of these are also due by 5 p.m. on April 8. The responses to these are due by 5 p.m. on April 29.

Pre-filed witness testimony and related exhibits are due by 5 p.m. on May 20 for the applicant, and June 10 for the APA staff and intervenors — the separation here is due to the aforementioned burden of proof, and opportunity for him to respond.

Two weeks later, on June 24, the hearing is scheduled to begin.

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Keeping the ball rolling

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Greenwood’s decision not to stay the prehearing phase is significant. That’s because the prehearing discovery, witness lists, exhibits and pre-filed testimony — along with opposing parties’ scrutiny and objections of and to these — have a large role in shaping how the adjudicatory hearing itself will play out.

Greenwood’s ruling to keep the prehearing proceedings active is a legal blow to Norfolk. He sought a pause on all prehearing activity until the Article 78 challenge concludes — either with a judgement from McGahay or from a potentially much longer subsequent appeals process.

APA staff and the intervenors did not agree with Norfolk’s request for a blanket prehearing stay. Among other arguments, APA hearing staff, led by attorney Grace Sullivan, submitted to Greenwood that they were skeptical of Norfolk’s Article 78 challenge.

Much of that is premised on APA board member Rush Holt allegedly acting improperly by participating and voting, in the affirmative, for the agency to hold an adjudicatory hearing. Norfolk contends that since Holt was an Adirondack Council board member from 2022 to 2025, he had a duty to recuse himself from any APA discussions or actions on the howitzer proposal. This is because the Adirondack Council opposes it, and held that stance while Holt was one of its board members.

An earlier article with more information on that is available at tinyurl.com/v4nwhmyz.

“Applicant’s argument in favor of the stay is couched in laudable principles such as fairness, judicial efficiency and conservation of administrative resources,” Sullivan wrote. “While such considerations may support a stay in some circumstances, they do not justify one here. Both the motion for a stay and the Article 78 proceeding initiated by the applicant frustrate those very same principles and do so without serving the paramount judicial principle of due process.”

Sullivan wrote that even if McGahay or an appeals court were to find that Holt’s actions were a conflict of interest — a claim that will likely be contested by state attorneys representing the APA before McGahay — he was one of 11 board members who unanimously voted to accept the recommendation of APA staff to commence an adjudicatory hearing when only a simple APA board majority was required to do so.

“Accordingly, the alleged conflict would not alter the course of this proceeding or eliminate the need for a public hearing before the Agency may act on the application,” she argued.

Norfolk, though, has previously told the Enterprise that Holt’s participation “undoubtedly influenced” other board members, sullying the final decision.

None of the other APA board members have cited Holt, his presence or any comments he made leading up to the adjudicatory hearing vote as a reason, in whole or part, for their individual decisions to back the adjudicatory hearing.

When the APA board discussed the howitzer project at its January meeting — where it denied a challenge from Norfolk to remove Adirondack Wild as one of the hearing parties — Holt recused himself, leaving the room for the agenda item’s duration.

Norfolk’s Article 78 challenge also seeks to remove Greenwood as the adjudicatory hearing’s officer. He cited an alleged bias and purported conflict of interest stemming from his position as a policy analyst with the Adirondack Council, which Greenwood held from 1993 to 2000, before he attended law school.

As such, Norfolk said prehearing processes should be stayed, since Greenwood’s potential removal from the case by a state court “would call into question the validity of all decisions and formal rulings made by the Hearing Officer.”

Sullivan rebuked this, writing Norfolk’s claim “lacks any basis” to stay the proceedings, and has failed to identify any “concrete showing of bias,” in Greenwood — just that he worked for the Adirondack Council more than a quarter of a century ago.

“The applicant identifies no specific prejudice that would result from proceeding with witness lists, preliminary discovery, or the scheduled opening session,” she wrote. “These preliminary matters should not be delayed based upon an unsubstantiated allegation of bias. Moreover, the designation of a new judge would not undermine the work done in preparation for the evidentiary portion of the hearing, which has not yet been scheduled.”

In his Friday ruling, Greenwood wrote that Sullivan’s argument was “well-reasoned” and summarized it as arguing Norfolk’s request for a stay from him was both “duplicative of prior requests that have been denied or not granted,” this likely refers to McGahay’s refusal to stay the adjudicatory hearing herself in advance of the Article 78 proceeding, which she could have done as a state Supreme Court justice, but declined — as well as undermining “the legitimacy of the applicant’s concerns for judicial efficiency and administrative resources.”

Norfolk has railed against the adjudicatory hearing’s green groups “creating endless, frivolous busywork in an attempt to drain Applicant’s resources,” though Sullivan argues that claim warrants a look in the mirror.

“Contrary to the applicant’s assertions, moving forward with the hearing while the Article 78 proceeding is pending best serves the interests of fairness, judicial efficiency, and conservation of administrative resources,” she wrote. “The applicant does not provide a compelling argument as to how a stay would benefit any of the parties, including the applicant whose purported goal is to ultimately obtain an Agency permit.”

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Widening the hearing scope?

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Greenwood has not yet ruled on a motion by Protect! Conservation Director and Counsel Chris Amato to expand the hearing’s scope of adjudication to determine whether Hopmeier has a “contractual or other legal arrangements with persons or other legal entities for testing howitzers on the proposed range and substantiation of national security concerns, if any, with respect to such proposed testing.”

The Adirondack Explorer reported on March 6 that Hopmeier had a contract pulled by the U.S. Army Combat Capabilities Development Command Armaments Center (DEVCOM), the army’s primary armament research and development branch, in 2023.

This was, in part, due to costs associated with a full safety assessment and risks of projectile ricochet into the nearby U.S. Route 9 and Interstate 87 travel corridors, according to emails obtained by the Explorer under a Freedom of Information Act request. Those documents are available at tinyurl.com/2vm7z3zz and tinyurl.com/7m9bpcsx.

“The email is further proof that PROTECT’s proposed issue is necessary for development of a complete — and accurate — record because it contradicts the application’s repeated claims that the proposed howitzer firing range is being undertaken pursuant to a contract with the United States military and is essential to the national security of the United States,” Amato wrote.

Sullivan wrote that APA staff, while not taking a stance on the issue’s inclusion, believe that Greenwood has the power, as the hearing officer, to add this matter to the scope of issues, should he be persuaded by Protect!’s arguments.

Norfolk disagreed, arguing that APA regulations do not allow the hearing officer to add issues and expand the hearing’s scope, and that he should not go along with Protect!’s request.

“Intervenors have disrespectfully hijacked the proceedings from Your Honor,” he wrote to Greenwood. “It is not for the Intervenors to dictate the issues, the schedule, the sequence of production of evidence, or the Applicants’ choice of counsel,” referring to an earlier Adirondack Council motion, which Greenwood denied, to have Norfolk disqualified from the hearing over what it argued was a conflict of interest stemming from his law firm’s previous employment of Sarah Reynolds, who formerly worked as an APA attorney on the howitzer matter.

Norfolk further argued it’s not necessary to add Protect!’s new issue. He wrote it’s already covered in hearing Issue No. 3, and that even though the emails prove a contract was pulled in 2023, they don’t disprove other military contract(s) may exist for the site, pending APA permit approval after this adjudicatory hearing, or that others may come to fruition later.

“Confidentiality prohibits further discussion of the matter,” he wrote. “However, it should suffice to say that Unconventional Concepts, Inc., is a research and development company and regularly enters into and terminates government contracts in the course of business. To the extent that the project should only be approved if Applicants already have a contract ignores the possibility that contracts enabling Applicants to benefit the United States military and national security may be easily obtained once the application is approved and, therefore, denying the application due to a lack of proof of a contract would not only be short-sighted and paradoxical, but also puts Intervenors in the position of bureaucratically burdening essential research and development needed by our military during wartime.”

It’s unclear when Greenwood will rule on Protect!’s proposed issues expansion.

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.