Saturday, October 21, 2017

Day Two- Adjudicatory Hearings at train station. Moves to APA headquarters tomorrow.

March 23, 2011 by · Leave a Comment 


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By Dan McClelland, Tupper Lake Free Press

On the Record:

Most of same players as yesterday.

Including Fred Schuller, Don Dew Jr. , Carol Richer, Peter Littlefield, Elaine Yabroudy, as neighbors
Paul VanCott, Mark Sengenburger, Mitch Goroski, Colleen Parker, Dan Spada of APA staff
Town Supervisor Roger Amell, Mayor Mickey Desmarais, Dan Plumley of Adirondack Wild.
Attorney John Caffry, Brian Houseseal, Meuve Tooher of Adirondack Council.
Jim and Carol Richer, Jim Lanthier, Paul Maroun, Shawn Stuart, Rickey Dattola, Bruce VanVranken, Lorraine LaValley, Jim LaValley, B.G. Read
Tom and Susan Lawson, applicants
Tom Ulasewicz, attorney for ACR; Kevin Franke from LA Group of Saratoga.
John Caffry, attorney, and Lorraine Duval, for Protect the Adirondacks.

Testimony continues on Issue No. 7 (boat launch concerns of Adirondack Club and Resort’s marina facility at former McDonald’s Boat Livery site.

Witness: Colleen Parker of APA staff:

Questions by Paul VanCott, APA attorney.
Pre-file testimony about her experience admitted.
Tom Ulasewicz (TU): applicant attorney with question: regarding Colleen’s experience
Paul VanCott: since filed pre file testimony, opportunity to speak with DEC about use of state boat launch?
Colleen: yesterday. Members of ACR would be able to use. Rules do not prohibit groups of people from using launch.
Ask him what happens if overcrowded. He said DEC could potentially create another boat lane at that facility. Part of Bog River Unit Mgt. Plan, so APA would also review.
Tom Ulasewicz: cross examination: DEC rep was attorney (Scott Ambrahamson)?
Colleen: yes
In third section of testimony, asked how boat launch is supposed to be used by project. Project sponsors say boat launch has adequate capacity?
Colleen: agree, based on current info. Currently underused. If capacity increases, no way of knowing.
TU: 48 boats per day, heard yesterday. Is that at build out?
Colleen: based on half people in ACR owning boat.
TU: state boat launch is governed by unit management plan. Must be updated every five years?
Colleen: couldn’t have answered.
TU: update would look at boat launch capacity?
TU: your DEC conversation makes many of my questions irrelevant. Concern about flow of boats and delays using launch. What wasn’t mentioned yesterday, ACR boats can be moved on and off of lake at any given time? Some boats would be rafted beyond ACR docks.

John Caffry: no testimony about rafting of boats yesterday.

TU: your understanding that use of marina, that boats can be tied or rafted at marina, and moved to launch at any given time?
Colleen: not familiar with term rafting.
TU: tieing together boats is rafting
Colleen: Kevin Franke’s testimony that boats launched at launch and boarded at ACR docks. Read his pre-file testimony.
TU:what development consideration that issue involves. You cite three development considerations: ability of government to provide facilities. Referring to NYS?
Colleen: yes
TU: second consideration is conformance with other gov’t controls. What controls?
Colleen: any DEC law that apply to use of launch.
TU: third consideration: protection of critical areas, re: wetlands.
What applicant proposing?
Colleen: protection of wetland resources would be protecting introduction of invasive species brought in by boats from out of area. Launching a boat isn’t considered a development activity. But possible concerns about debris attached to boats from outside area being introduced to lake. Don’t think agency has any power to regulate activity at boat launch. Should require that boats from ACR should be washed before launched.
TU: read first five lines of second statute (805-1-a)
Colleen: APA Act to guide land use development, except for those lands owned by state.
TU: given that language, what justification for applying APA regulations to state land?
Colleen: nothing in pre-file testimony points to that.
TU: my question is what justification to applying those APA considerations, when state land excepted?
Colleen: don’t understand question.
TU: why this issue before APA- since launch is under province of DEC?
Paul VanCott (APA staff attorney): objection, asked and answered.
TU: why discussing this issue, what controls does APA have?
Colleen: comes later in my discussion. Required to determine how project effects other state operations.
TU: act says “except for those lands governed and owned by state?”
VanCott: pertains to one of issues asked by commissioners of APA.
TU: rephrase it this way: agree that APA land use plan guides land use in park except for lands owned by state?
Colleen: no I would not agree with that.
TU: how land use plan guidelines for development apply to boat launch? How intend to regulate use of boat launch?
VanCott: not trying to regulate boat launch. Trying to regulate boats from ACR.
Judge: Sustain objection.
TU: regulating boat use at ACR, not a boat launch?
Colleen: I agree with that.

Question of Colleen Parker from Paul Maroun:
Paul: at hearing yesterday, have you been to boat launch?
Colleen: yes.
Paul: seen register of those using the boat launch site?
Colleen: no, but saw copies of sheets attached to Kevin Franke’s testimony. Those costs showed many canoe operators who make the trip from Long Lake to Tupper Lake, and who park cars and trailers at boat launch.
Paul: Can’t take motor boat from Long Lake to Tupper Lake?
Colleen: I agree
Paul: Agree a paddle boat, not motor boat.
Colleen: If visitor traveled from Long Lake to Tupper Lake, assumed paddle type.
Paul: observed handicapped launch.
Colleen: seen two lane ramp.
Paul: Ever walked land west of main ram?. Other type of docking facility near restrooms?
Colleen: yes.
Paul: Could launch kayak or canoe there?
Colleen: yes.
Paul: Ever launched a boat?
Colleen: I’ve been in a boat that has been launched.
Paul: Ten minutes to launch a kayak, guide boat?
Colleen: It could.
Paul: Same time to launch light kayak and heavier guide boat?
Colleen: Possibly.
Paul: Less time to launch paddle boat versus motor boat?
Colleen: Agree with that.
Paul: Before spoke to DEC, aware any commercial enterprises use that launch?
Colleen: Unaware of that.
Paul: Do know camps across lake that available only by motor boat?
Assume delivery of construction materials are made by motor boat?
Colleen: yes.
Paul: There have been commercial uses. DEC has no ban on commercial use?
Caffry: Objection, he’s putting words in her mouth.
Colleen: DEC said members of ACR are considered members of the public. Never heard about commercial vehicles using boat launch.
Paul: I meant commercial operation using the boat launch?
Colleen: Conversation with DEC attorney didn’t discuss commercial operations there.

Question by B.G. Read: Prefer to defer to Protect the Adirondacks.

Caffry: I had not planned to question based on pre-file but do now based on discussion this morning.

BG Read: Stated heard testimony from Kevin Franke about projected use of boat launch and possibility of storing boats at McDonald’s Marina.I heard statements that one slip at marina going to be used to go back and forth. Ever heard of rafting proposal?
Colleen: Not before today.
BG: I anticipate in review there would be rafting at boats, and boat launching and retrieval service.
Colleen: Our review that there would be 40 slips in area where docks previously situated.
BG: Your view of marina plans, show an increase in dock size from previous operation?
Colleen: The marina is pre-existing use (prior to 1973) and proposal to have 40 dock spaces. Does not exceed number of spaces there before. Docking area is consistent with past operation. If smaller boats used, room for more than 50 smaller boats in same area. Docking area would be same “disturbed” area.

BG: ACR plan doesn’t have impact on wetlands area?
Paul VanCott: Objection…not part of this issue.
BG: (referring to Kevin Franke testimony) He anticipated that launch service could place boat or remove a boat (at launch) every ten minutes.
Colleen: heard that.
BG: Would take how many ACR employees to go from ACR marina to boat parking lot and back?
Colleen: Don’t remember.
BG: I’m assuming it takes some time (2.5 miles of distance between two).
TU: Objection, he’s speculating what record said. Don’t have transcripts. Record will speak for itself.

Judge: Mr. Read, what is your question?
BG Read- if launched and retrieved every ten minutes, do you believe ACR would have to have additional crews?
Colleen: Don’t know.
BG: I assume two teams at launch site, to launch and wash boats, etc…
Colleen: I don’t have an answer.
Paul VanCott: It’s a question that Colleen has been asked before or said she heard that portion of testimony.
BG: The testimony yesterday would mean there would have several vehicles there.
Judge: That’s been established.

Kirk Gagnier questioning of Colleen Parker:

Kirk: You described boat launch and capacity. Different boats used in different parts of site?
Colleen: Yes.
Kirk: 47 boats is totally dependent on time of day boats are launched and removed. He had questions about capacity. At build out in 15 years, was there consideration of launching capacity in Raquette Pond at municipal park.
Colleen: Yes.
Kirk: Was there consideration of capacity of Route 3 boat launch known as “Crusher?” The additional capacity at tge nearby village launch and Crusher launch not factored into your analysis?
Colleen: That’s correct.

John Caffry (Protect the Adirondacks Attorney): cross examination of APA’s Colleen Parker.

Caffry: You testified DEC said if boat launch became overcrowded, they would consider an additional lane at boat launch. If were to occur, who would pay for building other lane?
Colleen: New York State.
Caffry: Anything in application that ACR would pay for?
Colleen: No mention.
Caffry: Does current state unit management plan discuss adding third lane?
Colleen: No.
Caffry: Tom Ulasewicz asked about APA oversight of state facilities and lands.
Does APA typically review impact on adjacent sites, public or private?
Colleen: Impacts of projects in public areas within agency jurisdictions.
Caffry: no other questions, but as long as I’m up here I’d like to call some of our witnesses on this issue. They are available here today.

Judge: Mr. Caffry, you have some rebuttal witnesses? Documents may have been send that weren’t received.

Caffry: Call Peter Littlefield and Elaine Yabroudy as rebuttal witnesses. Familiar with use as residents. Secondly, Dr. Phyllis Thompson who will testify later on issue No. 1 and who works summers as volunteer lake steward. I’d like to add her testimony when testifies in June.

Tom Ulasewicz: objected to any process that would allow testimony where people who are party to hearing and requirement of pre-file notice. These people know of issues. No one came forward with any information. Predict this will go on and on and on and unfair. These people have followed the process and were aware of pre-file deadlines. Didn’t think that any of these people are experts? They can file briefs at end as long as they maintain party status. They didn’t make opening statements. Phyllis was involved in the conference call. This is a terrible precedent for rest of hearing.

Brian Houseseal (Adirondack Council): I don’t agree with second point that parties didn’t try to consolidate. Adirondack Council tried earlier and then unconsolidated.
Jon Kopp: chamber would object to testimony from the three non-experts. We could fill the chair with local people who could also testify about the boat launch use.

Paul VanCott: APA hearing staff would agree with applicant. Witnesses should have filed pre-file testimony. However, we have no objection to information coming from these people.

Judge: I don’t understand staff position.
Paul: We’d like to have their information come into record, but prefer it come in as pre-file, not as rebuttal witnesses.

Kirk Gagnier: We agree it opens door to continued slew of rebuttal witnesses. It opens up a door to other rebuttal witnesses, who aren’t here at this time. Not sure if I heard Mr. Ulasewicz correctly. The concept of using this type of rebuttal witness would lead to a flow of rebuttal witnesses. The precedent it would set would be very dangerous. They had opportunity for pre-file testimony that would have given parties a chance to review. I consider this an end run around proper flow of testimony.

Judge: If rebuttal witnesses were permitted, would town seek to offer rebuttal witnesses.
Kirk: Possibly and other parties would too. It would set bad precedent.

Tom Ulasewicz: If want a motion from me, glad to make it whenever you want.

Judge: Is there a reason, Mr. Caffry, your witnesses didn’t offer profile.
Caffry: I didn’t see a need for it, until talked with these witnesses yesterday. I had asked for process of introducing witnesses and rebuttal witnesses. I didn’t want a free for all, like people are accusing me of. I read the rules of permitted brief testimony and learned they wouldn’t need to be pre-filed. Their information is limited. I think I’m following your scheduling orders and no one objected. Not trying an end run.

TU: Judge, your order said non-expert witnesses did not have to do pre-file testimony. This is rebuttal testimony. It was never covered. There was never a discussion of non-expert testimony by the parties. This will prejudice this record and extend these hearings indefinitely. They have an opportunity to participate in final briefs. If you want to continue, then file pre-file testimony, like everyone else.

Caffry: I don’t think will prejudice anything.
Paul VanCott: my understanding that application did include information about use of boat launch. Hearing staff’s concern is that way it should be, if information part of the application, then direct testimony should be done in pre-file form. However, because of information is in hearing order, no objection.

Judge: I will allow rebuttal testimony. My order said it did not have to be pre-filed. I didn’t receive any objections. I would be happy to discuss procedure during a break. At this point I will allow rebuttal to go forward.

Tom Ulasewicz: I’d like the applicant’s objection noted on record.

Judge: It will be so noted.

Paul Maroun: It opens a flood gate. I will be asking for a motion of continuation so I can bring in rebuttal witnesses. Some of these witnesses have prejudiced themselves in opposition to the project.
Judge: I do share concern this could be never ending. But rules, as per my order, permit it. Didn’t anticipate this.

Caffry: Will each person state their name?
Peter Littlefield and Elaine Yabroudy did so. They reside on Lake Simond Road. Peter born and raised here, short time away. Elaine lived here full time since their marriage. They own two power boats and one guide boat. Two stored at home. One in storage elsewhere.
Caffry: Ever use boat launch, and how often?
Peter: Yes, four or five times per year. We’re familiar with boat launch.
Caffry: Were you here for Kevin Franke’s testimony? Did you hear him testify there is room for three boats at one time?
Peter: That’s correct, but often congestion. It would be difficult. Sometimes boats don’t start so there are delays.
TU: I object…it’s based on speculation.
Caffry: It’s based on observations?
Peter: Yes.
Caffry: What happens when you use launch and there are boats in both lanes?
Peter: You have to wait outside launch area. Have to idle your boat and stay in place.
Caffry: Are lake conditions conducive to this?
TU: Objection. When did they observed this?
Caffry: There have been times when observed people have had problems staying in place?
Peter: Yes, during windy conditions.
Caffry: It’s a very windy spot?
Peter: Yes. People have to try to stay in place, but difficult.
Caffry: Does it speed up or slow down launching process?
Peter: Slows down.
Caffry: What are the conditions waiting boat operators face?
Peter: It’s a shallow area with debris on lake bottom.
Caffry: Ever struck bottom?
Peter: Yes, with my prop.
Caffry: Do you recall Franke testify about DEC registry. Were you aware of boat registry?
Peter: No and I have used the launch for 30 years.
Caffry: Ever signed registry?
Peter: Not in 30 years. Don’t know where it is.
Caffry: Do you feel a need to sign it?
Peter: Don’t know.
Caffry: Did you hear the capacity of boat launch cited in Kevin Franke testimony? Did you hear him testify 48 boats per day could be introduced? Have you observed usage levels at boat launch?
Peter: Yes.
TU: Objection. What time frame were these observations made?
Caffry: Please permit me to ask questions.
Judge: Mr. Ulasewicz, you will have chance to cross exam.
Caffry: You have observed usage?
Peter: Yes, I’ve seen the parking lot full. On four or five times I use it each year, I’ve seen it full on several occasions on weekends.
Caffry: On what type of days?
Peter: On nicer summer days.
Caffry: Did you hear Mr. Franke say ACR could bring 48 boats per day to that launch.
Will the launch be able to accommodate them?
Peter: It will create great difficulty.
Caffry: Have you seen congestion in launch site and parking lot?
Peter: Yes.
Caffry to Elaine Yabroudy: Do you accompany your husband? Have you ever counted boats and observed conditions?
Elaine: I have observed eight days per season, mostly weekends. On the Fourth of July and July 5th week the launch was full and overflowing. Cars were parked on grass. People had to line up to use launch.
Caffry: As local boater would you like the launch all tied up with valet service.
TU: Objection.
Caffry: If full, how would you feel?
Peter: I would be frustrated.
Caffry: Are you familiar with McDonald’s Marina? Did you hear the testimony about making appointments by boaters?
TU: Objection.
Judge: please rephrase.
Caffry: Did you hear Mr. Franke say boaters would have to make an appointment for valet service?
Peter: Yes.
Caffry: In your experience, do storms come up on lake?
TU: Objection.
Peter: When storm come up people immediately try to get off lake.
Caffry: Would they head to McDonald’s Marina? Is there room for 48 boats coming off lake at same time?
Peter: I don’t think so.

TU: I’d like to think about cross for witnesses.
Kirk: I have questions for cross examination.

TU: The applicant is going to defer to other parties. About introducing rebuttal witnesses, I may change mind.
Kirk: ask for continuance to bring other witnesses of our own. We must have resolution of this issue.

Peter and Elaine excused.

Judge: I would like motions filed by April 11 for any additional witnesses. I’m perfectly willing to revisit cross procedures. We could do it during break this afternoon.

Jon Kopp: The chamber of commerce asks that no parties be permitted to make rebuttals. It will only make the hearings very contentious. Witnesses should be outside of parties…experts in their respective fields.

Judge: The regulations authorize rebuttal witnesses.

Jon Kopp: Just exclude parties as rebuttal witnesses. They will have their say in closing briefs. Allow rebuttals, but not from those who are parties.
Judge: What we’re offering at the end are closing statements. This is about evidence, subject to cross examination. That is what board will weigh. It will help them interpret things. Convention is that evidence is sworn testimony and it’s critical. Unless sworn in, it’s not evidence, so cannot be relied upon. Every party has right to present testimony but must be efficient. Rules allow for it, but need to realize everyone from town cannot testify about boat launch site. Question is how boat launch used. Board needs to know the answer. The parties need to come up with answer how it is used.

TU: I look forward to meeting off record later on. One thing to put out for consideration: direct expert testimony should be rebutted by expert testimony, not non-expert testify. If testimony entered by parties, must be required to pre-file.

Caffry: I strenuously object to both proposals. Law is clear that expert testimony can be rebutted by facts from lay people. It’s a very acceptable practice and I’m willing to brief it.
Pre-filing rebuttal will drag this out. Don’t know rebuttal until here testimony. Their testimony was limited to what was said yesterday. They had no opportunity to pre-file their testimony.

Break for Lunch

Tuesday hearing resumed at 1p.m.

Off the record discussion about application materials. Judge: exhibit should include application materials, so can make reference it during hearings.

Judge asked Mark Sengenburger to explain document. He worked at APA for 11 years, most recently as deputy director regulatory branch. He’s back working for APA as contract employee with purpose to help out at this hearing.

Mark: number of materials, letters back and forth. Notices of incomplete application correspondence. Many materials between agency and project sponsor over past seven years. We’ve attempted to list all these in chronological order. Thought this might be helpful. At conclusion of hearing, we intend to create a CD containing all exhibits and correspondence and the materials submitted over the past seven years.

Paul VanCott: CD will also presented to APA commissioners.

John Caffry: Many of older documents, for example, requests we’ve made for information and never received, are obsolete.

Paul VanCott: official record includes application and all notices.

Caffry: So someone reading record would not know what’s obsolute and what’s not?

TU: I think the application summary represents a good job by agency staff. List of agency documents, the relevant ones are what is formulating the proposed conditions. That document is part of the exhibit list?

VanCott: Yes.

Mitch Goroski (APA senior attorney): For example, water design report. Italicize old document in list as reminder that it may have been replaced. Although someone may still want to use that original document.

Sengenburger: complexity of issue is that much of the analysis included early in the process. Some of the exhibits have been upgraded with new information.
Listed all attachments to exhibits. Unfortunately is complicated. But no easy way to compile list.

Caffry: everything on one CD?

Sengenburger: Whatever technology permits. Maybe DVD or multiple CDs?

Caffry: The five CD set issued of the application was difficult to navigate.

VanCott: If we goo through this exercise and identify by exhibit number, things will match up.

Over an hour and half was spent by the APA’s Mark Sengenburger, former APA deputy director and now a contract employee retained to work on ACR project, and Attorneys Paul VanCott and Mitch Goroski giving exhibit numbers of the hundreds of documents that are found in the exhibit list, with the parties listening and occasionally offering clarifications.

Editorial note: why this wasn’t done by two legal secretaries- one working for the APA and other working for applicant’s attorney- is amazing. An incredible waste of time and money for everyone. If all the hourly wages of the attorneys and consultants in the room that day was amassed, the bill would have run into the thousands of dollars.
John Caffry of Protect the Adirondacks had a number of questions of the exhibit markers, obviously one more attempt to drag things out.
End of editorial comment.

Tom Ulasewicz: I’d like to get final mediation agreement entered into the exhibit list.

Mitch Goroski: We never had a copy of it, since the judge felt the agency shouldn’t have a copy in the interest of confidentiality.

Caffry: It should be noted, itwas only signed by some parties. I don’t want people to think everyone involved signed mediation agreement.

Tom Ulasewicz (TU): Concerning party status petitions, which arrived in various ways (five and six binders). You might want to consider not putting into record, unless someone needs to use them, from a stand point of practicality.

Caffry: APA regulations state that all petitions are part of record. We shouldn’t be picking and choosing. If you do you should throw out some of other stuff too. Petitions for party status should be included in the record.

Judge: If we need additional numbering to include those we can.
Pre-file testimony must be entered into transcript.

VanCott: Everyone will get the CD and it will be separate charge to applicant.

Judge: We can go back on record and enter exhibit list or stay off record and work out rebuttal witness issue?
TU: There a several conflicts in draft permit conditions my clients would like to address, like the ACR can’t use Cranberry Pond for a snowmaking water supply at 2013, yet they won’t start installing snowmaking equipment for two years after that.

Judge: Do you want aseparate response to summary of application and draft conditions?

TU: Can do together, if time left after this boat launch thing finished (humor).

Judge: All comments on summary and draft conditions are due by May 9 and responses by May 20, respectively.

Back on Record:

The judge identified all records and assigned some numbers. Discussion of forthcoming documents.
Re: draft conditions and summary of application parties will file documents by May 9 and responses by May 20.

Off the record again:

Judge: There are two items we must discuss: one of which is a stipulation on hearing issue No. 12, revised by APA staff. It was raised in discussion yesterday. Not everyone has accepted them and rebuttal practices.

TU: Tomorrow morning do we start visual impact testimony? Thought that’s all we had left for group #1 issues. So can I schedule our witnesses for tomorrow?

Judge: Visual impact testimony will occur tomorrow and Friday. Witnesses from applicant, Adirondack Council and APA staff, in that order. Like parties to consider working into Thursday and Friday nights, to avoid next week.

APA staff and Protect attorneys said they were willing to work into the evenings.

Discussion on accepted stipulations on revised hearing issues No. 10 and 12.

Judge: It was discussed heavily yesterday. My notes said all parties yesterday accepted No. 10 so we’ll start there first.

Judge: APA staff distributed revised copies of the stipulations to everyone today. My recollection, all people present accepted these stipulations. I will distribute stipulations to all parties who are not here and give them time to respond.

Pre-file testimony associated with Issue No. 10.
VanCott: Applicant and staff conferred and agreed to proceed.
Judge: My concern, if everyone agrees, if it could be entered into record. But not all parties here.

Called Colleen Parker by APA staff.

VanCott: Opportunity to review your pre-file with respect to No.10?
CP: Yes.
VanCott: Do you want to modify? I move her testimony to No. 10 should be admitted to the record.
Judge: Move it be included in record.

Judge: With respect to stipulation, I’ve been making a list. You all agree not to cross-examine.
VanCott: Yes
Judge: you are excused, Ms. Parker.

Kevin Franke called with respect to No. 10

Tom Ulasewicz (TU): Document in front of you indicates your pre-file testimony with respect to issue No. 10. Does it include exhibits? Any changes?
Kevin Franke: No changes.
Judge dismissed him.

Judge: two parties yesterday reserved whether or not to accept documents. Adirondack Wild will not accept?
Dan Plumley (Adirondack Wild- preservationist group) We conferred with agency staff and now accept.

BG Read: like to have our attorney review it first and reserve right to cross-exam.

TU: If we stipulate to this document, with exception of Reads, I’m not sure I would put on direct witnesses, since Mr. Read wants to cross-section. Applicant conceded to all staff numbers. If someone said I want to cross exam your witness, I’m tempted to withdraw my witness.

Caffry: I hope APA staff will permit its pre-file to stand in record.
VanCott: We would. If we need to cross-exam, we would.
Judge: The only witness introduced on this issue would be by APA staff.
BG: We’re not prepared to cross exam today.
Change in Issue No. 12
Paul VanCott: No need to cross exam. At this point the stipulation has been agreed to by all parties except Reads- so remains an open issue whether Colleen sits for cross examination.
TU: If there is cross examination, then I have to make my witness available.

Back on Record:

Colleen on stand again with respect to No. 12. Corrected were two items in her pre-file testimony, a map error. On page 7, line 6 the number 30 should be 29. Numbers consistent with numbers on paragraph four of stipulation.
Excused.
Judge: How much time Mr. Read to get the documents to your attorney and get his opinion?
BG: Ten business days, I would expect.

Judge: Friday, April 8 is your deadline.
BG: That will be good.
Judge: I will be transmitting to all parties on service list. Response by April 8. Whether they accept or reject the two stipulations. I will report on the vote.

Meuve Tooher (Attorney for Adirondack Council): Not clear about testimony on No. 12. Thought you said Tom your were withdrawing your witness?
TU: I’m putting witness back in, Kevin Franke.

TU: Kevin, I handed you your pre-file document with respect to Issue No. 12. Is it yours?
Kevin: Yes.
TU: Any changes?
Kevin: Table needs to be modified, so consistent with item No. 4 or park agency’s stipulation.
TU: Have the numbers been changed in revised stipulation to issue No. 12? Agree with numbers?
Kevin: Yes.
TU: I move changes be incorporated into record.

Kevin Franke was excused.

Judge: only item left is visual impacts- scheduled for tomorrow at APA headquarters. Talked about order of witness: applicant’s, Adirondack Council’s, APA staff’s. We’ll also talk about extending hearing day tomorrow.

Go off record and address procedures for rebuttal.

Judge: before lunch, Tom Ulasewicz suggested all rebuttal testimony be pre-filed, and Caffry objected to it because needs to be lag time. I agree, because parties won’t know if want rebuttal witness until after the testimony. I’m willing to amend order to allow pre-file rebuttal, but need time for parties to review.

Tom Ulasewicz said he was against using non-expert witnesses: It’s one way of reducing the number and amount of rebuttals. Parties are making a good faith showing of sincerity that they have bonafide issue by using expert witnesses, rather than neighbors. Half of the people in Tupper Lake use that lake and all can get up on stand and testify. Using non-expert witnesses doesn’t add substance to the record. I’m willing to exclude pre-file testimony if a bonafide witness come on. It’s the non-experts who are not needed.

Judge: It’s perhaps unique to this issue butthere are people who use boat launch site and who can give helpful testimony.

TU: I’m finished with No. 7. Talking about subsequent issues. Arguably only influence APA can have over adjacent site, is something that tied to application itself.

Caffry: (The APA board) could reject application on that basis.
TU: I’m willing to take that risk. Other issues must be based on experts. If going to rebut, should be professional. Don’t know what Caffry was trying to achieve.
Caffry: Maybe that on some of these other issues, there is no room for lay testimony. Maybe Issue No. 7 unique. We shouldn’t prevent any person from testifying based on fact. If Mr. Franke said sky was purple. Many who could testify otherwise. We shouldn’t exclude lay witnesses based on their experience. Law is very clear on this. Don’t intend to abuse it, but depends on what comes out. Had no intention of rebutting Mr. Franke until heard what he said.

Carol Richer: We own land adjacent to marina and across the highway. We do know the surroundings and the details of the boat launch. Certainly have experience in those areas. There maybe other experiences by neighbors who would afford important information.

Judge: Is issue No. 7 separate from how we will proceed? Is more immediate issue the other issues.
If we have time period after profile when parties could offer a rebuttal and then we could investigate if person qualified or not. I want to make this as efficient as possible.

Kirk Gagnier: With regard to experts, it should be clear the experts are identified in pre-file and long before testimony. With lay witnesses, just presents opportunity for prejudice. It’s a merging between opinion and fact. Your suggestion is good, but we also need indications of what lay witnesses will testify about.
Caffry: Anyone can always do that.
Kirk: I don’t want to be objecting to specific details of their testimony. What time of day was observation?
Caffry: It’s part of the process. Last minute stuff comes up. Found in many APA and DEC hearings. Don’t know if I need rebuttal witnesses until I hear testimony.

Meuve Tooher (Adirondack Council attorney): I need to be able to rebut evidence and don’t know what to rebut until I hear the testimony. It should be up to the judge. Everyone should have rebuttal opportunity. To have a full and complete record it’s needed because you can’t anticipate what the evidence will be.
TU: It’s the non-expert witnesses being used I’m against. Someone who operates a boat four or five days a week on Tupper Lake offers nothing like someone who has studied boat launches and who has records to produce to back up their information. Not to criticize what happened today, but I just want to avoid such incidents for the balance of hearings.
Meuve:there may be factual issues that must be rebutted.
BG: Mr. Franke’s testimony and info that came out in cross was entirely novel. The questions people had were questions of fact. I can see reading an expert pre-file testimony and getting another expert direct.
Van Cott: The regulations are very broad. To have non-experts would require consensus of parties. Would want to be able to rebut. When testimony is incorrect, I’d like to know how you would like it to be handled.

Judge: Regulations say right to rebuttal. Regulations say something very pointed and require interpretation of agency rules. I’dike little more up front approach. If parties, after reviewing profile, could examine witnesses and judge their qualifications. Parties have a chance to examine qualifications of witnesses.

BG: The transcript will be available in two and half weeks. So how can parties review before next session?

Judge: Parties know schedule, have to live within schedule.
VanCott: In Ray Brook we have ability for web casts live.

Judge: In first round, for people who want to oppose rebuttal witness, must be deadline for comments. Rebuttal witness offered in advance and people must have chance to discuss appropriateness of that witness.

Caffry: What if stuff comes up? Can we have fairly free rebuttals of experts.
Judge: If all experts here, a party says his witness here and would like to offer a rebuttal and we already know that person’s qualifications.

Judge: If offering a new witness, we must know that in advance. If want to discuss on record, willing to do. Must be flexible.
Next filing date April 13. So on that day have pre-file direct testimony to Group #2 issues. Parties have time to file new rebuttal witnesses. No pre-file testimony requirement on rebuttal.
Dan McClelland: No longer would people be pulled from the gallery to testify?
Judge: Not necessarily, but all rebuttal witnesses would be identified in advance and qualifications examined. If last minute, then delay so qualifications could be examined. Rebuttal witness may be offered and with that would come person’s name and qualifications (resume sufficient) and if non-expert, some offer of proof why they can testify (basis of testimony) and scope of testimony. Party may offer rebuttal witness, and parties can respond in writing. Hope that I could know as soon as possible. So motions should be filed at the conclusion of each session. Otherwise would prolong unnecessarily Before session adjourns, like to know notice of witness is coming.
Caffry: Don’t have problem. But sometimes testimony so off wall, fact correction is needed.
TU: Sounds okay on paper. But we do have target end date for this procedure. Trust everyone will work towards achieving that day, not extending hearings. Hopefully everyone will work toward that end.

Judge: If someone makes a motion, I need to address.
How does that sound. Advising dates for Group #2 are April 21 at noon.
TU: When sending out large sets to 35 people, takes many days to arrive. Some do not even get them.

Second date for Group #3 is May 19. If something occurs during hearing, simplest rule to notify ALJ of motion to call a rebuttal witness.

Back on record:
Judge: After off record discussion, parties and I worked out rules for rebuttal witnesses. With respect to #2 issues, parties to advise to offer rebuttal witnesses by April 21. With respect to June meeting, rebuttal witness by May 19: name, qualifications and expected scope of rebuttal. In event after examination of parties, at proceeding party wishes to offer rebuttal witness. Must notify judge by last hearing date that will be requesting rebuttal witnesses.

Judge extended his thanks to town and village of Tupper Lake and Next Stop! Tupper Lake for use of these facilities.

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