For Petitioners: Thomas S. West, Esq., The West Firm, Albany, NY. For Respondents1: Joshua M. Tallent of counsel, The Capitol, Office of the Attorney General, Albany, Albany, NY. Karla Williams Buettner, of counsel, Bartlett, Pontiff, Stewart and Rhodes, P.C., Glens Falls, Glens Falls, NY also appeared on behalf of respondent Lake George Park Commission. Synopsis by the Court: The Court previously granted a preliminary injunction barring the Lake George Park Commission [LGPC] from undertaking any ProcellaCOR applications to Lake George pending the conclusion of this proceeding. In now finding that respondents actions were arbitrary and capricious in failing to provide an impartial presentation to the Adirondack Park Agency board members who were required to vote on the proposal, the Court vacated the previously issued permits. The Court necessarily had to analyze the issue of mootness in rendering this decision since the permits had now expired, finding that the exception to the mootness doctrine applied as the issues presented are novel and substantial and were likely to recur. Hon. Robert J. Muller, J.S.C Chair — Bench Book for Trial Judges — New York Warren County Courthouse 1340 State Route 9 Lake George, New York 12845 Telephone: (518) 480-6346 Decision is saved as Decision and Judgment — and is dated March 3, 2023 for Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules and Injunctive Relief. DECISION AND JUDGMENT lake George — often referred to as “The Queen of American Lakes” — is roughly 32 miles in length and 28,000 acres in size. It is classified by the New York State Department of Environmental Conservation (hereinafter the DEC) as AA-Special (AA-S) for its fresh surface waters. Eurasian watermilfoil (hereinafter EWM) is an aquatic invasive plant that is not native to the United States. It has been found in numerous locations in Lake George since the 1980s, presumably because of plant fragments being transported on boats and trailers. EWM is very difficult to eradicate once it is established, as there are no natural predators to keep the population in check, the roots must be completely pulled or killed to prevent regrowth, and removal typically creates fragments that propagate and exacerbate the spread of the species. EWM grows densely at the surface of the water, making recreation difficult. It also prevents sunlight from penetrating into the water column and chokes out other vegetation. Annual die-back of EWM can occur over a very short timeframe, which results in a significant amount of plant decay, potentially leading to algal blooms and other water quality impacts. Suffice it to say that all parties to this dispute agree that EWM is dangerous to the pristine waters of Lake George and must be eradicated. In 2016, respondent NYS Adirondack Park Agency (hereinafter APA) issued a permit to respondent Lake George Park Commission (hereinafter LGPC) for the use of hand harvesting and benthic matting in the removal of EWM from Lake George. Hand harvesting involves divers manually pulling the plant and root systems from the lakebed. In areas with large multi-stemmed plants, hand harvesting also involves the use of a vegetation conveyance device known as a Diver Assisted Suction Harvester (hereinafter DASH); this is a vessel which acts as a large vacuum cleaner to transport harvested plants out of the water. Benthic matting involves the laying of mats over beds of EWM. Benthic matting is successful at eradicating the EWM beneath the mats, but it also kills all other plant species. Hand-harvesting has proven most successful at eradicating EWM in Lake George, but it is labor-intensive and expensive, requiring millions of dollars in funding over the years. ProcellaCOR EC (hereinafter ProcellaCOR) is an aquatic herbicide used in the management of EWM. It was approved by the United States Environmental Protection Agency in February 2018 and then by the DEC in February 2019. Review by the DEC “involved review by the Bureau of Ecosystem Health and the Division of Health and Wildlife for ecotoxicity” [Ziemann Affidavit, at 19]. It has also been reviewed by the New York State Department of Health (hereinafter DOH) to ensure no human health concerns. New Hampshire has used ProcellaCOR on 43 separate occasions to manage EWM in its lakes, and Vermont has used it on 18 occasions. In New York the herbicide has been used in Chautauqua Lake, Glen Lake, and Minerva Lake, among others. On February 22, 2021, in response to a request from the LGPC, the APA opened a pre-application file relative to a draft proposal for the application of ProcellaCOR to eradicate EWM from Blairs Bay and Sheep Meadow Bay in Lake George — both of which include wetlands. In this regard, the Freshwater Wetlands Act requires a permit from the APA for the application of an herbicide in wetlands (see ECL 24-0801; 9 NYCRR 578.2, 578.3 [n] [2] [i]). Blairs Bay and Sheep Meadow Bay are approximately 8 miles apart, with both located in the Town of Hague on the northeastern side of Lake George. On May 24, 2021, staff members of the APA, LGPC, DEC, petitioner Lake George Association (hereinafter LGA) and SOLitude Lake Management (hereinafter SOLitude) — an aquatic herbicide applicator and consultant for the LGPC — met to discuss the proposal. Staff members of the APA, LGPC and LGA thereafter conducted a site visit to the Bays on July 28, 2021. The wetland in Blairs Bay was assigned a value rating of 1 due to the presence of alternate-flowered water milfoil — listed as threatened in this State — and the wetland in Sheep Meadow Bay was assigned a value rating of 3 (see 9 NYCRR 578.5).2 Applications for the use of ProcellaCOR in Blairs Bay and Sheep Meadow Bay were thereafter submitted to the APA on January 7, 2022. Specifically, in Blairs Bay the LGPC proposed to apply up to 4.2 gallons of ProcellaCOR within a 4-acre area, including a 0.33+ acre wetland. In Sheep Meadow Bay the LGPC proposed to apply up to 4.77 gallons of ProcellaCOR within a 3.6-acre area, including a 0.5+ acre wetland. The LGPC proposed to complete the treatments between May 17 and June 30, 2022. On January 11, 2022, the APA notified adjoining landowners that the applications had been received. The APA then issued notices of incomplete permit applications for both project sites on January 25, 2022. These notices requested additional vegetative survey information, revisions to the site mapping, explanations of efforts to avoid and minimize impacts to wetlands, and additional details of the proposed herbicide use, among other materials. The APA received all requested additional items on or about February 18, 2022 and, on March 3, 2022, all interested parties were advised that the applications had been deemed complete and written comments would be accepted until March 31, 2022. The APA thereafter received 325 comment letters, with 300 in opposition to the project and 22 in support. The comment letters in opposition included a 15-page letter dated March 31, 2022 from the LGA and petitioner Lake George Waterkeeper. Their concerns included, inter alia, that the ProcellaCOR applications would spread beyond the Bays, lead to harmful algal blooms, and unduly harm native plants and invertebrates. Hundreds of form letters were also submitted by “strong supporter[s] of the [LGA]” [see e.g. R1875-2575],3 the majority of whom own homes on Lake George and supplemented their submissions with stories of their own personal use and enjoyment of the Lake. Additionally, an 11-page letter dated March 31, 2022 was submitted by Carol D. Collins, Ph.D., a liminologist who has “dedicated [her] professional life to studying and protecting Lake George” [R1923]. Collins expressed the following concerns: “The species richness of Lake George includes over 50 macrophyte species…, and hundreds of phytoplankton, fish zooplankton and benthic invertebrates. ProcellaCOR has not provided any findings on pre-and post-treatment for most macrophytes, algae, fish, benthic invertebrates or zooplankton native to Lake George. With only a limited number of peer-reviewed toxicology tests on a limited number of species, the fate and effect of florpyrauxifen-benzyl on plants and animals in the Lake George ecosystems is unpredictable and immeasurable” [R1926].4 Petitioner Town of Hague also submitted a resolution passed by its Town Board “opposing the application of ProcellaCOR in Lake George at this time” [R1176]. On April 1, 2022, David Wick, the Executive Director of the LGPC, submitted a document to the APA summarizing the ecological and other benefits to be derived from the proposed application of ProcellaCOR. He then submitted a document to the APA on April 6, 2022 in response to the several comment letters received in opposition to the project. Wick stated, inter alia, that the particle model relied upon by the LGA and Lake George Waterkeeper in demonstrating that the ProcellaCOR will spread beyond the bays is “misleading and inaccurate” [R1166], as it fails to account for product dilution. Wick further stated that use of ProcellaCOR will in fact reduce the risk of harmful algal blooms, explaining as follows: “ProcellaCOR treatment occurs early in the growing season when the plant is at 10-20 percent of its total potential biomass, greatly reducing annual nutrient release associated with natural EWM senescence by 80-90 percent in the treatment year. Not only is the plant biomass die off considerably less following a ProcellaCOR treatment, but this die-off only happens one time in the weeks following treatments. Conversely, these milfoil beds if not treated would grow to their maximum extent, and then die off, with a much large nutrient release due to the larger biomass” [R1168]. Aaron Ziemann — a project analyst for forest resources for the APA — provided a presentation relative to the proposals to the board during their public meeting on April 14, 2022, recommending that the applications be approved with conditions including post-treatment monitoring and plant surveys.5 He further recommended that the permits be issued without the necessity of a public hearing. Following a discussion which reflected an obvious divide among the board members, the applications for ProcellaCOR treatments in Blairs Bay and Sheep Meadow Bay were approved — as recommended — in a 6-4 vote. Meanwhile, on January 7, 2022, the LGPC submitted two applications to the DEC for permits to apply ProcellaCOR for the management of EWM in Lake George, one for Blairs Bay and one for Sheep Meadow Bay. In this regard, anyone seeking to apply a pesticide to control or eliminate aquatic vegetation must obtain a permit from the DEC (see 6 NYCRR 327.1). Following review of the requisite issues — namely, the registration status of ProcellaCOR, that ProcellaCOR is labeled for use as proposed in the DEC permit applications, and that the pesticide application rates, dosage rates, and amounts specified in the DEC permit applications comply with the ProcellaCOR label — permits were issued on March 10, 2022, with the DEC authorizing the LGPC to use (1) up to 4.2 gallons of ProcellaCOR in up to 4 acres of Blairs Bay at a dosage rate not to exceed 12.68 fluid ounces per acer foot; and (2) up to 4.78 gallons of ProcellaCOR in up to 3.6 acres of Sheep Meadow Bay at a dosage rate not to exceed 12.68 fluid ounces per acer foot. On May 12, 2022, this CPLR article 78 proceeding was commenced by the LGA, Lake George Waterkeeper, Town of Hague and petitioner Helena G. Rice, who owns property immediately adjacent to the treatment area in Sheep Meadow Bay. Petitioners challenge the APA’s issuance of the permits authorizing the application of ProcellaCOR to the wetlands in Blairs Bay and Sheep Meadow Bay, setting forth eight causes of action: (1) APA staff failed to uniformly notice all public comments as one package for review, failed to provide board members with the number of public comments actually received, and failed to accurately summarize the substance of the comments in opposition to the application. (2) While Blairs Bay and Sheep Meadow Bay are in the Town of Hague, the land adjoining Blairs Bay is located in the Town of Dresden, Washington County and the land adjoining Sheep Meadow Bay is located in the Town of Putnam, Washington County. The failure to include this information in the notices sent to adjoining landowners was a violation of lawful procedure. (3) The approval process was rushed by the APA and was significantly lacking in comparative analysis. (4) Both permits include a provision indicating they need not be recorded with the County Clerk, in contravention of Executive Law (hereinafter APA Act) §809 (7). (5) The APA failed to recognize the current DASH management program for EWM in Lake George as an alternative to the application of ProcellaCOR, in contravention of 9 NYCRR 578.10. (6) Notwithstanding the myriad of public comments received in opposition to the project and the scientific evidence presented, the APA made no effort to seek additional information before approving the permits. (7) The DEC’s designee is a voting member of the board of the APA and should have recused from the vote on April 14, 2022; and (8) The APA should have held a public hearing before approving the permits, as provided under APA Act §809 (3) (d). Petitioners simultaneously moved by Order to Show Cause for a preliminary injunction barring the LGPC from undertaking any ProcellaCOR applications to Lake George pending the conclusion of the proceeding. This motion was granted by Decision and Order dated June 13, 2022, with petitioners directed to post an undertaking in the amount of $100,000.00 (76 Misc 3d 925 [Sup Ct, Warren County 2022]).6 The matter is now fully submitted, with Adirondack Council, Inc. having been granted leave to appear as amicus curiae by Order dated January 13, 2023. Briefly, the Court notes that petitioners have withdrawn their second, fourth, and seventh causes of action and, as such, these need not be addressed. Petitioner has further discontinued the proceeding as against the DEC.7 Before proceeding to the merits of the remaining causes of action, two preliminary issues raised by respondents must be addressed: (1) whether the issues raised in this proceeding are moot; and (2) whether petitioners have standing and legal capacity to sue. Mootness Doctrine Turning first to whether the issues raised in this proceeding are moot, it is undisputed that the permits — which required the ProcellaCOR applications to take place in the respective Bays prior to June 30, 2022 — have now expired. That being said, respondents contend that the Court should nonetheless consider the issues raised, a contention supported by petitioners. “As a general principle, courts are precluded ‘from considering questions which, although once live, have become moot by passage of time or change in circumstances’” (City of New York v. Maul, 14 NY3d 499, 507 [2010], quoting Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 714 [1980]). That being said, an exception to the mootness doctrine exists “where the issues are substantial or novel, likely to recur and capable of evading review” (City of New York v. Maul, 14 NY3d at 507; see Matter of Hearst Corp. v. Clyne, 50 NY2d at 715; Matter of M.B., 6 NY3d 437, 447 [2006]; Mental Hygiene Legal Servs. v. Ford, 92 NY2d 500, 506 [1998]). Here, the issues raised by petitioners are not only substantial and novel — with neither ProcellaCOR nor any other herbicide having previously been used in Lake George — but they are also likely to recur. In this regard, respondents have submitted the affidavit of Wick, who states that “the [LGPC] plans to re-apply to [the] APA for permits to apply ProcellaCOR in Sheep Meadow Bay and Blairs Bay in 2023[, and] anticipates that the permit applications will be very similar to the 2022 permit applications” [Wick Affidavit, at 4]. With any future permits likely to impose a short window for application of the herbicide, the issues are capable of evading review as well. The Court therefore finds that the issues in this proceeding fall within the exception to the mootness doctrine and will proceed with consideration of the same (see City of New York v. Maul, 14 NY3d at 507). Standing/Capacity to Sue Turning now to the issues of standing and legal capacity, respondents contend that the LGA and Rice are without standing to sue and, further, that the Lake George Waterkeeper and the Town of Hague lack legal capacity to sue. Each contention will be addressed ad seriatim. Initially, respondents contend that the LGA has not submitted an affidavit from one of its members nor alleged in its petition that any individual member suffered a direct injury within the zone of interests protected by the Freshwater Wetlands Act and, as such, it has failed to establish its standing. The Court, however, finds this contention to be without merit. In Society of Plastics Indus. v. Suffolk (77 NY2d 761 [1991]), it was held that “in land use matters…the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large” (id. at 774). It was further held that “in cases involving environmental harm, the standing of an organization [can] be ‘established by proof that agency action will directly harm association members in their use and enjoyment of the affected natural resources’” (Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 NY3d 297, 304-305 [2009], quoting Society of Plastics Indus. v. Suffolk, 77 NY2d at 775). Here, the petition alleges as follows: “[the LGA] is a not-for-profit corporation organized under the laws of the State of New York having as its principal purpose: ‘world-class science and freshwater research, public and private partnerships, community education, public policy advocacy and direct investments in protection programs and activities to deliver unsurpassed level of care’ for the protection of Lake George. As such, the LGA has the responsibility on behalf of its supporters to not only use science and research to guide solutions to safeguard Lake George and its basin, but also to assure the proper implementation of State laws, rules and regulations protecting this highly valuable resource and watershed. The LGA, founded in 1885 as the first lake conservation organization in the country, has [almost] 3,700 individual supporting members, nearly all of whom reside or own property in the Lake George basin and participate in the recreational activities offered in that region and many utilize Lake George as a drinking water supply. Many of the LGA’s members are residents and landowners in the Towns of Hague, Putnam and Dresden” [Petition, at 4]. Indeed, these allegations are fully supported by the affidavits submitted in support of the petition as well as the record itself. The Court thus finds that petitioners have established that the permits issued by the APA may directly harm LGA members in their use and enjoyment of Lake George. The Court further finds that the injuries alleged fall squarely within the zone of interests protected by the Freshwater Wetlands Act, with ECL 24-0801 (2) — which pertains to the review of applications for “[p]ermits for wetlands in the Adirondack Park” — providing as follows: “The [APA] shall review the application…, having due regard for the declaration of policy and statement of findings set forth in this article and for the considerations set forth in subdivision one of section 24-0705 of this article. The [APA] shall in addition determine prior to the granting of any permit that the proposed activity will be consistent with the Adirondack [P]ark land use and development plan and would not have an undue adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the [P]ark, taking into account the economic and social or other benefits to be derived from the activity.” ECL 24-0103 — entitled “Declaration of policy” — then provides: “It is declared to be the public policy of the state to preserve, protect and conserve freshwater wetlands and the benefits derived therefrom, to prevent the despoliation and destruction of freshwater wetlands, and to regulate use and development of such wetlands to secure the natural benefits of freshwater wetlands, consistent with the general welfare and beneficial economic, social and agricultural development of the state.” ECL 24-0105 — entitled “Statement of Findings” — further provides, in pertinent part: “7. Any loss of freshwater wetlands deprives the people of the state of some or all of the many and multiple benefits to be derived from wetlands, to wit:… “(b) wildlife habitat by providing breeding, nesting and feeding grounds and cover for many forms of wildlife, wildfowl and shorebirds, including migratory wildfowl and rare, endangered or threatened species, fish, reptiles and amphibians, insects and other invertebrates; “(c) protection of subsurface water resources and provision for valuable watersheds and recharging ground water supplies; “(d) recreation by providing areas for hunting, fishing, boating, hiking, bird watching, photography, camping and other uses;… “(g) education and scientific research by providing readily accessible outdoor bio-physical laboratories, living classrooms and vast training and education resources; “(h) open space and aesthetic appreciation by providing often the only remaining open areas along crowded river fronts and coastal Great Lakes regions; “(i) sources of nutrients in freshwater food cycles and nursery grounds and sanctuaries for freshwater fish; “(j) preservation of plant species that are rare, endangered or threatened, or exploitably vulnerable as defined in section. 9-1503 of this chapter; and “(k) preservation of communities of plants and animals that are deemed by the commissioner to be rare in the state or in a region of the state. “8. Regulation of freshwater wetlands, in accordance with the agricultural exemption established in title seven hereof, is consistent with the legitimate interests of farmers and other landowners to graze and water livestock, make reasonable use of water resources, harvest natural products of the wetlands, selectively cut timber and otherwise engage in the use of land for agricultural production.” Finally, ECL 24-0705 (1) provides that “[i]n granting, denying or limiting any permit, the local government or the commissioner shall consider the effect of the proposed activity with reference to the public health and welfare, fishing, flood, hurricane and storm dangers, and protection or enhancement of the several functions of the freshwater wetlands and the benefits derived therefrom….” Here, the injuries alleged include potential harm to the native plants and invertebrates present in the wetlands of Blairs Bay and Sheep Meadow Bay, as well as the potential for harmful algal blooms in these Bays — both of which could negatively impact the Lake George ecosystem. Under the circumstances, the LGA clearly has standing (see Society of Plastics Indus. v. Suffolk, 77 NY2d at 775; Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 NY3d at 304-305; Matter of Jorling v. Adirondack Park Agency, __ AD3d __, 2023 WL 2315541, *2 [3d Dept March 2, 2023]). Respondents next contend that Rice is without standing because the injury she alleges does not fall within the zone of interests protected by the Freshwater Wetlands Act. The Court finds that this contention is also without merit. Rice has submitted an affidavit stating as follows: “[My] property is located immediately adjacent to the treatment area…labeled by the APA and LGPC as ‘Sheep Meadow Bay.’ [I] have three water intakes that service [my] property that are located within the treatment area. The water drawn from Lake George is used for [my] gardens, irrigation, bathing, and potable water purposes. In addition, [I] have a beach that is adjacent to the treatment area and is used by young children for swimming and recreation. Finally, it is important to mention that [I] have a protected riparian area and a large stream that runs through [my] property and into Lake George. This stream provides significant flow into the bay that is likely to impact the proposed herbicide treatment. “I and my family members are very concerned that water drawn from the treatment area will adversely impact our gardens, our pets and all persons who utilize our property” [Rice Affidavit, at
