Chautauqua Institution Opposes Suit Intervention

BUFFALO — The Chautauqua Institution opposes the intervention of the Chautauqua Lake Partnership to the institution’s lawsuit against the town of Ellery and state Department of Environmental Conservation.

Documents filed Monday in state Supreme Court in Erie County give four reasons for opposition to the CLP’s motion to intervene in the lawsuit. The memorandum of law filed by Laurie Styka Bloom, the lawyer representing Chautauqua Institution in the lawsuit, states it would be unethical to allow Rupp Baase Pfalzgraf Cunningham LLC attorneys to represent the CLP in the lawsuit since it also was the principal author of the Supplemental Environmental Impact Statement that Chautauqua Institution is trying to have nullified in court. Judge Donna Siwek will hear arguments in the town of Ellery’s motion to move the lawsuit to state Supreme Court in Chautauqua County starting at 9:30 a.m. today.

Arguments on the Chautauqua Lake Partnership’s motion to intervene in the lawsuit are scheduled for 9:30 a.m. Nov. 14.

“Here, Rupp Baase as counsel for CLP was intricately involved in the preparation of the SEIS and authored the document that is at the heart of the issues in this case,” Bloom wrote. “In the very likely event that determination of the merits of this case requires examination of the details underlying the preparation of the SEIS and its legal sufficiency, Rupp Baase will be front and center in addressing these central and seminal issues. If CLP is permitted to intervene, the result would be that Rupp Baase would fe’ction in the dual capacity as attorney for intervenor and a material witness. That is not only impermissible under the rules of ethics, but it implicates attomey-client and work-product privileges that will only serve to overcomplicate and delay the resolution of this matter. Such assertions would severely prejudice Petitioner in its picsecution of this action and would in essence allow the use of privilege as a sword rather than the shield it is.”

Consideration of such issues is immaterial, Bloom writes, because the Supplemental Environmental Impact Statement at issue is the legal responsibility of the lead agency, which, in this case, was the town of Ellery. Ellery last week cited a case decided in state Supreme Court in Chautauqua County as a reason to move the institution’s case to Chautauqua County. Bloom cites the same case as a reason why the Chautauqua Lake Partnership should not be an intervener in the institution’s lawsuit. Rather than being allowed to intervene, Bloom argues the CLP can support the town of Ellery by working with its attorneys and by helping pay for Ellery’s attorneys.

“While petitioner disputes that the prior Arnn litigation, to which petitioner was never a party (and which was dismissed as unripe and not on the merits), is a related case (and will address that issue in response to the town of Ellery’s motion to change venue), it is worth of note that CLP did not move to intervene in the Arnn matter or even to act as an amicus. Nor does CLP claim now (and did not claim in Arnn) that it is a “necessary party” to proceedings regarding the SEIS or SEQR process.”

Bloom also argues the motion to intervene is premature because both the Department of Environmental Conservation and the town of Ellery have filed motions to dismiss the lawsuit on procedural grounds and for alleged failure to state a claim. The motion to intervene would be better decided after Judge Donna Siwek rules on the motions to dismiss the claim.

“CLP likewise has attempted to file a motion to dismiss, despite the fact that it has not been granted permission to intervene,” Bloom wrote. “The grounds asserted by CLP in its motion to dismiss are redundant of those asserted by Ellery and/or DE cand provide no basis for intervention at this time.”

Bloom also argues the motion to intervene was filed too late by the CLP given that the petition was filed in Erie County Supreme Court on July 30 and parties were served on Aug. 3. Bloom’s memorandum of law states it was unfair for the Chautauqua Lake Partnership to wait 60 days to bring a motion to intervene and then give the institution a scant few days to respond and that the motion should be declined because the CLP’s motion did not include a proposed pleadng setting forth a claim or defense that is the basis for the intervention other than a motion to dismiss.

A final argument made against the CLP’s intervention is that the CLP is no different from other lake organizations who are not represented in the courtroom. The institution’s petition will examine and address environmental issues related to whether use of herbicides is the proper method to address Chautauqua Lake’s weeds or if other alternatives have been explored; if the SEIS properly examined what herbicides to use, in what concentrations and at what time of year; if the SEIS adequately examined the effects herbicide use has on fish and plant life in the lake; if the SEIS examined the effect of herbicides on drinking water; and if herbicides could create new problems including harmful algal blooms.

“Simply put, CLP has not established any “real” or “substantial” interest in the outcome of this Article 78 proceeding,” Bloom wrote. “It is, in essence, a financier seeking to protect its inve¯tment. It is not, however, the entity responsible for issuing the SEIS (Lead Agency Ellery) or the entity responsible for issui’g the permits based on the SEIS (DEC). As such, its presence is not required and is nothing more than an effort to micromanage this matter.”

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