Court Dismisses Institution Lawsuit

Weeds are pictured from the end of Densmore Avenue in Ellicott earlier this year. P-J file photo

The case of Chautauqua Institution v. the Town of Ellery and the New York State Department of Environmental Conservation in regard to having what was called an unscientifically sound Supplemental Environmental Impact Statement prepared for the permits of herbicide applications in Chautauqua Lake has been dismissed in New York State Supreme Court.

Judge Donna Siwek delivered the decision in favor of the motions to dismiss brought by the DEC, Town of Ellery and the intervenor-respondent Chautauqua Lake Partnership. Reasoning for the dismissal was due to Chautauqua Institution’s petition being “too late and moot with respect to the 2018 administrative process for herbicide permits and too early for any yet to be filed permit applications for 2019” as written in the ruling.

Siwek wrote that Chautauqua Institution did not challenge the issuance of the June 2018 permits, which resulted in the treating of waters in Chautauqua Lake in the towns of Busti, North Harmony and Ellery.

As such, Siwek wrote that petitioner limits are restricted to the challenges against the SEIS that was a part of the process that led to permits being allocated. The ruling described how the SEIS is not seen as the final administrative action.

“The SEIS/Findings Statements did not result in a definitive position on the action that inflicted an actual or concrete injury,” Siwek wrote in the ruling.

Furthermore, Siwek wrote that since all June 2018 permit activities have already occurred and no one person or entity sought “injunctive relief seeking to bar the application of the herbicides,” the case was determined moot.

Attorneys for Chautauqua Institution argued that the petition was filed in a timely manner and that their petition raises questions of general public interest. Chautauqua Institution’s Vice President of Marketing and Communications, Emily Morris, said her organization was disappointed by the judge’s ruling and disagrees with it but that it is somewhat glad it was able to communicate its concerns.

She described the legal actions taken as a means of making the science factual and collaborative. She hopes there are opportunities to do that in the future, so Chautauqua Institution can avoid having to take further legal action. She said she hopes that Ellery as the lead agency for this process will want to further communicate about the SEIS and future herbicide permits. She said no party wants to delay the permitting process for potential 2019 herbicide applications, something CLP already has permission from lakefront municipalities to go forward with and start working with the DEC.

“Maybe that’s possible,” Morris said in regard to working with the other parties, including the Town of Ellery.

Morris said Chautauqua Institution doesn’t believe the merit of its case has been determined illegitimate. She said that they have been able to reveal how the SEIS might be inadequate and hopes Ellery will be agreeable to fixing it in the future, so that concerns about “potentially dangerous chemicals in our shared waterways are based in sound science,” Morris said.

“Of course we are disappointed in the judge’s ruling about the timeliness of our petition,” Morris said. “In so doing, she did not rule on the merits of our petition, which are widely regarded as sound and actionable.”

Ellery Town Supervisor Arden Johnson addressed the news of the dismissal with gratitude and specifically thanked Siwek for her due diligence. He carried with him relief that the lawsuit will no longer affect the town budget or negatively impact taxpayers.

“I certainly hope this doesn’t happen again,” Johnson said. “I would hope in the future that the institution would stop these frivolous lawsuits. It’s very costly to the towns and individuals they’re suing.”

Johnson said the town would be interested in collaborating in the future and is glad to hear Chautauqua Institution wants to talk things out and work toward effective solutions for Chautauqua Lake. As of now, both parties are willing to meet and discuss things further without future legal action.

“That’s one of the problems with the lake: there’s too many organizations trying to come up with too many ideas,” Johnson said. “We will work with anyone to try to get things resolved.”

Siwek also decided that the court has no power to issue an advisory opinion on whether the 2018 SEIS can be a basis for decisions regarding 2019 herbicide applications made by municipalities and the DEC. The DEC has not yet received permit applications for the New Year but should soon according to the CLP. The judge said that since the exact circumstances of the lake and permit applications are not yet known for 2019, it will first be up to the DEC to make any decisions on there needing to be additional environmental review. Chautauqua Institution could again petition if they believe the process is inadequate.