Forest Preserve, Ni-Mo, Exclusive Use, & Funding Issues

Forest Preserve

Classification of the Buffer Area

One of the core issues facing Permit Holders around the Sacandaga Lake is the classification of the State land surrounding the lake known as the Buffer Zone. The Adirondack Park Agency (APA) currently identifies the Buffer Zone as "Pending Classification" indicating that these State lands are under the jurisdiction of the Hudson River - Black River Regulating District.

The New York State Department of Environmental Conservation (DEC) has suggested that this land be considered Forest Preserve and that the Permit Holders no longer be granted exclusive use of the Buffer Zone. The DEC further suggested bans on landscaping, mowing of grass, and the placement of picnic tables, flags, fireplaces, etc. within the Buffer Zone.

The impact of any change to the use of the Buffer Zone by the Permit Holders would have far reaching impacts not only on the Permit Holders, but for the surrounding communities as well. One of the obvious impacts will be on tax assessments around the lake. Without the exclusive use of the Buffer Zone property, tax values would surely have to decline resulting in property tax increases within the surrounding communities.

The SPC's law firm has met with the HRBRRD and the DEC regarding this issue and continues to consider potential resolutions for this issue. Read the law firm's opinion on this issue here.

Niagara-Mohawk Lawsuits - Updated March 2015

Having spent many thousands of dollars on attorneys' expenses, the Sacandaga Protection Committee (SPC) emerged victorious when Senior U.S. District Judge Norman A. Mordue granted the SPC's motion for Summary Judgment against Niagara Mohawk Power Corp. (d.b.a. National Grid). This was a major victory for the SPC and the entire lake community.

In 2009, Niagara Mohawk (NM) filed a lawsuit in Federal Court against the Hudson River-Black River Regulating District (HRBRRD) challenging the authority of the District to charge NM for the benefits NM derives from the Conklingville Dam for property NM owns on the Hudson River. In the lawsuit NM claimed that privately-owned properties and permit holders surrounding the Great Sacandaga Lake (GSL) "are beneficiaries and should be assessed" the same as all downstream beneficiaries. NM also made a number of additional causes of actions, including "preemption", "equal protection", and "taking claims".

The SPC and its legal representatives Hodgson Russ took major exception that permit holders should be subject to the same beneficiary assessments as the downstream beneficiaries. The SPC legal team filed for and was granted intervenor status to gain protection to the rights of the property owners on and around the Great Sacandaga Lake.

As part of its case against the HRBRRD, Niagara Mohawk claimed that the District's current permit system is illegal and/or preempted by the Federal Power Act. The SPC was concerned that the rights of its constituents would be affected by the outcome of the litigation and possible abolishment of the existing permit system. Niagara Mohawk opposed the inclusion of the citizen's group (SPC) in the proceedings, while the Regulating District took no position on the motion by SPC.

Recognizing that the HRBRRD had previously filed a motion for summary judgment which would end the proceedings, Chief Judge Norman A. Mordue approved the SPC's participation in order to give the citizens' group an opportunity to fully present its interests to the Court. In his opinion, Chief Judge Mordue expressly recognized SPC's ability to contribute to the lawsuit as well as its track record of representing the entire lake community. "SPC was well organized . . . to launch a legal and political fight to ensure the current permit access system remained unchanged."

In the Court's discussion of the facts of the case, Chief Judge Mordue recognized that rights granted under the permit system are reflected in the high property values of lakefront properties. The SPC argued in this litigation and in other efforts that these property values directly benefit the local economy through a stable tax base. Conversely, elimination of the permit system would lower the taxes on property immediately around the lake and cause a corresponding increase in property taxes for all properties in Fulton, Hamilton and Saratoga counties where the lake is located.

In its motion, the SPC expressed concern that the HRBRRD had various and serious fundamental financial problems which could affect its ability to effectively defend the litigation. Although the Court did not directly rule on this issue, Chief Judge Mordue recognized that the interests of the SPC and the HRBRRD diverge such that the SPC had a legally recognizable interest that had not been represented in the litigation: "It is apparent that SPC and District have sufficiently different interests insofar as the present litigation is concerned . . . While both parties may have an interest in preserving the District's permit system, the District may not be interested in preserving the permit system as it exists presently . . ."

On September 30, 2010, Judge Mordue issued a decision dismissing National Grid's latest attempt to avoid shouldering its share of the costs for maintaining Great Sacandaga Lake and the Conklingville Dam. In the suit, National Grid claimed that many of the Hudson River-Black River Regulating District's operations, including the GSL permit system, were preempted by federal law and contrary to the United States Constitution.

Following several months of briefing by the Sacandaga Protection Committee's attorneys, Hodgson Russ LLP, and the Hudson River-Black River Regulating District, the Court dismissed National Grid's lawsuit in its entirety. In rejecting National Grid's arguments, Judge Mordue specifically noted the contribution of the Sacandaga Protection Committee, which intervened in the litigation to represent the interests of "both front lot and back lot property owners as well as business and recreational users of Great Sacandaga Lake."

According to Sacandaga Protection Committee Co-Chair Joseph Sullivan, of particular importance of the victory is the dismissal with prejudice of the attack on the permit system. "This is very important for our entire community. The suit, if successful, would have eliminated the GSL permit system, leaving the Great Sacandaga Lake shore area without management and eliminating 70 plus years of permitted access to the band of land surrounding the lake." The Court decision protects the investment generations of Sacandaga Protection Committee members have made in improving the lakefront.

Co-Chair Richard Smith explained that, "We are extremely pleased that Judge Mordue seemed to recognize the rights of lake users and property owners over big businesses." Smith continued, "In many ways, this decision validates the mission of the Sacandaga Protection Committee, and Judge Mordue placed a lot of weight on the arguments our attorneys made while, at the same time, flatly rejecting National Grid's arguments as 'largely irrelevant'." Smith added that the decision was especially important in light of the District's ongoing financial difficulties.

However, the saga was not over. National Grid appealed the ruling to the U. S. Court of Appeals in 2011 and it was sent back to the U. S. District Court for further proceedings.

On December 2, 2011 attorneys for the Sacandaga Protection Committee argued to preserve the Great Sacandaga Lake Permit System at oral argument before a three judge panel of the United States Court of Appeals for the Second Circuit in New York City.

In the case, titled Niagara Mohawk Corporation v. Hudson River-Black River Regulating District, the plaintiff power company sought a refund of more than $5 million in assessments paid to the regulating district plus interest. Niagara Mohawk also argued that the Federal Power Act preempts virtually all of the regulating district's activities, including the operation of the Great Sacandaga Lake Permit System, maintenance of the watershed, and even flood control.

Niagara Mohawk also asserted that SPC constituents should pay greater costs to the Regulating District as a beneficiary. SPC was represented at oral argument by its attorneys from Hodgson Russ LLP, with Benjamin K. Ahlstrom joining attorneys for the Regulating District in arguing against Niagara Mohawk's claim. SPC, with the Regulating District, had earlier prevailed before the Federal District Court in a decision by U. S. District Court Judge Norman A. Mordue. It is this decision that Niagara Mohawk appealed.

Accepting legal arguments raised by attorneys for the Sacandaga Protection Committee and the Hudson River-Black River Regulating District, the U. S. Court of Appeal for the Second Circuit issued a decision affirming some parts of the District Court's decision, but sent the remainder of the suit back to the District Court for further proceedings. All items that directly affected the permit system and the issue of whether or not the permittees were beneficiaries and should be assessed were settled when Judge Mordue granted the Sacandaga Protection Committee's motion for Summary Judgement against Niagara Mohawk in September of 2015.

SPC's Motion to Intervene contains information about the permit system that permit holders should be aware of and that provided the U. S. District Court to allow the Sacandaga Protection Committee to participate in the proceedings. It can be downloaded here.

Exclusive Use

HRBRRD Stands Behind Re-instatement of Exclusive Use - January 19, 2011

The Regulating District has started issuing permit renewals for 2011. As anticipated, based on the Board's action last May, the permits once again include the Exclusive Use language that had been missing for the last few years. We are obviously pleased with the Board's decision to re-instate the Exclusive Use policy; however, we recognize that there is more work to be done with respect to enforcement of the current policy and establishing a permanent long-term solution to resolve this issue.

Lake district restores 'exclusive use' to permits - January 19, 2011 (Recorder)

News Regarding Exclusive Use - October 25, 2010

The issue of Exclusive Use is the number one priority of the SPC. We are working with the Governor’s office and the NYS Senate and Assembly to bring a legislative solution to this matter. Our lawyers and lobbyists are ready to continue negotiations with the new Governor and DEC Commissioner.

A dispute involving Exclusive Use of Beach Permit has recently drawn attention in the Broadalbin area. It is our understanding that this is a longstanding dispute between several neighbors, all of them permit holders.

While a recent article in the Gazette (Ruling a threat to beach permits – October 22, 2010) suggests that the Department of Environmental Conservation has taken a new stand on the Exclusive Use issue, this is not the case. The Amsterdam Recorder article (Residents seek clarity on 'exclusive use' - October 25, 2010) explains the confusion between state agencies regarding exclusive use.

This is the concept that the DEC was in favor of during the proposed permit system rule changes of 2009; however, these rule changes were not enacted and the HRBRRD has not proposed any further changes to their policies governing the Buffer Strip. In fact, the HRBRRD definitively reaffirmed their position on Exclusive Use this past May by reinstating the Exclusive Use language on permit signs and yearly permit renewals.

While we are pleased that our efforts to have the HRBRRD reaffirm their Exclusive Use policy were successful, the Sacandaga Protection Committee is actively seeking a permanent solution that will put to rest the question over who controls and enforces the policies governing the Permit Holders use of the Buffer Strip.

Sign Replacement Update - June 18, 2010

As discussed below, the HRBRRD has agreed to replace permit holder signs that do not include the exclusive use language (note that this generally applies to signs installed within the last 3 years). We have had a number of requests asking how to go about actually getting the signs replaced. The HRBRRD has advised that any permit holder that would like their sign replaced should contact the HRBRRD and formally request replacement.

HRBRRD Agrees to Restore "Exclusive Use" Language to Signs and Permits - May 12, 2010

Following an extensive educational, legal and lobbying campaign, the Sacandaga Protection Committee succeeded in prompting the Hudson River-Black River Regulating District to restore exclusive use permits for the Great Sacandaga Lake permit system.

On May 11 the Regulating District held its regular board meeting in Johnstown and voted to restore exclusivity for all permits after hearing a final request from the Sacandaga Protection Committee’s legal counsel, Daniel A. Spitzer of Hodgson-Russ LLP. Mr. Spitzer addressed the board during the public comment period and requested the change to protect property values, the local tax base, and the environment of the lake and its surrounding areas. “Our purpose here today is to encourage you, the District, to take an important step to protect the permit system and property values around the lake, by reinstating the exclusivity provision on permits and signs,” Spitzer said. “This easy and inexpensive fix will save the District and local property owners considerably. Moreover, there is no legal reason not to act.”

After Mr. Spitzer’s comments, the board immediately agreed to consider the request. Ultimately, after reviewing the issue with district staff, the board, on a motion by board member Ronald Pintuff, voted five to one to restore exclusive use permits which had been in place for more than 70 years prior to the Regulating District’s policy reversal several years ago.

According to SPC Co-Chairman Joe Sullivan, the Regulating District’s decision was essential to protect not only permit holders, but the entire region. “If an exclusive use permit system was abolished, it would be detrimental to the whole community. You would have a 129-mile public beach. The environment would suffer because property owners would no longer have an incentive to maintain the shoreline, and additional costs would be placed upon local municipalities for trash pickup and parking control around the lake,” Sullivan said. “If the permit holders are denied exclusive use of the land in front, their property values would fall precipitously and the tax burden would unnecessarily shift to other taxpayers and to the Regulating District itself, which is already in financial disarray.”

Read the HRBRRD Statement Regarding Exclusive Use Here

Read the Recorder Article Regarding Exclusive Use Here

Hudson River Black River Regulating District Funding Issues

Updated March 2013

Since the flooding of the reservoir in 1930, the Regulating District has generated revenue by assessing headwater benefit charges to hydroelectric power companies along the Hudson River. The Regulating District has used these fees for operation of the Conklingville Dam and to pay school and property taxes to municipalities around the lake.

In the fall of 2008, a Federal Court ruled that the Regulating District could no longer assess these fees against Federal Energy Regulatory Commisssion (FERC) licensed hydroelectric companies. This ruling has resulted in a shortfall of several million dollars, nearly 80%, of the Regulating District's annual budget. As a result, the Regulating District has been unable to pay its School or Property taxes.

In an effort to make up for the shortfall in revenue, the Regulating District sent flood control bills to five downstream counties (Albany, Saratoga, Rensselaer, Warren, and Washington) totaling more than $9.5 million dollars for 2009 & 2011. The five counties filed a lawsuit against the Regulating District opposing these assessments.

In January 2011 two Albany area legislators re-introduced legislation that would abolish the Hudson River-Black River Regulating District (HRBRRD) and replace it with the New York State Power Authority (NYPA). This legislation was in retaliation to the HRBRRD's recent assessment of the costs of reservoir operations to the 5 downstream counties determined to be flood control beneficiaries. Through the efforts of the SPC and others, the legislation was previously stalled at the close of the June 2010 legislative session. We are still opposed to this plan and are actively working to prevent it from moving forward. Additional information on this legislation and the SPC position on this issue can be found on our website here.

The SPC continues to be active in searching for both short term and longterm solutions to this critical issue. The SPC has contacted U.S. Congressmen Chris Gibson, Paul Tonko, and Bill Owens and U.S. Senators Gillibrand and Schumer about sponsoring Federal Legislation to restore the funding process that had been in effect since the creation of the District.

The Regulating District and the five Counties involved in the recent funding lawsuit have had their oral arguments in Court in December 2010 and we are back in court March 15. The current lack of funding has had a very serious impact on the District’s ability to pay local School and Property taxes, as well as its ability to accomplish work in the Hudson River region.

At their March 12, 2013, meeting the Hudson River Black River Regulating District Board passed a resolution approving a settlement with five downstream counties (Albany, Rensselaer, Saratoga, Warren, and Washington) over flood control assessments.

Several articles have been published on this issue and linked below:

Flood control a state concern - Leader Herald, February 24, 2013

After 3 years HRBRRD reaches agreements - Leader Herald, February 20, 2013

County may receive tax payments - Leader Herald - December 11, 2012

School districts, Fulton County sue for back tax from river agency - Gazette, March 10, 2011

Sacandaga group may get support - Leader Herald, March 7, 2011

County gives lake district a deadline to pay taxes owed - Sacandaga Express, February 9, 2011

Lake district board at standstill over taxes - Recorder, January 28, 2011

Hudson River - Black River Regulating District struggles on despite funding, lawsuit challenges - Post Star, Oct. 8, 2010

Regulating district sued over tax bills - Leader Herald, June 8, 2010

5 counties sue flood control agency - Times Union, May 29, 2010

HRBRRD bills counties for flood control benefits - Gazette, March 31, 2010