State of New York
Supreme Court : County of Livingston

for a Judgment Under Article 78 of the CPLR

- against -

Index No. 897-1998

for a Judgment Under Article 78 of the CPLR

- against -

Index No. 935-1998

The Genesee and Wyoming Railroad Company,
Intervenor.
__________________________________

ANDREW V. SIRACUSE, J.S.C.

Behind both of these cases is a controversy that remains unspoken. Although the first case deals with the construction of a highway department facility and the other with approval of a rail spur, the basis for the petitioner's opposition to these actions lies most of all in dissatisfaction with the decision to develop and operate a new salt mine in Livingston County. The highway department development is tangentially connected with this larger undertaking, but the rail spur is required to connect the mine to the main tracks that will carry salt to the various end users.

This cannot and does not have any influence on the court's deliberations, either for or against petitioners; moreover, the court is not empowered to consider, except in the narrowest of terms, the wisdom or propriety of the specific decisions that are before it. The doctrine of separation of powers requires that courts defer to the legislature and executive bodies, unless those bodies act outside their authority, violate legal procedures, or make a decision so irrational or so unfounded on evidence that no reasonable person would concur. The court, therefore, offers no opinion as to the merits of the mine, the highway department facility, or the rail spur.

The issues before the court are circumscribed by the validly-pleaded causes of action set out in each petition, which in both cases argue non-compliance with SEQRA and a threat to the archaeological heritage of the area. The petitioners have sought in their reply papers to raise numerous other issues, most centrally the alleged danger of subsidence that came to light in the aftermath of 1994's collapse of the Retsof salt mine, also in Livingston County. Counsel for petitioners devoted virtually all of her oral argument to this point. The court will address this aspect of the papers in detail below; at this point it is sufficient to note that the court cannot address matters not raised in the petition.

R.A.G.E. v Livingston County

The first petition attacks the construction of a truck refueling station on land owned by Livingston County where a fire training tower and other county facilities currently stand. This project has been contemplated since the late 1980s. The county board authorized purchase of the land on June 14, 1989, and the sale was consummated by the fall of 1991. The SEQRA review was done thereafter, in the context of a planned development of a fire training center, highway operations center, and other uses. A negative declaration was issued on July 22, 1992. Subsequent to this the Rochester Museum and Science Center did an archaeological survey and concluded, in a preliminary report dated March, 1993, that the proposed construction would not cause adverse impacts. The final report, dated October, 1993, concluded the same but recommended that professional staff be called in should excavation uncover cultural material.

In the next few years the facility was under planning and construction. On November 19, 1997, the board authorized the construction of the highway department facility and the issuance of $3 million in bonds to pay for it. Almost a year later, on October 14, 1998, the board authorized an additional $1 million in bonding authority because construction costs were higher than anticipated.

The petition purports to attack this October resolution, which petitioners argue was the final determination of the board. It recites the alleged archaeological significance of the property, and states that by 1995 a cultural resource investigation in connection with the railroad spur proposed for the mine should have alerted the county to the archaeological issues, and should have required a supplemental Environmental Impact Statement (EIS) to reconsider issues dealt with in the original 1992 review.

Petitioners also claim that the SEQRA review in 1992 was improper, contains no reasoned elaboration of the basis for the determination, did not allow for mitigation, and was illegally conducted. (The exact nature of this illegality is not specified.) The failure to perform the supplemental review is a fifth cause of action, and the failure to rescind the negative declaration when the archaeological data was received constitutes a sixth. The seventh is the failure to disclose catastrophic impacts -- again unspecified. The final two causes of action allege general violations of the Indian law, Highway Law, and others.

The County claims that the petition as against the 1998 resolution is actually an untimely challenge to the SEQRA review completed in 1992. The court agrees. The 1992 review addressed the entire development plan for the property, and implicitly if not explicitly covered issues such as fuel storage and traffic. Even if it were granted that the final approval of the specific construction project is the starting date for the limitations period, in the present case this can only be the board resolution of November 19, 1997. The 1998 resolution merely addressed a cost overrun, and did not reevaluate the propriety of the project itself. Since that issue was not before the board in 1998, it cannot be reviewed now. The challenge to the SEQRA review is therefore untimely under any theory, and those causes of action arising therefrom should be dismissed. In addition, the final causes of action are meaningless in their lack of specificity and should also be dismissed.

As noted above, petitioners devote most of their reply papers to alleging that there is a danger of subsidence in the area and that in 1995 a supplemental EIS was required because the 1994 Retsof mine collapse demonstrated this danger. (The court notes that the evidence for this alleged danger is based almost entirely on non-expert affidavits.) This issue was never averted to in the petition and cannot be considered (see Matter of Crawford v Kelly, 124 AD2d 1018); indeed, it was not brought before the board in 1998 or, apparently, 1997. Moreover, it is troubling to see how the petitioners have attempted to slip this matter into the issues before the court. The petition and the reply papers both refer to information available in 1995 that supposedly necessitated a supplemental EIS.

The alleged new information, however, is very differently described in these two documents. In the petition the new information is said to be the archaeological significance of the area; there is no mention of subsidence, the Retsof mine, or any geological issues whatsoever. The reply papers, on the other hand, are replete with such matters. The only connection between the two is the coincidence of dates.

At oral argument petitioners' attorney stated that there was no limitations concern with the subsidence issue because the cause of action continues to accrue so long as the county failed to consider the new information. This is incorrect, patently so when it is remembered that the county was committed to the project well over a year ago. Again, even assuming the subsidence issue were properly before the court, it would have been incumbent upon petitioners to raise it in 1997, when final approval took place. The petitioners cannot sit on their rights and then ambush the county after the limitations period expires with a claim of a continuing flaw in the SEQRA review.

The reply papers also contain much irrelevant and almost scurrilous information, attacking the Rochester Museum and Science Center for its dependence on corporate funds, suggesting that its review was biased, detailing accidents at the fire training tower, possible flooding hazards in the wake of El Nino and La Nina, and so on. These have no relevance to the issues before the court.

The main affiant, who states she is of Native American descent, also discusses at length the supposed assault on her cultural heritage posed by this development and the one challenged in the companion case. The legal aspects of this concern were addressed in the SEQRA review and the later RMSC study. Furthermore, the court fails to see what authority the petitioner or any of its members have to speak on behalf of any Native American nation. Contrary to the impression one might receive from looking at these papers, the original inhabitants of the Livingston County area still exist and have legal status and representative institutions. No official representative of the Seneca Nation or of any other member of the Iroquois League has joined in this action. In fact, a museum owned and operated by the Seneca Nation is working with the Village and Town of Mount Morris in the development of the rail spur contested in the second case, a participation which these petitioners object to. The court does not accept the petitioners' self-appointed role as spokespeople for those who have declined to oppose these actions through their own representatives.

The petitioners' lack of authority to speak on behalf of the Seneca removes, as well, one of the few specific claims they make in support of their standing to oppose this decision. The court fails to see how the construction of the highway department facility will affect these citizens differently from any others. On standing grounds, alone, this petition should be dismissed; but it is so thoroughly flawed on the merits that it would be dismissed in any event.

R.A.G.E. v Village and Town of Mount Morris

The petitioners' reply affidavit and exhibits in this case are identical except for the caption to those submitted for the first one; in fact, a single set of exhibits was supplied to serve for both affidavits. Much of the above discussion applies to this case as well. Only the standing issue must be resolved differently, as the respondents' attorney withdrew his objection to R.A.G.E.'s standing when one of the owners of land being expropriated for the rail spur stated in court that he was a member of R.A.G.E

. In this case the petitioners challenge a 1996 Environmental Impact Statement that was relied upon by both the village and town of Mount Morris when they granted approval to intervenor Genesee & Wyoming Railroad for its sidetrack to the new mine. The 1996 SEQRA review, however, was upheld by the Third Department in Matter of R.A.G.E. v Zagata (245 AD2d 798), a case in which R.A.G.E. was a party and which therefore collaterally estops petitioners from rearguing its merits.

The Third Department case admittedly dealt with the EIS and not the permits to build the rail spur. Since the major claim made in the petition is that the permits are improper because they are based on an improper EIS, however, the earlier decision forecloses most of the petitioner's claims. The lead agency in this review was the State of New York, and the village and town were merely participants and were entitled to rely on it. It would, in fact, have been improper for the village or town to make decisions inconsistent with that review. Since the review is beyond attack, and the respondents were correct to rely upon it, no SEQRA-related issue can now be raised.

The alleged errors in the permit other than its reliance on the SEQRA review were, according to petitioner, (1) making the permit decision before a final archaeological review was done, and (2) putting oversight responsibility for cultural heritage issues on a unnamed representative of Native American groups. The court finds, however, the archaeological review was completed. Petitioners rely on an RMSC letter stating that geomorphological tests need to be done before a final report could be issued. These tests were not performed at the time the permits were approved. However, an affidavit from RMSC staff states that the archaeological issues had been dealt with at the time; the geomorphological work was needed only to help date the strata in the area. Since the presence or absence of significant archaeological resources had been decided by the time of the preliminary review, the boards were correct in acting upon the preliminary report.

Further, the permit's provision for the presence of a Native American observer is very far from being inadequate; it is strictly unnecessary because the review showed no archaeological issues of importance. The town and village would have been justified in granting the permit without any observer. They undertook to make these arrangements out of their own sensitivity to Native American concerns, and an official from the Seneca National Museum, which is owned by the Seneca Nation, has agreed to perform this oversight. In this case, therefore, the official voice of the Seneca people is contradicted by the self-appointed affiant associated with petitioners. The court must reject the petitioners' claim to speak for the Seneca.

As in the Livingston County case, petitioners also raise the subsidence issue in its reply for the very first time. The same issues that preclude its consideration in that case apply here as well. Moreover, the SEQRA review in this matter was conducted in 1996, well after the Retsof collapse, and had the benefit of post-1994 information on the geological stability of the area. The petitioners have shown no basis for disturbing either the 1996 EIS or the permit that relied upon that statement.

Both petitions are dismissed, with costs. Counsel for the governmental respondents should prepare the orders.

DATED: Rochester, New York

February 1, 1999

Andrew V. Siracuse, J.S.C.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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