Standing Firm In Difficult Times: Fishkill Ridge Community Heritage Update Report
RE: Thalle Mine Expansion

“Rattle, Rattle, Where is the Rattle?”
- Jonah Triebwasser, lead council for New York State, Department of Conservation. Quoted from his reply to FRCH’s signed affidavits about sightings of Eastern Timber Rattle snakes on the east side (as apposed to the west side, of course) of route 9.

"A man is truly ethical only when he obeys the compulsion to help all life which he is able to assist, and shrinks from injuring anything that lives."
- Albert Schweitzer

"The Dysfunctional DEC"

Immediate Reform Is In Order:
At the very first DEC public hearing we stated our position that the DEC lacks moral authority to preside over the expansion of Thalle Mine or any other matter pertaining to mining. We continue to so maintain.

Our participation in the issues conference, our subsequent appeal of the decision rendered by the presiding Administrative Law Judge, the manner in which the appeal was handled by the Commissioner and her Deputy, and the conflicts of interest held by the DEC will more than suffice to illustrate the need for immediate reform within the DEC.

Looking Toward the Future:
Changes we seek include, but are not limited to, the following goals and objectives:

INITIAL GOALS:
1. Identify department mandates, with special attention given to the identification of conflicting mandates.

2. Identify conflicts of interest.

A. A conflict exists when the same department oversees and regulates mining while also being mandated to approve mines and to promote the mining industry within the State of New York.

B. A conflict exists when a DEC Administrative Law Judge presides over a hearing concerning issues the DEC has prejudged.

C. A conflict exists when a DEC Administrative Law Judge is asked to rule on expert scientific testimony presented by a fellow DEC employee.

D. A conflict exists inasmuch as Thalle Industries lists the DEC on its list of clients.

Applicable Statute:
Public Officers Law §74(2), the code of ethics for State officers and employees, contains the rule with respect to conflicts of interest:

No officer or employee of a state agency . . . should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest.

Following the rule with respect to conflicts of interest, Public Officers Law §74(3) provides standards of conduct which address apparent as well as actual conflicts of interest:

(b) No officer or employee of a state agency . . . should accept employment or engage in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority.

(f) An officer or employee of a state agency . . . should not by his conduct give reasonable basis for the impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties, or that he is affected by the kinship, rank, position or influence of any party or person.

(h) An officer or employee of a state agency . . . should endeavor to pursue a course of conduct which will not raise suspicion among the public that he is likely to be engaged in acts in violation of his trust.

E. A conflict exists when a DEC Administrative Law Judge presides over a hearing in which the DEC appears as a litigant.

FURTHER GOALS:
3. Take action to eliminate conflicts, including restructuring of NYSDEC as necessary.

4. Take action to determine the staffing requirements necessary to execute department mandates.

5. Take action to establish full funding to the extent necessary for the complete discharge of all department mandates.

6. Creation of two separate divisions within the NYSDEC; one mandated to promote the mining industry within the State of New York, and another mandated to oversee the operation of existing mines and to oversee the permitting process for new mines.

The Issues Conference:
The New York State Department of Environmental Conservation held an issues conference to determine if there were any issues concerning the permits for the expansion of Thalle Mine that required adjudication.

During the issues conference, Fishkill Ridge Community Heritage presented the testimony of Dr. William S. Brown.

"Dr. Brown was employed for 23 years as a biology professor at Skidmore where he taught courses on snake ecology, behavior, and life history, including two courses that specifically involved the Eastern Timber Rattlesnake. He has also been involved in long term field research on Timber Rattlesnake populations in New York State involving denning characteristics, behavior, and ecology of Timber rattlesnakes, timber rattlesnake movement, temperature relationships, hibernation characteristics, scent trailing by newborns, female reproductive ecology and male reproductive ecology. Dr. Brown’s field research has resulted in the publication in peer-reviewed scientific journals of ten articles pertaining to various aspects of timber rattlesnake ecology and behavior. He is the author of the only scientific monograph on the Eastern Timber Rattlesnake."

In fact, Dr. Brown was the herpetology expert who testified in support of the DEC and Scenic Hudson in the matter of opposing the permitting of the proposed Sour Mountain mine, which is located directly across the street (Route 9) from Thalle Mine.

In his testimony concerning the permitting of the expansion of Thalle Mine, Dr. Brown stated the need for further study to determine the presence of the endangered Eastern Timber Rattlesnake in the ecosystem that would be destroyed by the proposed mine expansion. Dr. Theodore Kerpez who is the Senior Wildlife Biologist in the DEC Region 3 office and a full time employee of the DEC disagreed.

This issue became “junk science” the moment the DEC’s Administrative Law Judge decided to make his own legal, but scientifically premature decision. In acting as he did, he favored the testimony of the DEC’s scientific expert over the testimony of the FRCH scientific expert without troubling to avail himself of the additional information he might have had if the matter had been referred to adjudication.

Scientific protocol would have required a presentation of all available evidence to be reviewed by an impartial judge who is advised by objective scientific authority. What we had instead was a presentation limited to evidence allowed by the Administrative Law Judge who is a full time employee of the DEC, one of the contesting parties. The Judge’s decision was made on the basis of “present” evidence as opposed to basing the decision on all the “available” evidence that could and should have been collected and presented.

The Importance of Adjudication:
Adjudication is a serious matter. Once an issue has been identified for adjudication, certain rules take effect. These rules do not apply during the less formal issues conference. During the issues conference, persons who have important information may hesitate to volunteer what they know for a variety of reasons. Potential witnesses may hesitate to offer testimony that is contrary to the expressed purposes of powerful interests such as the NYSDEC, Scenic Hudson, or Thalle Mine. During the process of adjudication, witnesses can be subpoenaed. Persons who might otherwise feel intimidated may find it easier to testify under the order of a subpoena.

The process of adjudication also allows the cross examination of witnesses. Witnesses cannot be cross-examined during the issues conference.
The Administrative Law Judge who presided over the conference issued his legal decision that there were no issues for adjudication. By not referring the issue regarding the disagreement between experts concerning the protection of the Eastern Timber Rattlesnake, the Administrative Law Judge in effect denied FRCH the opportunity to subpoena witnesses and to cross-examine.

Decision is in Error.
Fishkill Ridge Community Heritage contested the decision of the Administrative Law Judge, and appealed it to the NYSDEC Commissioner Erin Crotty. We continue to maintain the ALJ’s decision stating there are no issues worthy of adjudication is in error.

Only weeks before the November 2nd 2004 election, Commissioner Crotty recused herself from deciding our case. Deputy Commissioner Carl Johnson handed down the actual decision on our appeal the day after the election. The Commissioner then refused to respond constructively to our freedom of information request seeking the reason for her recusal. The coincidence of these circumstances strongly suggests it may be appropriate to examine the issue further for the possibility of improper influence in this decision.

The Law Needs Support:
It has been years since the government created agencies charged with the protection of portions of ecosystems necessary to maintain public health and safety. During that time the forces of greed have been at work undermining and “privatizing” those efforts, removing them from public control and abdicating public responsibilities to volunteer and not for profit private corporations. The NYSDEC is woefully understaffed and under funded. As if to provide a further guarantee of its impotence, the NYSDEC is charged with conflicting mandates, as we have noted above.

The environmental laws now in effect, designed to protect our patrimony from the rapacious greed of industry, are inadequate to serve their intended purpose. Above all, no law can substitute for an absent conscience.

Law Cannot Stand Alone.
The twin columns of Ethics and Justice must support the edifice of Law. Ethics is here defined as conscience; as our obedience to the unenforceable; as our understanding of the importance of doing the things we know should be done in the ways we know we should do them, even though no one could possibly compel our obedience. Justice is here defined as doing all that can be done to level the playing field; doing that which is necessary to offset the caprices of bad luck and indifferent fortune.

Inattention to Detail:
The following reads like a puzzle from “Alice In Wonderland.” We don’t include it for its entertainment value, but rather to illustrate and remark upon the level of inattention the Deputy Commissioner exhibited in making this decision.

The Deputy Commissioner states:
“Furthermore, Department staff rejects FRCH’s claim that the presence of a copperhead in the project area means that timber rattlesnakes are present.”
Fishkill Ridge Community Heritage never made the claim that the presence of a Copperhead in the project area means that Timber Rattlesnakes are present.

A moment’s reflection would be enough to realize that for the statement to be true, one or both of two situations would also be true of necessity. Either:
1. Copperheads and rattlesnakes are inseparable. Or:
2. Copperheads and rattlesnakes are identical.

The Deputy Commissioner appears to have assumed the DEC made a correct statement (quoted above) and apparently did not bother to check what FRCH actually did say. That ridiculous statement was introduced, but an examination of the record will show it was not introduced by FRCH. DEC staff introduced the false statement, perhaps in an attempt to make FRCH appear ridiculous.

Unprofessional Tone:
The point referenced above also serves to illustrate why the mocking, belligerent, arrogant, demeaning, sarcastic tone employed by both the counsel for Thalle industries and counsel for the DEC has no place in the issues conference or in any other hearing. The counsel for FRCH stated his objection in regard to this abuse, the only apparent result being that the objection was duly included in the record.

In any event, the false statement regarding the relationship between rattlesnakes and copperheads amounts to an absurdity treated as a serious matter by the Deputy Commissioner, who apparently assumed FRCH was quite capable of saying such a stupid thing.

The “Snake Fence”:
Sour Mountain Realty erected a “snake fence.” They claimed this fence would serve as a barrier to prevent rattlesnakes in dens located on Scenic Hudson’s property from entering Sour Mountain Realty’s adjacent property located on Bald Hill in the Fishkill Ridge, directly across Route 9 from Thalle Mine.

Thalle Mine is close enough to these known rattlesnake dens to be within the footprint of the distance snakes are known to travel in the course of their normal activity. The DEC quite properly insisted the snake fences erected by Sour Mountain Realty be removed, since the fencing restricted the movement of the snakes within their habitat. The fence was removed, and Sour Mountain Realty did not mine the area. However, mining continued at Thalle Mine without interruption and will now be permitted to expand.

In the opinion of FRCH, Route 9 is not a significant obstacle to snakes. Because we live here, we know how local traffic patterns flow. We know that late at night, traffic on Route 9 is greatly reduced. This information can be easily verified by any competent investigator performing an on site study. We also know the rattlesnakes are nocturnal and tend to travel in the night. We have no doubt they cross the highway exactly the way the deer, opossums, skunks, mice, and rats do. The DEC does not accept this and claims that Route 9 is a wall that inhibits the snake and protects Thalle Mine from the snakes that would normally range there.

The Questions We Pose Are These:

1. Since we are willing to suppose that Sour Mountain Realty's snake fence constitutes an unacceptable barrier, in what significant manner, then, does Route 9 differ as a barrier from Sour Mountain Realty’s snake fence?

2. And if Route 9 is an effective barrier to rattlesnakes within the radius of the normal range of travel in the area surrounding two known dens, why shouldn’t the barrier be removed at once?

It would present no significant problem for our local engineers, working in consultation with wildlife experts, to design wildlife transit corridors, possibly in the form of tunnels under the roadway, placed at appropriate intervals.

Once appropriate wildlife transit corridors are established, proper monitoring should then be done to detect the presence of the snakes we have little reason to doubt are already there.

These are not small points. If Montfort can't erect a snake barrier within the footprint of the normal traveling range of the Eastern Timber Rattlesnake from its den, neither can the highway department. But if the highway department can, so can Montfort.

3. Why were Scenic Hudson and the DEC so aggressive in dealing with the snake issue on one side of the road and yet so ready to rush to an inappropriate compromise in regard to snakes on the other side of that same road?

If Scenic Hudson had proceeded in regard to the Thalle Mine’s Eastern Timber Rattlesnake issue in the same way as they responded to the snake issue when the Montfort family proposed to mine the opposite side of Route 9, Thalle Mine might now be closed and an irreplaceable ecosystem would have been spared.

An Improper Appeal?
Was the Administrative Law Judge influenced by the Thalle counsel’s appeal to pity? Counsel complained his client was in danger of losing some of the increased business Thalle Industries, Inc. anticipated as a result of the permitting of the mine expansion to their competition because of the delay created by this issues conference. Is it possible the ALJ was moved to "expedite" the issues conference as a result?

Read: Ethics Law Loophole