Environmental groups file motion to end cannon testing hearing

For months, Michael Hopmeier has sought to end a special state hearing intended to help determine whether he will get a permit to test large cannons in the northeastern Adirondacks. Now, environmental groups that are parties to that hearing want that, too.

In a joint motion to dismiss filed on Aug. 17, Protect the Adirondacks, the Adirondack Council, Adirondack Wild: Friends of the Forest Preserve and the Sierra Club are calling on the Adirondack Park Agency to vote on the incomplete and pending permit and to deny it.

On Wednesday, David Greenwood, the state administrative judge overseeing the hearing proceeding, gave Hopmeier and his attorney until Aug. 28 to respond to the motion to dismiss, according to Protect the Adirondacks. The environmental organizations will then have until Sept. 4 to respond to any possible cross motions. 

While the environmental groups and Hopmeier are each seeking the hearing’s end, the parties are hoping for different results. 

Hopmeier wants his application sent back to APA staff to work out unanswered questions outside of a hearing. The environmental groups, however, want to see the agency board deem the permit incomplete and deny it that way.

It’s unclear if the APA can do that, though the environmental organizations think it can. 

“Because the applicants have failed to meet their burden of proof despite having been provided every opportunity to do so, the APA Board cannot make its required findings under the APA Act and the application must be denied,” wrote Christopher Amato, counsel and conservation director for Protect the Adirondacks.

Mary Fox, assistant public information officer at the APA, said the agency does not comment on ongoing hearings.

In the joint motion, which was filed by Amato, the groups note that Hopmeier has “failed to comply” with the hearing’s scheduling. 

While the hearing isn’t slated to officially start until Oct. 28, all the parties in the hearing have been collecting expert witnesses and testimony, providing background information and answering questions. It’s all part of a discovery process and is on a separate schedule.

The parties to the hearing include the APA, Hopmeier (through his company called Unconventional Concepts, Inc.), and the four environmental organizations.

Last week, Hopmeier’s attorney, Matthew Norfolk, requested an additional three weeks to submit various discovery documents, which Greenwood denied, records show. In a letter, Greenwood said the request was too late, according to the agency’s regulations. Norfolk asked for the extension less than 24 hours before the documents were due.

Greenwood ordered a scheduling conference with the hearing parties for Wednesday. Greenwood did not make any scheduling changes to the hearing during that meeting.

Monday evening, however, the groups submitted their motion to dismiss the proceedings.

Jackie Bowen, director of conservation for the Adirondack Council, said Norfolk and Hopmeier have had nine months to provide additional information. That’s why the council has signed on to the motion to dismiss the hearing. They want the APA board to vote.

“We think the APA board should choose to deny it because they (Hopmeier and Norfolk) haven’t provided any additional information sought by the APA board when they originally sent it to a hearing,” Bowen said. 

However, Bowen believes that a denial would not prevent Hopmeier from reapplying in the future.

Tensions have escalated between the environmental groups and Hopmeier over the last month and a half, records show.

A site visit scheduled for mid-July was supposed to include all the hearings’ parties, but Hopmeier, through Norfolk, rescinded his invitation to all but the APA. Adirondack Explorer received email communications between Norfolk, Greenwood, APA Assistant Counsel Grace Sullivan and the parties regarding the site visit through the Freedom of Information Law.

Hopmeier, whose private business is in security consulting, had put several restrictions on the site visit, including a limit to three people per hearing party and a limit of 45 minutes at the site. Several of the groups contested that the limitations would not allow them to bring experts to evaluate the site and assist with information gathering.

Norfolk said Hopmeier was concerned about the attendees’ safety due to the rough terrain of the site. He also wrote about the expense of providing the time and transportation, records show.

Following the protests, Norfolk wrote to the parties that only the APA would be allowed to visit, noting that there was nothing in the agency’s rules to require all parties to participate.

Amato, who has taken part in multiple such hearings in his time working for the state prior to joining Protect, said it’s commonplace for all parties to attend site visits.

There is also a discrepancy between Hopmeier and the environmental groups over whether his former missile silo site is part of the cannon testing project. Amato, in a statement supporting the motion to dismiss, said it should be part of the site visit because it is identified as part of the project in the application before the agency.

The cannon testing itself, which would take place a maximum of 30 times per year over five years, is proposed on land owned by James Pulsifer, down the road from the former missile silo in the town of Lewis. 

Norfolk has argued, records show, that the application and testing are specific to Pulsifer’s land.

Hopmeier has tried to get a permit from the APA to test the ballistics of 155 mm portable howitzers since 2021. After six notices of incomplete application, the APA voted in November to send the project to an adjudicatory hearing. This is the first ballistics testing application ever to come before the agency, which oversees public and private development in the nearly 6-million-acre park.

APA staff recommended a hearing to the agency’s 11-member board because they felt Hopmeier’s application did not have enough information to determine whether a cannon testing range was compatible in the park. While the hearing is overseen by Greenwood, it would be up to the board to issue a decision. The APA board is made up of gubernatorial appointments across the park, including representatives of the Departments of Environmental Conservation, State and Economic Development.

Adjudicatory hearings were more commonplace decades ago, but they disappeared under Gov. Andrew Cuomo’s administration.

The APA has not convened an adjudicatory hearing since 2006. That hearing, for the Adirondack Club and Resort in Tupper Lake, ended in 2011 and resulted in a permit, but the project went bankrupt. The last time the agency denied a permit by adjudicatory hearing was in 2003, and it was for an herbicide in Lake George.

At the same time as the hearing proceedings, Hopmeier’s company is under investigation by the APA over military activities he has hosted at the former missile silo. Protect the Adirondacks, Adirondack Wild and the Sierra Club previously requested the APA to halt the hearing until the enforcement proceeding was finished, but the agency declined to do that.

And still in the wings is a lawsuit Hopmeier filed against the APA over the November vote to hold an adjudicatory hearing. In that lawsuit, Hopmeier is seeking to end the hearing and to send the project back to APA staff to review the permit. Judge Allison McGahay has yet to rule on that.

Hopmeier did not immediately respond to a request for comment. Norfolk declined to comment.

This story originally appeared in the Adirondack Explorer, a nonprofit news organization covering people and policy inside the forest preserve.