Pictured is a photo submitted as evidence in court by Jim Wehrfritz, Chautauqua Lake Partnership executive director, of weeds in Burtis Bay in Ellicott earlier this summer.

The town of Ellery wants its day in court to be held in Chautauqua County instead of Erie County.

The motion to change venue and a motion by the Chautauqua Lake Partnership to intervene in Chautauqua Institution’s lawsuit against the town of Ellery and the state Department of Environmental Conservation has pushed oral arguments in the case from early October to Nov. 14.

On Thursday, Judge Donna Siwek will preside over a hearing in state Supreme Court in Erie County on Ellery’s motion to have the case heard in state Supreme Court in Chautauqua County as well as the CLP’s motion to be a party to the case.

Ellery argues Chautauqua County is an appropriate venue for the proceeding since Chautauqua County is within the judicial district where the complaint was filed and is the county affected by the court complaint. Julia H. Purdy, an attorney for The Knoer Group PLLC representing Ellery, also argues that the case should be moved to Chautauqua County because it is related to a case decided in state Supreme Court in Chautauqua County earlier this year.

“The present case is a sequel to Arnn: same or similar relief is being sought; concerns the same SEIS; the same body of water is at issue; the same application of herbicides is at issue; and respondents are similar,” Purdy wrote in the motion to move venue filing. “Petitioner was aware of the permit applications on Chautauqua Lake. … The Honorable James H. Dillon, J.S.C. is already familiar with the pertinent facts of this case and has been briefed on the law regarding lead agency status and SEQR.”

WHAT IS THE ARNN CASE?

The case Purdy references as filed by 15 people in state Supreme Court in Chautauqua County in December 2017 against the town of Ellery, state DEC and Chautauqua County challenging Ellery’s designation as lead agency for the State Environmental Quality Review Act process. The group of residents argued Ellery didn’t have the necessary jurisdiction and authority to be the lead agency for the SEQRA and to issue an injunction preventing Ellery, Chautauqua County or the DEC from applying herbicides in the lake unless a full Environmental Impact Statement was done that considered the impacts of placing herbicides into the lake upon the entire lake.

Residents argued that the Supplemental Environmental Impact Statement the town was pursuing, with the help of the Chautauqua Lake Partnership, wouldn’t consider effects to the entire lake. They argued that the state is the sole agency with lake ownership rights, that the state DEC and Chautauqua County have sole authority for work done in the lake and should be the lead agency for the SEIS and SEQRA process for herbicides to be used in the lake.

“Any application of herbicides to the lake cannot be done locally, as water does not respect purported municipal boundaries: anything placed in any location of the waters of the Lake will dissipate into the rest of the waters of the lake. If the Town of Ellery places herbicides in the Lake in the waters bordered by the town of Ellery, it cannot stop those herbicides from invading the waters of other municipalities,” the Arnn et. al. lawsuit stated. “The Town of Ellery does not have responsibility for carrying out actions over property which it does not own and in waters for which it does not have authority. The Town is only one of five towns (North Harmony, Chautauqua, Ellery, Ellicott, and Busti) and one city (Jamestown) with property abutting the lake.”

The other argument of note in the Arnn lawsuit was that a new Environmental Impact Statement should be prepared for all of Chautauqua Lake rather than updating a Supplemental Environmental Impact Statement, citing a state DEC legislative hearing report from May 15, 1986, that said a supplemental environmental impact study for future herbicide applications to Chautauqua Lake would consider factors to make sure a balanced approach is used that considers social, economic and environmental concerns.

THE DECISION AND APPLICABILITY TO THE CURRENT CASE

The sides appeared in court in February. In April, Judge Dillon issued an opinion granting the DEC’s motion to dismiss the petition in its entirety on the ground that Ellery’s lead agency designation was not a final agency ripe for review. The petition was denied in its entirety and the proceeding was dismissed without prejudice. All causes of relief sought by the homeowners were dismissed.

Purdy argues that similarities between the Arnn case and the Chautauqua Institution lawsuit make Dillon the best judge to hear the Chautauqua Institution lawsuit. She argues that many of the facts and issues in the Arnn case make it evident, at least to Purdy, that the Arnn case was a preface to the facts and issues in the institution’s lawsuit.

“Despite the significant relationship between Arnn and this case, petitioner decided to bring this proceeding in Erie County,” Purdy wrote in her motion to move the Chautauqua Institution case from Erie County to Chautauqua County. “For an unexplained reason, Arnn was not listed as a related case in the Request for Judicial Intervention.”