Judge Donna Siwek of State Supreme Court recently ruled that Chautauqua Institution’s lawsuit against the state Department of Environmental Conservation, town of Ellery and Chautauqua Lake Partnership will remain in Buffalo. P-J file photo

BUFFALO — Chautauqua Institution’s lawsuit against the state Department of Environmental Conservation, town of Ellery and Chautauqua Lake Partnership will remain in Buffalo.

Judge Donna Siwek of state Supreme Court in Buffalo made the ruling recently, and in so doing agreed with the argument made by Chautauqua Institution’s lawyers that the institution’s filing is not a continuation of a case brought in February and dismissed in state Supreme Court in Chautauqua County. Judge Siwek also denied without prejudice Chautauqua Institution’s motion to dismiss the Chautauqua Lake Partnership’s attorney from representing it in the proceeding. The sides are now arguing motions to dismiss the petition. The next court date in the lawsuit is 9:30 a.m. Wednesday, Nov. 14.

The Nov. 14 hearing will focus on motions made by the Chautauqua Lake Partnership and Ellery to have the lawsuit dismissed. The state DEC has also asked that it be removed from the lawsuit.

MOTIONS TO DISMISS

A memorandum of law filed by Anne K. Bowling, the CLP’s attorney from Rupp, Baase, Pfalzgraf, Cunnningham LLC, states that all parties who took action should have been named in the institution’s lawsuit. She argues that since Ellery, North Harmony, Busti, Ellicott and Celoron all received permits for herbicide applications and that all could be affected by a judgment in favor of the institution, the lawsuit should be dismissed unless all of those municipalities are joined in the lawsuit. Bolling also writes that the lawsuit states to challenge the issuance of the Supplemental Environmental Impact Statement, Lead Agency Findings Statement and state DEC Statement of Findings, but Bolling argues the only final agency statements the institution can challenge are the DEC’s decision to grant permits to Ellery, Ellicott, Busti, North Harmony, Celoron or the decision by Ellery, Busti and North Harmony to apply herbicides. Bolling also notes the institution didn’t file proceedings to keep the status quo in May and June so that a court could decide the issue before herbicides were applied, and can choose to file challenges if future herbicide applications are proposed.

Boling’s memorandum also argues the petition should be dismissed because the institution is asking the court for an advisory opinion on whether the 2018 SEIS can be used by the municipalities and the DEC in 2019. She states an Article 78 petition challenges final agency actions, but the institution isn’t challenging an agency action since it doesn’t know if municipalities will apply for herbicides in the future, if the DEC will grant the permits and if there will be any future harm to the institution.

“Moreover, at the time it granted the 2018 permits, the NYSDEC contemplated that the rationale behind its decision in 2018 would likely change in future years depending on a variety of factors set forth therein,” Bolling’s memorandum of law states. “Duringa 2019 coordinated review process, a supplemental SEIS may be required and drafted, new mitigations may be proposed or new studies may be introduced that address the institution’s concerns or change the reasoning of the town of Ellery and/or the NYSDEC in reaching its conclusion on whether or not herbicides should be applied to the lake in 2019. … If any municipality proposed to apply herbicides to Chautauqua Lake in 2019, the institution will have a full opportunity to participate in multiple administrative review processes and have the opportunity to influence any future final determinations by the town of Ellery, the NYSDEC or any other municipality.”

ARGUMENTS AGAINST DISMISSAL

Laurie Styka Bloom, an attorney from Nixon Peabody LLP representing Chautauqua Institution, filed documents Friday laying out the institution’s case against dismissing the petition. She argues that Ellery, the CLP and the DEC haven’t actually answered the Article 78 petition, instead choosing to dress their motions in the language of motions to dismiss while actually trying to seek an adjudication of the claims the institution makes. Bloom writes that the petition is not subject to summary dismissal since Civil Practive Law and Rules states courts must accept as true the facts as alleged and give a plaintiff “the benefit of every possible inference.” Further, affadavits and testimonial evidence contradicting the pleading aren’t permitted to overcome that presumption of truth, Bloom writes, because they merely establish issues that should be heard during a trial.

The motions to dismiss should also be denied because the institution has not had an opportunity for discovery. Bloom also writes that the institution has adequately stated a cause of action seeking declaratory relief that should not be subject to outright dismissal.

“In other words, where, as here, the court is presented with a justiciable controversy, the matter can only be resolved by the issuance of a declaration by the court after a consideration of the merits,” Bloom’s memorandum of law states.

Bloom also writes that the petition is not moot, as is claimed by Ellery, the CLP and the DEC, because the petition does not seek to challenge or nullify the June 1, 2018, permits as issued by the DEC. Bloom writes the DEC’s filings in the case admit the challenge to Ellery’s SEQRA process are not moot since the document may serve as the basis for future permit applications. The institution’s lawyer also says the ongoing controversy regarding weeds on Chautauqua Lake and statements by the CLP, discussion during a recent special meeting of the Ellicott Town Board and legal filings all suggest the 2018 SEIS will be used as the basis for future herbicide treatments.

“Thus, it is misleading at best, and disingenuous at worst, to suggest that this matter is moot because no permits for 2019 herbicide applications have yet to be applied for — when it is clear, from the parties’ own mouths, that such applications will be forthcoming,” Bloom wrote. “Clearly, intervenor CLP (and others) did not invest (according to them) over a quarter of a million dollars on a one-time use SEIS that by its terms addresses herbicide applications in the lake — not just 2018 applications and not just in the towns that sought permits in 2018. As such, the fact that the 2018 permits have been issued and acted upon is a red herring that should not distract the court from the actual issue — and does not preclude judicial review of the SEIS.”

The institution also argues that the other towns and villages that applied for herbicide permits in 2018 do not need to be included in the lawsuit because the institution isn’t seeking relief from those agencies.