Marina attorney promises to appeal decision that critical advertisement is protected as public participation
By Zachary Matson
A Franklin County judge on Thursday dismissed a defamation lawsuit brought by marina developers against the Adirondack Explorer and nonprofit Adirondack Wild over an advertisement criticizing a proposal to expand a marina on Fish Creek Ponds.
The judge ruled the lawsuit was an example of a SLAPP suit, or strategic lawsuit against public participation, and that the statements in the advertisement were protected as truthful or opinions on a topic of public interest.
The Adirondack Explorer thanks its advertising partners. Become one of them.
“There can be no doubt that the [suit] is one involving public petition and participation,” Franklin County Supreme Court Justice John Ellis wrote in the decision.
Ellis also ruled that USL Marina, which earned Adirondack Park Agency approval in May to overhaul the former Hickok’s Boat Livery, pay the attorneys’ fees for the Explorer and Adirondack Wild.
Matt Norfolk, a Lake Placid attorney representing the marina, on Friday said he planned to appeal the decision. He said he didn’t agree with the judge’s analysis that the statements in the advertisement were true, calling it “misplaced.”
New York expanded its so-called anti-SLAPP law in 2020, elevating the standard a plaintiff must meet in demonstrating a suit should be allowed to move forward if it involves an action deemed public participation. The law is meant to protect citizens, activists and journalists against lawsuits aimed to intimidate them against participating in matters of public interest.
The Adirondack Explorer thanks its advertising partners. Become one of them.
The marina’s claim centered on an advertisement – or “call to action” – Adirondack Wild paid to run in the Explorer’s November/December 2023 issue. The advertisement criticized the proposal to increase the size and capacity of the marina, arguing it was “completely out of scale with its environment.”
Numerous nearby property owners and longtime campers at the public Fish Creek Campground also opposed the project, arguing it would increase boat traffic in the pond and narrow channel to Upper Saranac Lake and create potential risks to public safety and the environment.
A similar project by the same developers on Lower Saranac Lake also stirred opposition and years of litigation.
The developers have said they are looking to renovate dilapidated marinas to meet modern safety and environmental standards and provide an asset to the community.
The Adirondack Explorer thanks its advertising partners. Become one of them.
“It’s a couple of rundown marinas we are trying to improve to give people access to the lake,” Mike Damp, owner of USL Marina said after the APA approved the project. “I don’t know why it’s become a lighting rod.”
David Gibson, executive director of Adirondack Wild, on Friday cheered the judge’s decision and said he expected an appeal to also go the advocacy group’s way.
“It doesn’t stand a chance in the Appellate Division given the clarity of this decision,” Gibson said.
Gibson said he thinks the lawsuit was an attempt to intimidate the nonprofit and others from criticizing the marina during a public process before state agencies. He lauded the decision as affirming the rights of advocacy groups around the state to engage in permitting and other issues involving governmental decisions.
The Adirondack Explorer thanks its advertising partners. Become one of them.
“The most important aspect of this decision is that it lifts the fear of intimidation from other nonprofit advocates, groups that are similar to ours around the state,” Gibson said.
What did the 5 fingers say to the face?
SLAPP
Good. Bullying is not a good look.
Naturally missing from the article is, also numerous nearby property owners approve the project.
No, numerous,way more numerous, nearby land owners hate this project and have organized against it.
Not true. Overwhelming majority of residents on Fish Creek Pond and the Channel to Upper Saranac Lake oppose this project. You’ll see the “Save Our Pond” signs dotting the shore of the Pond and the Channel, demonstrating this. Many residents have vowed to never patronize them again.
It’s too large, the operator has lied on paperwork claiming many more existing slips than are actually there. Our family worked there in the past and it was never as full as USM claims.
They’re trying to take over 200 ft of the existing 600 ft pond. The traffic through the Channel has already become more dangerous with the overly large pontoon boats the marina has rented out to inexperienced and rude drivers. Marina workers have even yelled at boaters passing “too close” to their newly placed buoys “marking their territory”.
Good news is that the marina was virtually empty last week and Labor Day weekend, when it was always full for the last weekend of the summer when the Hickoks owned it.