SARANAC LAKE - The Adirondack Wild environmental nonprofit group and Adirondack Explorer environmental nonprofit news outlet are asking a Franklin County Supreme Court judge to dismiss a defamation lawsuit filed against them by the owner of the Upper Saranac Lake Marina.
The organizations call the lawsuit "frivolous" and allege that it constitutes a "SLAPP" suit meant to discourage public comments on an expansion the marina has proposed to the Adirondack Park Agency.
Marina owner Mike Damp filed the lawsuit last month through Lake Placid attorney Matt Norfolk. The lawsuit accuses both organizations of defamation through an advertisement the Adirondack Wild paid for which ran in the Adirondack Explorer.
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Allegations and defense
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The full-page ad on the inside cover of the November-December edition of the Explorer's bi-monthly magazine alleges potential harm to the environment and public use of the waters near the marina and requests public comment to be made on the marina's application to the APA, which it called "out of scale" with the surrounding natural environment. The lawsuit alleges that the statements in the ad were "largely false, fraudulent, misleading and defamatory."
Adirondack Wild is mostly arguing that the statements made in its ad are either factual or opinion protected by the constitution.
"Our announcement published in the Adirondack Explorer combines factual information drawn from USL Marina's own application to state agencies combined with our opinion," Adirondack Wild Managing Partner David Gibson wrote in an affidavit.
But Norfolk said the Adirondack Wild was using outdated information, pulling from a two-year-old application that is not longer in front of the APA, instead of the most recent documents detailing the smaller current application.
The ad claims the marina is planning a "four-fold increase" in dock size - replacing the existing 8,600 square feet of docks with 34,000 square feet. Those are the numbers in the marina's 2022 application to the APA. But since then, those numbers have been reduced drastically.
North Woods Engineering co-founder Joe Garso, who is designing the project, said the current plan is for a 27% increase with 13,297 square feet of total covered dock area - 10,901 square feet of actual docks and around 2,400 square feet of covered slips over water.
The Explorer's lawyers mostly co-sign of Adirondack Wild's lawyers' arguments in their motion to dismiss the lawsuit, but also say that the Explorer is not liable for Adirondack Wild statements.
"(The) statements are part of a paid advertisement and do not purport to represent the Explorer's views," the newspaper's motion reads. "The Explorer cannot be liable for defamation. ... News sources such as the Explorer are not liable for the content of their advertisements."
Norfolk feels newspapers should have to vet the ads they publish.
The Explorer's lawyers cite case law stating that "absent a special relationship between a newspaper and an advertiser, a newspaper is not liable for misstatements in advertisements."
"The Explorer is not alleged to have any special connection to the Wild," the lawyers state, adding that nothing suggested the Explorer was taking a position on this issue.
"The Explorer did not edit or otherwise contribute to the content of the ad," Adirondack Explorer Publisher Tracy Ormsbee wrote in an affidavit. "No one at the Explorer had reason to believe the ad ... contained false or misleading information."
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SLAPP
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Both organizations argue that the marina's lawsuit constitutes what is called a "Strategic Lawsuit Against Public Participation" - or a lawsuit filed for the purpose of discouraging public speech on a public issue.
"There is no basis for this lawsuit, aside from USL Marina's sole purpose to intimidate and harass Adirondack Wild," Adirondack Wild's lawyers wrote.
Since Adirondack Wild's ad was about the marina's permit application to a state agency, they argue it is a public issue since the APA accepts public comment on the application.
Norfolk said the lawsuit could have been avoided, so it can not be a targeted SLAPP suit.
In December, Norfolk sent both organizations cease and desist letters laying out the issues taken with the ad and requesting a retraction, apology and explanation, adding that without one, they would pursue legal action.
"By not doing anything, they effectively chose litigation," Norfolk said.
Gibson said the letter was "threatening."
"This letter was a clear attempt to intimidate and harass Adirondack Wild's members and stop any future comments about the proposal," he claims. "It is overtly plain that USL Marina is improperly attempting to silence our public participation in their application before a public regulatory agency by filing this lawsuit."
"(The lawsuit) is nothing more than an attempt to silence Adirondack Wild's participation in the pending permit application because USL Marina fears any opposition to its proposal and how the truth and public participation may impact it," the motion to dismiss reads.
If Franklin County Judge John Ellis decides this is a SLAPP suit, it shifts the burden of proof to the marina to overcome a motion to dismiss. The marina would need to demonstrate the merit of its claims and show "clear and convincing evidence" that Adirondack Wild made the statements "with knowledge of its falsity or with reckless disregard of whether it was false."
Gibson and Adirondack Wild's attorneys say the information they published was factual since they gathered the data from the marina's permit application to the APA.
Norfolk believes members of Adirondack Wild had to know there were new documents. The ad refers to an application made "this summer." He said the ad had a "reckless disregard for the truth."
The lawsuit alleges the organizations made inaccurate statements with intentional malice. It claims they knew these statements were allegedly false and made them anyway in an attempt to stop the project "on false pretenses."
Adirondack Wild and the Explorer's lawyers say the marina lawsuit fails to sufficiently plead the elements of defamation. It needs to prove "actual malice," and only mentions that term once in the documentation, they say, without backing it up with documentations or facts.
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What happens next?
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If the statements in the ad are false, if the organizations are liable for them or if the lawsuit is a SLAPP suit is up to Ellis to decide.
Norfolk said he will file an opposition to the motion to dismiss with the court. Then, Adirondack Wild and the Explorer will have opportunity to respond, with a potential for oral arguments. Then Ellis will decide if the case continues or is dismissed.
Norfolk believes these motions to dismiss the suit will be denied.
This marina project is set to go in front of the APA soon.
The marina owners are seeking punitive damages on the green group and magazine of at least $1 million, as well as damage compensation for alleged financial losses of at least $25,000 and at least $25,000 for attorney, engineer and biologist fees to address the alleged adverse impacts of the language.
The lawsuit also demands a retraction of the statements, an apology from both groups and an explanation to the people who saw the ad.
Adirondack Wild and the Explorer are seeking to have the court make the marina pay for the attorney fees, as well as compensatory and punitive damages.
Adirondack Wild is represented by Philip Gitlen and Anna Seitelman of the Albany-based Whiteman Osterman and Hanna law firm. The Explorer is represented by Charles Updike of the New York-based Schoeman, Updike and Kaugman law firm.
More details on the initial lawsuit can be found at tinyurl.com/yc5dsbn6.