Orange Environment, Inc.

Mohawk Mountain Casino 20041027

Mohawk Mountain Casino 20041027

Mohawk Mountain Casino 20041027

Box 25, Goshen New York
845 294 5852

October 27, 2004

Town of Thompson Planning Board
4052 Route 42
Monticello, N.Y. 12701

Franklin Keel
Regional Director
Bureau of Indian Affairs
Eastern Regional Office
711 Stewarts Ferry Pike
Nashville, Tn 37214

National Indian Gaming Commission
1441 L Street NW 9th Floor
Washington DC 20005

66-Acre Fee-to-Trust Acquisition and Casino Project, Sullivan County, New York

I am writing as President of Orange Environment, Inc., a not-for-profit, tax-exempt organization concerned over its 21 years with protecting the integrity of the environment and communities of Orange County and its region and promoting sustainability.

I wish to address two urgent issues. First, there is the matter of our standing as an interested party in this matter, which has not been addressed. Second, the responsiveness summary prepared for this DEIS fails to subsequently address any of the issues that I raised. It might better be termed an unresponsiveness summary. You will err if you accept it as submitted.

In our scoping letter of December 2003 and our response to the DEIS and SDEIS of June 23, 2004, I asked you to consider OEI to be an interested party with regard to this application. As a result, we should be on the mailing distribution list for documents and notices regarding this matter. As we have not been getting correspondence, I wanted to make certain that you noted our involved status. In this regard, please direct Orange Environment correspondence on this matter directly to me:

Michael R. Edelstein, Ph.D., President, Orange Environment, Inc.

26 Murray Ave., Goshen, NY 10924

Despite the lack of due and proper notice, we have become aware of a resolution adopting a responsiveness summary for the Mohwak Mountain Casino Resort that is on the agenda for the Planning Board of the Town of Thompson this evening. We were also able to receive a copy of some pages from the Responsiveness Summary, despite the fact that its completion has not been noticed, the document was not made publically available, and we are not aware whether this document was prepared for and is being accepted by Thompson alone or whether the same document is under potential acceptance by the other two lead agencies. We are not aware of the status of a full FEIS, whether the responsiveness summary is being consider to be the FEIS, and whether a comment period or hearing has been designated for the FEIS. Given that virtually no information is available to the public regarding this matter, that callers to Thomspon’s Planning Board have been regularly referred to the applicant’s attorney for information (but then given little), and that our own calls netted only the information that there will be no comments allowed or received documents read before tonight’s vote, we can only conclude that the process has lost all compass and that there are clear violations of NEPA and SEQRA in terms of public notice, public information sharing, and public comment.

Moreover, the Responsiveness Summary that we reviewed is so clearly unresponsive to the issues we and others raised during the review of the DEIS, that there is clearly a substantive failure as well as a procedural one.

In our June 23 testimony, submitted in writing on that date, OEI called for the lead agency(ies) to hold an administrative hearing in order to resolve factual discrepancies between the DEIS and SDEIS presented by the applicant and expert evidence referred to and cited in our testimony (and subsequently submitted directly to you by Orange County and Goshen). The adjudication is required in order to properly inform decision makers about adverse impacts of granting the casino permits, impacts that would require that the application either be denied, mitigated, or that would have to be consciously traded off in the agency(ies) balance of social, environmental and economic impacts. Unless a factual record is presented, a proper decision under NEPA or SEQRA cannot be achieved.

In the Responsiveness Summary, the matter of adjudication is dismissed on pages 7 and 8 in words that imply that the respondent did not understand what procedural issues are involved. An adjudicatory hearing is required when there is a dispute over information the outcome of might determine whether a permit should be granted or not, or if granted, significantly modified. This situation pertains in the current matter. OEI is quite aware of the difference between a legislative and administrative hearing. You have held the former. The latter is now demanded. Our call for this hearing cannot be dismissed as part of a Responsiveness Summary. Rather, to dismiss our demand, you must find that there is no dispute of substance that would influence the outcomes of the permit decision. You have not done so. Nor, given the incongruence of evidence, can you.

In our testimony, we principally discussed the adverse impacts on regional traffic, the attendant air pollution resulting from these impacts, and related secondary impacts. We assert that it is neither prudent nor legal for you to issue casino licenses without considering these and other documented impacts. Subsequent to the hearing, three parties from Orange County attempted to submit testimony, Planning Commissioner David Church, Goshen Mayor Scott Wohl and County legislator Jeffery Berkman. In particular, the first two of these parties specifically cited expert reports that factually contradict the DEIS and SDEIS and support OEI’s position that adverse impacts will occur due to this project.

The involved agencies have apparently refused to receive the testimony from these parties, citing lateness of submission. On that matter, as I was present at the hearing, I confirm Church, Wohl and Berkman’s assertions that the submission date was extended at the meeting. Accordingly, you are in error in denying entry to the record for these submissions.

However, regardless of whether you eventually enter these submissions directly to the record, you must consider them as corroboration of OEI’s testimony. As a result, as we asserted in our testimony given and submitted at the DEIS hearing,

1. significant adverse impacts are identified by experts who can testify at an administrative hearing and which corroborate our claim that there will be significant adverse effects to the roads and air of Orange County (and therefore the life, commerce and health of our citizens) and that no permits can be issued until the nature of these impacts is recognized, evaluated, and mitigated if possible. If no sufficient mitigations are forthcoming, you will have to weigh the adverse effects on Orange County against any benefits in properly reaching your decision as to whether to issue or not the requested permits. We believe that the extreme extent of impact may well impede you from reaching a favorable decision for the applicant.
2. these impacts are not recognized by the applicant’s documents, which examine the issues of impact to Orange County only superficially and which then smiss them. These conclusions are clearly self serving and unprofessional. Where any methodology or justification for the conclusions is cited, significant methodological problems remove any validity or reliability from the data. The applicants findings are therefore without scientific merit.
3. there is a factual conflict over whether significant adverse effects will be caused by this project or not. Resolution of this conflict is necessary in order to achieve the level of informed decision contemplated by NEPA and SEQRA.

Unless adverse traffic and related air and other impacts are mitigated in this project, we argue that these impacts are of sufficiently severe and significant weight as to require denial of the permit. Such impacts must be considered cumulatively with other projects and factors influencing traffic, air and other adverse changes. Competent experts stand ready to present evidence to support our claim. It remains for you to create an adjudicatory hearing to resolve these issues.

We will be pleased to work cooperatively to bring about a serious and helpful hearing. However, we will not stand by and allow you to disregard matters of grave importance to residents of Orange County that stand to be harmed by the proposed project. The absence of an understanding of these impacts will prevent your agencies from achieving the proper balance between environmental, social and economic impacts.

I am submitting these comments by fax to the Town of Thompson Planning Board. Written copies are on their way to all involved agencies. I ask that the secretary or chair read these comments into the record for tonights’ hearing. And I ask that the responsiveness summary be denied and an adjudicatory hearing be scheduled.

Thank you.

Michael R. Edelstein, Ph.D.