Niagara Gazette

August 29, 2013

Judge rules in Maid of the Mist's favor, Hornblower legal challenge dismissed

Staff Reports
Niagara Gazette

A state supreme court justice from Niagara County has dismissed a legal challenge to the Maid of the Mist Corp.'s ongoing efforts to build a new storage facility on the American side of the Niagara Gorge.

In a decision issued Thursday, New York State Supreme Court Justice Catherine Nugent Panepinto ruled that state officials, including New York State Parks Commissioner Rose Harvey and New York Power Authority President and CEO Gil Guiniones, acted appropriately and within the law when they agreed to modify the terms of a 2002 agreement between the state and the Maid to allow the storage facility to be built. 

Hornblower Cruises, a California-based firm that will begin offering boat tours of its own from the Canadian side starting next year, had challenged the legality of a 2012 memorandum of understanding that altered the terms of the Maid's original deal with the state. The company's attorneys argued that state officials entered into the modified agreement without seeking competitive bids for the project as required by law. 

In her ruling, Panepinto noted that the court is compelled to "exercise a high degree of judicial deference to the involved state agencies" and that the court may also "recognize other reasonable interpretations of the work described in the amendment." Panepinto determined that it was "not irrational" for the New York State Comptroller's Office to conclude that the docking facility "does not alter the identity or main purpose of the original contract." Her ruling describes the state comptroller's conclusion that public bidding was not required prior to construction as "reasonable."

"This is just another confirmation that everything was done properly," said Maid attorney Brian Gwitt. "From the Maid of the Mist's standpoint, they believed they did everything properly and this is just confirmation." 

Officials from Hornblower could not be reached for comment Thursday evening. 

Gwitt said Hornblower's attorneys have 30 days to decide if they want to appeal. For now, Gwitt said, the decision clears the way for work to continue on the Maid's storage facility, which is currently under construction on the former site of the old Schoellkopf power station. If all goes as planned, Gwitt said the company will have its facility completed in time to allow for its boats to be removed from the water before winter. 

"Everything is expected to be in place before fall," Gwitt said. 

Completion of the project would allow Maid of the Mist boats, which have been ferrying passengers along the lower Niagara River since 1846, to continue their trips next year, and beyond. At least one legal challenge remains as the Niagara Preservation Coalition, a local group that maintains state and federal agencies failed to protect the integrity of the historic Schoellkopf site by allowing the Maid's project to move forward, is asking a federal judge to intervene on its behalf. The group filed the federal lawsuit after having several similar cases dismissed at the state level. A temporary restraining order that temporarily halted the construction project was lifted on procedural grounds in state supreme court in April. 

The coalition also filed a request for a preliminary injunction in June after members of the group took pictures of steel girders from the site being loaded into bins destined for the scrap yard. A panel of judges in the state supreme court’s appellate division denied that request.