Niagara Gazette

April 11, 2013

Judge lifts ban on Maid of the Mist boat storage facility work, appeal contemplated

By Justin Sondel
Niagara Gazette

Niagara Gazette — Work to make way for new docking facilities on the American side of the Niagara Gorge for the Maid of the Mist Corp's two-ship fleet will continue, at least for now.

New York State Supreme Court Justice Catherine Nugent Panepinto on Thursday vacated a temporary restraining order put in place after a recently-formed environmental and preservation group, the Niagara Preservation Coalition, filed a lawsuit against Maid of the Mist. 

The lawsuit claimed the Maid's plans to build a new boat storage facility on the site of the old Schoelkopf power station in the Niagara Gorge should not go forward for a number of reasons, including environmental concerns, a lack of respect for the historical significance of the property and a lack of fairness in the no-bid nature of the Maid's 40-year contract it signed with the state in 2002.

In court Thursday, Panepinto said she appreciated the coalition's stance and considered concerns raised in the lawsuit reasonable, but ruled that the Niagara Preservation Coalition and its attorney, Linda R. Shaw, did not supply sufficient evidence to keep the restraining order in place.

"There were no affidavits from very specific individuals who say that they suffered specific injuries like not being able to look at a historic resource," Panepinto said. "I appreciate that that might be the case, but I don't think there's been specific proof submitted at this point to establish that."

Attorneys representing Maid of the Mist Corp. and the New York Power Authority - the entity that owns the site - argued that the preservation group was trying to kill the project by delaying it long enough to ensure it could not be completed in time for the company to have its new docking equipment and storage facilities in place before winter.

"We need all this time," Brian D. Gwitt, a Maid of the Mist Corp. attorney, said. "Even these six days lost (since the restraining order was put in place) are detrimental."

Attorneys also raised the issue of the preservation groups ties to Hornblower Cruises, the California boat tour company that won concessions rights in an open bidding process on the Canadian side of the Falls. Hornblower is suing New York state and the Maid of the Mist in an effort to force a bidding process for the concession rights on the American side. 

The Maid of the Mist needs new docking facilities for winter storage because Hornblower now controls the rights to similar facilities in Canada under its contract with the Niagara Parks Commission in Ontario. Under the agreement, Hornblower is scheduled to assume local boat tour operations starting in 2014.

Hornblower and its local attorney, John P. Batolomei, helped Louis Ricciuti, the president of the Niagara Preservation Coalition, incorporate his group and continues to assist the coalition with their legal battle. The coalition's given address is in the same building as Bartolomei's Buffalo Avenue office.

Ricciuti said he was let down by the decision, but that he would continue to fight the alterations to the land "as long as my heart beats."

"It's disappointing, but we're going to see if there are other avenues that we can pursue," Ricciuti said. "Hopefully we can pursue those avenues before the site is destroyed."

Shaw, the preservation group's attorney, said she is going to write a letter to the National Parks Service to describe the work being done on the former site of the Schoellkopf power plant, which was recently added to the national registry of historic places.

"It is not at all clear to me that they know what's happening here," Shaw said.

Shaw said she and Ricciuti will decide quickly whether they will appeal Panepinto's decision.

Pete Gallivan, a spokesman for Gov. Andrew Cuomo's office, said that Maid of the Mist's contractors - Mark Cerrone Inc. - could be back on the site clearing brush and scaling rocks and boulders on the side of the gorge as early as today.

“Today’s decision by New York State Supreme Court Justice Catherine Nugent Panepinto is a win for Niagara Falls, for creating jobs in the region, and for the future of tourism to one of the wonders of the world,” Gallivan said in an email.

Contact reporter Justin Sondel at 282-2311, ext. 2257