Northumberland County judge to rule in Kaleta case
SUNBURY - Testimony was presented at Tuesday's 3 1/2-hour preliminary injunction hearing for David F. Kaleta that Northumberland County has no written policy regarding who has access to land designated for the Anthracite Outdoor Adventure Area (AOAA).
It was also made clear that the county planning department decides who is granted access to the property.
But questions remain over whether Kaleta suffered irreparable harm by being denied access to the property and if county Commissioners Vinny Clausi and Stephen Bridy violated the Sunshine Act.
Northumberland County Judge Charles Saylor will rule by the end of the week on both issues.
The hearing included arguments from county attorneys John Muncer and Frank Garrigan, and Kaleta's legal counsel, Kymberley Best and Timothy Bowers, and featured testimony from five witnesses, including three commissioners, Kaleta and county planning and industrial development director Pat Mack. But the judge said he needed time to review all the testimony before rendering a decision.
The injunction was filed Sept. 17 by Kaleta's attorneys in conjunction with Kaleta's lawsuit that claims the county, Clausi and Bridy violated the Sunshine Act and committed First Amendment retaliation in denying Kaleta's request for a waiver that would allow him to enter the county-owned property.
Commissioner Richard Shoch, an attorney who has practiced municipal law for 10 years, said he is familiar with the Sunshine Act. The commissioner said he did not approve of a Sept. 10 letter issued to Kaleta by Mack, banning him from the AOAA. Shoch testified that there was no reason for denying Kaleta access to the land and that the county doesn't have a policy regarding who can and cannot access the property. He also said the county doesn't have a policy on waivers of liability that protects the county from being sued if anyone is injured on the land.
Shoch said he found it unusual that he wasn't consulted about the letter sent to Kaleta.
Shoch said he hunted with Kaleta and others on the property now designated for the AOAA prior to becoming a commissioner. The commissioner said he didn't realize a waiver needed to be signed to be on the land until being informed by planning department grants manager Kathy Jeremiah after he took office in early January.
Under questioning by Bowers, Shoch said, "Nobody told me what would be done if Mr. Kaleta was found on the land and nobody else received such a letter."
Shoch said he didn't recall anyone being arrested for trespassing on the land.
The commissioner said the language listed in the letter to ban Kaleta from the land is not consistent with the Sunshine Act and believes Kaleta's rights were violated.
Bowers argued, "The county attempted to circumvent the Sunshine Act by holding a special meeting, which was illegal." That meeting was scheduled for Monday morning, but was canceled because it was deemed illegal since the commissioners did not have at least 24 hours notice of what items were listed on the agenda.
Under cross examination from Muncer, Shoch said the prior board of commissioners passed a motion Nov. 16, 2011, to allow the planning department to issue permits for events on the AOAA. He said there is nothing in the motion regarding permits for individuals.
Muncer stressed throughout the hearing that the planning department controls who has access to the AOAA and other county-owned land and handles day-to-day operations involving the property.
Mack testified that his department is responsible for establishing AOAA policies in cooperation with the county commissioners.
The planning director said he has no authority to issue permits to individuals to access the property and there is no written policy regarding who has access to the AOAA land.
Mack said other people have been denied access to the land, but Kaleta was the only person issued a letter denying him access. He said the other denials were issued through e-mails or telephone conversations.
'Booby trap' found
Mack said Clausi directed him to write the letter to Kaleta, banning him from the land due to their "tense" relationship.
He also said Kaleta never implied why he wanted to use the land or when he wanted access to it.
After receiving a waiver form from Shoch for Kaleta, Mack said he went to Clausi for advise because of the "unique" situation involving a commissioner asking for a waiver for someone. But Mack claimed Clausi stated, "We aren't letting him on there."
Mack said Kaleta went on the land last fall without seeking permission, but was not cited for trespassing.
He said a "booby trap" found in late August on AOAA land, which is the alleged reason why the commissioners didn't want anyone on the land, was discovered before Kaleta requested a waiver to be on the land.
He said only tour groups and participants in sanctioned events approved by the planning department are allowed access to the AOAA.
Mack, whose department is overseen by Bridy, said he never met with more than one commissioner at a time to discuss the letter sent to Kaleta.
Mack said the "booby trap" was turned over to his department and a police investigation into the matter is ongoing.
Bowers pointed out that Coal Township police weren't notified about the "booby trap" until Sept. 21, which was after Kaleta filed his lawsuit.
Mack said an event scheduled for this weekend at the AOAA has been canceled due to the ongoing investigation and that no one will be allowed on the land until the probe is complete.
Bowers asked Mack how long it would take to clear 6,500 acres of property to make sure more "booby traps" didn't exist. Mack replied, "Quite a long time. It could take forever."
Bowers told the court there are many other dangerous things on the land including old mine shafts, stripping pits, cliffs and torn up trails.
Mack said a resolution was passed by the previous board of commissioners to approve a master site plan for the AOAA that provides the planning department with a guide to establishing rules and regulations for the AOAA. He said the county is in the process of forming an authority for the AOAA that will be responsible for operating and maintaining the land.
Bridy, who serves as vice chairman of the board of commissioners, testified that motions dealing with the AOAA were listed on the agenda for Monday's special meeting.
But he said the real impetus for the meeting was to prohibit access to anyone on the AOAA until police concluded their investigation involving the "booby trap" found on the land.
He said, "That's a real danger. We have to look at life and liability and have to protect the people. We don't want anybody going on that property until the investigation is complete."
When asked by Bowers why the "booby trap" wasn't brought to the public's attention shortly after it was found, Bridy replied, "Because it would interfere with the investigation."
Bowers then responded, "There is a known danger on public land that thousands of people use every year, but Coal Township police aren't notified until Friday (Sept. 21)."
Bridy said he believes all waivers involving the AOAA should be left up to the planning department and don't need to be discussed at a public meeting.
10K man hours
Kaleta, a 54-year-old former taxidermist from Shamokin who is on disability, talked about his volunteer work with the former Habitat for Wildlife (HFW) and other environmental and conservation groups. He said HFW, which was disbanded earlier this year due to the controversy with the commissioners and planning department, planted 40,000 trees on county-owned property in the past 12 years.
Kaleta estimated that he has spent 10,000 manpower hours doing volunteer work and spends 80 percent of his time on county-owned property doing cleanup projects, walking his dogs and taking his grandchildren for walks. The witness said he has also assisted police in solving a timber theft investigation and catching people who litter on the property.
The witness said he has hunted on county-owned land with Shoch and state game commission members and was never told to get off the land until recently when he became critical of how the land was being used.
"That land means my life to me," he said. "I've loved it since I was a little kid. Nature is my thing. But I can't take anyone there now."
Kaleta said he supports the AOAA if it is done in an environmentally-safe manner and includes everyone, not just motorized vehicles.
He testified that he went "ballistic" after being informed that the county posted signs on the land prohibiting hunting, fishing and trapping.
When asked by Garrigan if he could hunt and walk his dogs and grandchildren on other county-owned land, Kaleta responded, "I can't show my grandchildren the trees I planted on the other land."
When questioned by Garrigan about his disability, Kaleta said he suffers from chronic fatigue syndrome, chronic Lyme disease, obsessive compulsiveness, arthritis and short-term memory loss.
Clausi, who is vacationing in Florida, was allowed by Saylor to participate in the hearing by telephone. After listening to testimony for about three hours, Clausi was called as the last witness.
He was questioned by Best, who formerly served as county solicitor and chief clerk before being terminated and subsequently suing the county for wrongful termination.
Clausi, who could be heard slightly laughing on the phone when Best identified herself, answered some questions very fast and wasn't clear on some responses, prompting the court stenographer to ask him to repeat his testimony at times.
He testified that it was Mack's decision to send the letter to Kaleta, banning him from the land. The commissioner, who supported sending the letter, denied ever seeing a waiver form requested by Kaleta.
Clausi said, "Mr. Kaleta should be happy because we didn't want him or anyone else getting hurt on the land after the 'booby trap' was discovered. I directed the special meeting to be held to protect the people of Northumberland County."
When asked by Best if he understood what the Sunshine Law is, Clausi replied, "Yes, you taught me what it is." His response drew brief laughter from those in attendance.
In his closing argument, Bowers argued that his client suffered irreparable harm by being denied access to the AOAA and that Bridy and Clausi violated the Sunshine Act. He said there are no written guidelines or policies governing access to the land.
Muncer argued that Mack, and not the commissioners, made the decision to issue the letter to Kaleta, denying him access to the land. He said Mack had the authority to take the action in his role as planning director.
Garrigan said it was highly improper to reprimand the commissioners for their actions or inactions.
After the hearing, Best said, "We did the best job we could in presenting Mr. Kaleta's case while bringing out to the public the way the commissioners conduct county government and their attempt to do so in secrecy. Either way, the people now know what's going on."
As for the discovery of the "booby trap" on the AOAA, she said, "The land itself has inherent dangers. The 'booby trap' is irrelevant and the timing is suspect. Why didn't they tell us about it immediately?"
Bowers said he was told by Garrigan at a pre-hearing conference last week that the "booby trap" would be in court Tuesday, but the item was not present.
Muncer and Garrigan reserved comment after the hearing.