The Block Island Times

Council modifies DEM/White Buffalo agreement

Town to assume some legal responsibilities
By Stephanie Turaj | Feb 09, 2014

The Town Council has approved new language to a contract between the Department of Environmental Management (DEM) and White Buffalo, the company that will be culling Block Island’s deer herd. The language states the town “shall provide legal counsel” for White Buffalo in the event of any lawsuits filed against the deer culling project that are not related to White Buffalo’s performance.

The Town Council voted 4-1 at its Monday, Feb. 3 meeting to add this language to the contract. Councilor Chris Warfel was the nay vote.

The type of lawsuit that might be defined as not related to the company’s performance, according to White Buffalo President Anthony Denicola, is if “an individual claims the project takes away from the enjoyment of a community.” However, if there is a lawsuit relating to the performance of White Buffalo (i.e. a hunting accident), White Buffalo would be responsible for legal fees.

The DEM issued a statement regarding the matter: “The Agreement with the Town is that they will pay for all of the expenses relating to the deer culling project. The Town therefore has agreed to provide legal counsel for White Buffalo in the event that legal action is instituted against White Buffalo in connection with the project. The Town has agreed to provide legal counsel for the Provider’s defense. Neither the Town nor DEM have agreed to defend White Buffalo.”

The language approved by the council reads: “In the event that suit is instituted against the Provider wherein the plaintiff(s) claim that the Designated Services to be provided hereunder are unauthorized or illegal under state law or regulation, and provided that the allegations are unrelated to the Provider’s performance of the Designated services, then, in that event, the Town shall provide legal counsel for the Provider in the defense of such action. The selection of legal counsel will be in the sole discretion of the Town.”

Island resident Doug Michel opposed this language.

“This [deer culling project] is a contract between White Buffalo and the director of the DEM,” said Michel. “Why are you [the town] defending White Buffalo instead of the DEM?”

Town Manager Nancy Dodge told The Block Island Times that the arrangement came at the “request” of the DEM.

The request to add this language was originally made by White Buffalo President Denicola. Denicola explained to The Block Island Times that he requested this change because it is part of “general boilerplate language” of contracts he has had with other communities.

“This has been an ongoing negotiating of the contract,” Denicola said. “I wanted this language included. From my end, it’s a normal inclusion under most contracts we’ve worked under.”

He made the request to DEM Assistant Director of Natural Resources Katherine Sparks in a Jan. 27 email. Sparks told The Block Island Times that after receiving the email from Denicola, she forwarded the request to the DEM attorney Mary Kay, who was unavailable for comment this week because she is on sick leave.

According to Sparks, Kay discussed the issue with Town Solicitor Katherine Merolla.

First Warden Kim Gaffett also commented at the council meeting, “If anyone takes the route to sue, they will probably sue all three entities [the town, the DEM, and White Buffalo]. It would be more efficient for the town to cover the cost of White Buffalo.”

Denicola said in his email to Sparks, “RIDEM and the Town can mitigate social and legal aspects of the project that they wish to engage in. In addition, I did not solicit this work from the State or Town; the discussed services were requested. Therefore, both the State and Town should assume all risk/liability for potential social disruption or legal challenge to the proposed action.”

Denicola continued in the email, “I assume all liability for my direct actions and indemnify RIDEM and the Town for any repercussions associated with my conduct. The decision to implement this project is the direct action of RIDEM and the Town, therefore both parties should assume all liability for challenges to the project (not actions of the Provider while conducting the project) and indemnify the Provider who is simply providing the service. Alternatively, the Provider could be defended by Counsel representing the State and/or Town, who most likely would be codefendants, which would serve the same purpose of being indemnified.”

Also at the Feb. 3 council meeting, the council approved a second change to the agreement between White Buffalo and the DEM. This change is a “cost of delay” charge once the project begins. If the deer culling project is delayed, White Buffalo will receive $1,000 per day for up to five days during the delay.

In December, the council approved a plan designed to reduce the island’s deer population by about 200, according to the DEM. This plan will include a non-recreational hunt with White Buffalo, a professional sharpshooting company.

Deepwater decommissioning

The Deepwater Wind project was also discussed at the Feb. 3 meeting.

The council voted 4-1 to send a recommendation to the Coastal Resources Management Council (CRMC) regarding the decommissioning of Deepwater’s proposed Block Island wind farm. Councilor Chris Warfel was the nay vote.

The council will recommend that the CRMC look at a report issued by Stanley White Engineering about the decommissioning of the wind farm.

In July 2013, the town hired Stanley White Engineering as a consultant to determine what would be the best method to pay for removing (decommissioning) Deepwater’s turbines. The report found that the best option to pay for this decommissioning would be a mix of funds — such as an escrow account, backed with a surety bond and insurance funds.

The council did not take any other position on the Deepwater wind farm at the Monday meeting. Previously, in Dec. 2012, the council voted 3-2 to support the project; former councilor Sean McGarry and Warfel had been opposed.

“It’s very late to be talking about our position,” said Warfel at the most recent meeting. “We should restrict our vote to the report.” Other councilors agreed.

Warfel, however, voiced his opposition to the Deepwater project. “Based on the research I have done, I think this is a very bad thing for the state,” he said.

The CRMC is the state agency responsible for permitting the wind farm, and scheduled two public hearings, the first on Feb. 4 on the mainland and a second on Feb. 24 on Block Island. A third meeting has now been scheduled for Feb. 27 in Narragansett, although the place and time were not announced as of presstime.

Other matters

Also at the Monday meeting, the Town Council:

- Reimbursed 23 hunters for their purchase of deer tags. Hunters are reimbursed for each antlerless or female deer they kill. A total of $1337.50 will be reimbursed; 107 deer were killed. There will be more reimbursements as the hunting season continues.

- Abated $5,680.31 in 2013 property taxes for 13 individuals and businesses. There were various reasons for the abatements, including duplicate registrations and having moved out of state.

- Determined a rate to lease town land for a Hawker’s and Peddler’s license. Individuals operating food carts on town land would pay $100 for the first year and $250 for subsequent years if it is a year-round business, or $500 if it is a summertime business.

- Discussed with island resident Cindy Kelly about where she could operate a year-round food stand. Kelly had received a Hawker’s and Peddler’s license to operate a food cart at Ball O’Brien Park. However, she said this location could not be used because of a deed restriction on the property. Kelly plans to return at a future meeting to make another selection.

- Appointed Josh Redd to an alternate position on the town Zoning Board.

- Accepted the 2013 reports from the Block Island Rescue Squad, the Building Official, and the town Wastewater Management Official.

-Set public hearing dates for March 3 to amend two ordinances. One amendment would set regulations to protect hunters from harassment. Another amendment would set zoning regulations for installing solar panels on-island.

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