New York Lawsuit:

William M. William M. Windsor ("Windsor")

vs. State of New York and Maid of the Mist

FACTS

H.   Efforts by William M. Windsor ("Windsor") to get 2002 NY License Invalidated

172.  In March 2009, William M. Windsor ("Windsor") sent letters to the Counsel for the New York Office of Parks Recreation and Historic Preservation ("OPRHP") and to Mr. Mark Thomas of the Niagara Falls State Park ("NFSP") asking that the Maid of the Mist Corporation ("MOTM") license at Niagara Falls State Park ("NFSP") in New York be voided and that the contract be tendered for bids.  [Exhibit 28 and Exhibit 29.]

173.  There was no response to these letters. 

174.  An article in the Buffalo News that came to William M. Windsor ("Windsor")’s attention in Spring 2009 said: “Maid of the Mist’s Canadian contract helped pave the way for the 2002 renewal of its 40-year contract with the New York Office of Parks Recreation and Historic Preservation. No bids were taken and no public hearing was held because the Canadian agreement gives the company exclusive access to the river below the falls, making it a ‘sole source’ provider,” quoting Angela Berti, a spokeswoman for Niagara Falls State Park ("NFSP").  “The Maid of the Mist lease in this state describes the company as the ‘sole commercial entity with rights of access to provide scenic boat excursions from landings both on the American and Canadian sides of the lower Niagara pool.’”  [Exhibit 26.]  (emphasis added)

175.   William M. Windsor ("Windsor") investigated.   He spoke with the International Boundary Commission, the International Joint Commission, the Office of Homeland Security, The Niagara Bridge Commission, and the United States Coast Guard to confirm beyond any doubt that the waters of the river below the Falls are shared by the U.S. and Canada by agreement.  

176.  William M. Windsor ("Windsor") spoke with the Canadian head of the International Boundary Commission.  See http://en.wikipedia.org/wiki/International_Boundary_Commission#International_Boundary_Commission and http://www.internationalboundarycommission.org/contact.html.  The International Boundary Commission is responsible for marking the boundaries between the US and Canada.  William M. Windsor ("Windsor") spoke with Doug Culham, 575-615 Booth Street, Ottawa, Ontario K1A 0E9, Canada, (613) 995-2604, Fax (613) 947-1337, email: doug.culham@nrcan.gc.ca.  Mr. Culham, the director for Canada, confirmed that the border is right down the middle of the river.  He referred William M. Windsor ("Windsor") to the International Joint Commission, which deals with water issues between the US and Canada. 

177.  William M. Windsor ("Windsor") spoke with Bernard Beckhoff of the International Joint Commission, and he confirmed that the waters along the Niagara River and beneath the Falls are shared by agreement with the two countries.  He also confirmed that the border runs right down the middle of the river.  See http://www.ijc.org/en/contacts/contacts.htm.  Bernard Beckhoff, Public Affairs Adviser, 234 Laurier Avenue West, 22^nd Floor, Ottawa, ON K1P 6K6, 613-947-1420, Fax: 613-993-5583, Email: beckhoffb@ottawa.ijc.org.  Also see http://en.wikipedia.org/wiki/International_Joint_Commission

178.  So, the International Boundary Commission, the International Joint Commission, the Office of Homeland Security, The Niagara Bridge Commission, and the United States Coast Guard are unanimous.  This means that the excuse given by Niagara Falls State Park ("NFSP"), Angela Berti, and New York Office of Parks Recreation and Historic Preservation ("OPRHP") for why the 2002 NY License was not tendered for bid was false.  This further means that the policies of the New York Office of Parks Recreation and Historic Preservation ("OPRHP") and the State of New York regarding tender of bids for licenses/contracts were not followed.

179.  William M. Windsor ("Windsor") asked counsel for New York Office of Parks Recreation and Historic Preservation ("OPRHP"), Mr. Glen T. Breuning, to advise him if New York Office of Parks Recreation and Historic Preservation ("OPRHP") would tender the License for bids.  William M. Windsor ("Windsor") further advised that he would file a legal action in New York, as he had in Ontario, to invalidate the 2002 NY License and to mandate that the published tender process be followed.  [Exhibit 28.] 

180.  Despite as many as 10 requests for Mr. Glen T. Breuning to return William M. Windsor ("Windsor")’s calls, Mr. Breuning ignored them all and never called or responded in any manner.  [Exhibit 28.]  Why wouldn’t the legal counsel for a government agency respond to someone with a legal issue?  William M. Windsor ("Windsor") suspects that Mr. Glen T. Breuning may be part of a conspiracy regarding this illegal contract.

181.  William M. Windsor ("Windsor") filed a Contract Protest on March 4, 2009 with the New York State Office of the State Comptroller (“New York State Office of State Comptroller ("NYSOSC")”).  William M. Windsor ("Windsor")’s Protest is attached as Exhibit 31. 

182.  On March 11, 2009, Maid of the Mist Corporation ("MOTM") filed a response to the protest filed by William M. Windsor ("Windsor") to void the license in New York State.  The response was authored by Mr. Marc Brown (“Mr. Brown”) of Phillips Lytle in Buffalo and was filed with Ms. Charlotte Breeyear (“Ms. Breeyear”) of the New York State Office of State Comptroller ("NYSOSC") Bureau of Contracts.  [Exhibit 32.]

183.  Ms. Breeyear and attorney John Dalton with the New York State Office of State Comptroller ("NYSOSC") advised William M. Windsor ("Windsor") that NY State could not take action on his protest because it was too late for a protest to be filed.  [Exhibit 33.]

184.  New York State Office of State Comptroller ("NYSOSC") requires that protests be filed promptly, and because of the secrecy of the deal between Maid of the Mist Corporation ("MOTM") and New York Office of Parks Recreation and Historic Preservation ("OPRHP"), William M. Windsor ("Windsor") and others were not aware of what took place in 2002.  [Exhibit 59.]  William M. Windsor ("Windsor") filed his protest as soon as he had obtained the documents that proved the illegality of the 2002 NY License.

185.  On October 28, 2009, November 4, 2009, and November 6, 2009, William M. Windsor ("Windsor") sent demands to the 2009 Government Respondents demanding that the 2002 NY License be terminated and that the elevator service and boat service be tendered for bids.   [Exhibit 34 and Exhibit 35.] 

186.  The State of New York did not respond to William M. Windsor ("Windsor")’s October and November 2009 demand letters.

187.  This Verified Petition is being filed 14 days after the last demand letter and on the date that William M. Windsor ("Windsor") communicated he would file legal action if his demand was not met.  This Verified Petition is also being filed on the date of the expiration of the 1989 Canadian Lease.  The expiration of the 1989 Canadian Lease adds another factor to the illegality of the 2002 NY License.  Mr. James V. Glynn’s company no longer has any future rights in Canada.

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