Local government leaders in Lewis and St. Lawrence counties have tried for years to rapidly expand the use of public roads and public lands for All Terrain Vehicle (ATV) recreational use. This has been controversial and has resulted in a series of legal challenges. The most recent action was in the Town of Colton, where the Town just announced it plans to withdraw its local ATV law passed in August after a legal challenge by affected property owners was filed.
For more than a decade in the western Adirondacks and Tug Hill, local residents have repeatedly gone to court to stop aggressive local and county governments from illegally opening public roads to ATV riding. These same local governments also seek access to nearby Forest Preserve, state forests and conservation easement lands for ATV use. Three ATV law related lawsuits are currently pending in Lewis County.
Undeterred by his recent setback, the Town Supervisor of Colton stated that he plans to re-file his ATV law soon, once it’s fixed to withstand a legal challenge. This pattern of ATV laws enacted, challenged by local residents, defeated in court, and then re-filed slightly changed has been the norm in Lewis and St. Lawrence counties for over a decade. The ongoing attempts to expand ATV use in the Adirondacks to public roads and public lands merits serious attention.
For many, ATVs are an enjoyable form of recreation. Yet their growing popularity poses significant problems. The environmental damage from ATV use is widely understood. (Protect the Adirondacks recently reissued Rutted and Ruined: ATV Damage on the Adirondack Forest Preserve that was originally published in 2003. The book Thrillcraft: Environmental Consequences of Motorized Recreation also catalogues the many natural resource abuses that ATVs and other off road vehicles can cause.) While most riders are law-abiding citizens, trespassing on private property remains a serious concern.
The sale of ATVs is big business. The Governmental Accountability Office estimated that there were 10.2 million ATVs in operation in U.S. in 2008, up from 3.6 million in 1999. Good stats are hard to come by, but estimates are that there are more than quarter million ATVs in New York. In 2000, over 92,000 were registered, with heavy concentrations in the western Adirondacks and Tug Hill areas.
Many people who purchase ATVs don’t have a suitable place to ride them. The response of ATV enthusiasts to this predicament has been twofold: 1) Many private ATV clubs that sport their own private trail networks have opened over the past 10 years as have private commercial ATV riding parks; 2) Riders pressure local and state officials to open public roads and public lands for riding.
In Colton, the town passed a law last August to open 3 miles of roads to ATVs that would help to make an east-west connection for a regional Franklin-to-Jefferson Counties ATV trail system. Local activists, headed by Mary Jane Watson and others, challenged the law. They argued the Colton law violated the NYS Vehicle and Traffic Law (VTL) and the State Environmental Quality Review Act (SEQRA). When Watson and company filed their lawsuit, St. Lawrence County announced it would support the Town of Colton. None of these local residents is an attorney, but Watson and company represented themselves pro se in court as citizen litigants. Watson’s legal challenge benefitted from a rich history of court decisions that have struck down various town and county ATV laws. Ernest Hutchins and other Colton residents successfully defeated a Town of Colton law in 2004.
The VTL permits a municipality to open a road to ATV use under two conditions: 1) When the road opened is near a place where ATV use is legal; 2) Where this area can only be accessed by use of this road. The VTL also views ATVs as motor vehicles used principally for off-highway trails and states they are to be “only incidentally operated on public highways.”
The difficulty with local laws opening roads to ATV use is that they are usually intended to simply provide new places to ride, not to provide access to areas where riding is already legally permissible. The VTL creates a burden of proof for municipalities that the courts are unlikely to ignore. Municipalities have to show that it’s impossible to access the permissible location without utilizing a public road system. This is a tall order. For example, if ATV riders can trailer their ATV and drive to riding area, then why do they need road access?
Three legal challenges helped define this test. Santagate v Franklin County (1999), Hutchins v the Town of Colton (2004), and Brown v. Town of Pitcairn (2003) all successfully challenged town/county ATV laws that failed the VTL tests. The Residents’ Committee to Protect the Adirondacks, one of the organizations that merged to form PROTECT, helped with two of these early cases. (Note that the decisions to all cases mentioned in this article are linked at the end.)
These decisions were also instrumental in the New York Attorney General’s Opinion (2005-21) that detailed the limitations and required findings and steps for local governments when opening public roads to ATVs. These cases and the AG’s Opinion provide a blueprint for citizens to formulate legal challenges.
There are two other legal issues that are important. The State Environmental Quality Review Act (SEQRA) requires local government to assess whether laws opening roads to ATV use might result in a significant adverse environmental impact. The other obstacle for municipalities is that they cannot legislate use of state highways in local laws. The recent Town of Colton law included parts of State Route 56.
Lewis County has seen a string of legal challenges to various town and county ATV laws. In 2007, the Adirondack Council and local residents successfully sued to strike down a county law. In 2008, Bruce Krug and other Town of Leyden residents sued the Town to challenge a 2002 law that opened all town roads to ATVs. Krug is a retired diary farmer in Leyden and a former Lewis County Legislator. Settlements were also reached after legal challenges to close many roads to ATVS in the Towns of West Turin and Martinsburg.
Unfortunately, there were no legal challenges among the citizens of the Towns of Croghan, Greig or Diana, in Lewis County, where blanket laws to open roads to ATVS were not challenged and still stand.
In 2009, Nancy O’Brien-Dailey and others, all representing themselves pro se, the first of this type of action, successfully won a lawsuit against the Town of Lyonsdale.
There were also two important ATV use cases that involved the Forest Preserve. In one case, the Black River Valley Four Wheelers sought access to roads that the Department of Environmental Conservation (DEC) had illegally opened in the 1980s and 1990s and then closed under legal pressure in 2005. The DEC and Adirondack Park Agency (APA) had failed to uphold the VTL in opening scores of Forest Preserve roads, mostly in the western Adirondacks. Rutted and Ruined lists many of these roads. After road closure, the Black River Valley Four Wheelers sued the DEC, to reopen these roads, but the DEC won in 2006. More importantly, the Town of Horicon sought to control roads on the Forest Preserve in that town so that they could be used for ATV riding. The DEC won that case in 2006 and an appeal in 2007.
There are three other ATV cases in Lewis County that are in progress now. In one case, Rose Pettit, now deceased, filed an Article 78 lawsuit in 2010 to challenge a Lewis County law. Oral arguments were held in March 2013 and a decision is expected any time. The estate of Rose Pettit is financing this lawsuit, which is being handled by attorney Scott Goldie, who was involved with many of the early ATV cases mentioned above.
Janette Peek of the Town of Watson and Gerald Smith of the Town Pinckney are challenging a Lewis County law that opened roads in the towns of Diana, Montague, New Bremen, among others. This case actually went to trial last fall before a judge in State Supreme Court in Lewis County and is now awaiting a decision. Peek and Smith handled the trial pro se with help from other local activists.
Bernadette DeSantis and Bruce Krug launched an Article 78 challenge to a Village of Constableville local ATV law in June 2013. Krug has since been removed from the case as he did not qualify for standing. Oral arguments were made in September. DeSantis is representing this case pro se. A decision will follow the Peek and Smith case, since the facts are so similar.
ATV riding is an intensive and specialized activity that requires special terrain. It’s a sport like golf or downhill skiing, which requires an altered and specially equipped landscape that will likely involve a fee for use. ATV riding damages public resources because forest roads or trails are simply not built in a way that can withstand ATV use. ATV riders who seek to make the mud fly are best suited to private parks, rather than public lands.
Most rural roads are not built to handle ATV traffic, especially along the shoulders. More importantly, private and public lands along public roads that are opened to ATVs are susceptible to trespass and ecological damage. Communities that have roads opened to ATVs are also vulnerable to severe liability claims and high insurance rates; over 10,000 people have been killed in ATV related accidents since 1985 and over 100,000 are injured annually. ATV safety advocates and the manufacturers also advocate against ATV use on roads, citing a lack protection for riders in collisions and unpredictability of operation at high speeds on paved surfaces.
The Article 78 provision of the NYS Civil Practice Law and Rules exists to allow citizens to challenge government decisions they believe are capricious or wrong. Complaints are often made that Article 78 challenges are burdensome. But as it’s plain to see with the actions of these private citizens in Lewis and St. Lawrence counties, the last line of defense for their communities is a legal challenge. Many cannot afford the expenses of legal counsel and now represent themselves. The task of being a citizen litigant is no small feat and involves lots of time and energy.
These legal challenges are all about holding government agencies accountable. This is as American as apple pie. I’m grateful to the scores of local activists from the initial Santagate decision in the late 1990s in Franklin County to those who are waging legal fights in Lewis County today. These people have made the tough calls and have been willing to undertake a huge amount of work or expenses and stick their necks out to defend their communities and the surrounding natural resources. They deserve the thanks of all of us.
Santagate v Franklin County (1999)
Brown v Town of Pitcairn (2003)
Krug v Town of Leyden (2008)
Town of Horicon v NYSDEC (2006)
Town of Horicon v NYSDEC (2007)