Tuesday, October 25, 2016

Constraints on Public Participation in Adirondack Park Management

gate-open-on-chain-lakes-rd-south-allowing-motor-vehicles-in-wild-river-corridorThere are many ways to constrain the boundaries around public participation in decision-making. One way is to sidestep the law without amending it, thereby limiting public awareness and legislative debate of the issues. An example of this is occurring on the former Finch, Pruyn lands where the State wants to issue itself a permit or a variance to allow snowmobile connectors in river corridors when the law says that that motorized recreational activity is not permitted.

Under the Essex Chain of Lakes Primitive Area Unit Management Plan, the State recently argued in Albany County Supreme Court that DEC regulations allow the agency to issue itself a permit or variance to do things that others could not do, like build a motorized bridge over a scenic Cedar River, or operate motor vehicles over a scenic river like the Hudson River. Other parts of these River regulations expressly disallow the State from issuing itself a permit or variance to undertake a project which the statute disallows.

The State also argued in court that because former private owners once permitted motorized uses, these uses are pre-existing and therefore lawful for the public to do when the land became Adirondack Forest Preserve. Those who were involved in writing these laws in the 1970s maintain that land uses existing on private land do not extend to you and to me when the land reverts to public land. They say that to argue otherwise is a plain mis-reading of the Rivers Act. Even allowing for such mis-reading, Wild River corridors are to be treated as Wilderness under the State Land Master Plan. Pre-existing uses are irrelevant. An example is the wild Hudson River south of Newcomb and near the confluence of the Indian River, where a half-mile on either side of the river should be managed as Wilderness. Yet the State has administratively opened the gate into the Indian River tract allowing us all to improperly drive through a one-half mile wide wild river corridor – just as I did the other day. The wild Hudson River is just one-eighth to one-quarter of a mile away.

Plaintiffs Adirondack Wild and Protect the Adirondacks argued in Supreme Court that the State is plainly evading the law and its regulations. We have no desire to be in court, as resorting to litigation is costly in many ways. Before resorting to litigation we had urged the State to seek to do these things through the right channels which are to amend the river laws and regulations it finds objectionable and thereby afford the public through their representatives in Albany and through public hearings the opportunity to debate these matters in public. The State chose not to do this. It is as if the ink on parts of the law state agencies wish to avoid simply disappears. That certainly constrains meaningful public debate and invites a courtroom challenge.

the-wild-upper-hudson-in-background-one-eighth-mile-from-the-motorized-chain-lakes-road-southAnother way to constrain boundaries around public debate is to limit the number of possible alternative courses of action, and the analysis behind these choices. If an agency does not discuss its reasons for presenting an alternative, it’s harder for the public to meaningfully engage. Limiting alternatives analysis is one way to “frame the debate” by not inviting the public to appreciate that there may be a wider range of options for them to consider.  This is frequently done in at all levels of government across the country. A recent example is at the Adirondack Park Agency. We appreciated that APA during its meeting presented a “4th alternative” way to classify the Boreas Ponds tract, but  prior to that only three alternatives were presented as options for future public hearings, with no real Wilderness option. When alternatives become too limited a pre-determined outcome may be sought, or certain aspects of the law or a certain set of interests may be neglected.

With respect to the Boreas Ponds classification options, APA member Chad Dawson made comments at the APA meeting last week which sought to loosen the boundaries of public debate, not constrain them. He argued before his colleagues that APA has a duty to present more alternatives that would allow for the highest levels of wilderness protection at Boreas Ponds, not just for today’s generation for future generations. “I think we need to have an understanding about what these alternative courses of action may mean in 10, 20 years from now,” he said. “Our choice will affect a very long period of time. What is the carrying capacity of Boreas Ponds,” he asked? “If you have a high value wetland there, what are the impacts of allowing motor vehicle use up to the Ponds? What happens to the loons, to moose populations? What if the gravel pits were moved? What if the dam were allowed to deteriorate? We should be asking about a wider range of options here.”

I appreciate that the State has scheduled eight public hearings across the State about the State Land Classifications. The first is scheduled for the evening of November 9th at Ray Brook. This number and diversity of hearing locations invites meaningful public participation in decision-making. The State must set reasonable limits on the number of hearings and the number of alternative courses of action. However, those limits should not lower the state’s standards of its responsibilities under existing law, nor should it narrow all reasonable options for protecting and restoring wilderness conditions.  In speaking to his colleagues last week, APA Member Chad Dawson proposed, and I paraphrase what he said: let’s not simply ask what uses the lands were put to in the past and limit our imaginations to those past uses, but let’s ask additionally what these lands could become in the future? Restoring wilderness conditions where warranted is a big part of our legal responsibility under the State Land Master Plan. We need to try to see the whole landscape and envision its management over a long period of time, he urged.

 


David Gibson

Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for nearly 25 years, much of that time as Executive Director of the Association for the Protection of the Adirondacks and then as first Executive Director of Protect the Adirondacks.

During Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history.

Currently, Dave is a partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.




27 Responses

  1. Todd Eastman says:

    Thanks for the analysis Dave!

  2. Justin Farrell says:

    Dave,
    Just wondeting if we might be able to get an explanation for BeWild NY’s sudden change of support from a 1 mile walk to Boreas Ponds to 6.8 miles..?

    I’m also curious to hear your thoughts on the current gate located about midway along Gulf Brook Rd being the permanent public parking area..?

    Or are you too also just hoping that it will end up beng the final compromise, instead of a reasonable alternative that is worth public discussion?

    – Justin

    • Diane says:

      BeWildNY has not changed position…”at least one mile buffer.”

      • Justin Farrell says:

        Thanks Diane,
        I think I may have confused myself with BeWild & Adirondack Wild. My apologies. The whole Boreas Ponds/Gulf Brook Rd debate has my head spinning around in circles out of control haha! 😉

  3. Larry Roth says:

    There’s one other way to limit public participation and that’s the high cost and limited options to bring the state to court. Lawsuits against the state are about the only way to get an independent review of state decisions, and the odds are greatly in the state’s favor.

  4. Bruce says:

    If as Mr. Gibson says, no motorized corridors are allowed in Wilderness areas, how was it possible to build I-87? Was not some of the land it passes through already in Wilderness status?

    • Truth says:

      I-87 was completed in 1967. The wilderness classification in the Adirondack Park, with the guidelines we know today, was not put into place until the early ’70s with the adoption of the first Adirondack Park State Land Master Plan. Until then, the land was simply Forest Preserve. That being said, and constitutional amendment was required to allow for the construction of the Northway over Forest Preserve lands.

  5. Marco says:

    Thank you, David Gibson. The DEC state department, has the right to issue variances.

    I think such things are needed to protect the wilds and to allow human recreation safely. They did not envision bicycles climbing mountains for example. Hell, they could “variance” the entire park to death. But each one must have a rationale, written and attached to the appropriate area as it is created.

    These could be changed by simply having visitors write in why or why not they should be maintained or removed. For example: a TBD number in TBD time would trigger an action hearing(a series of three meetings with a forth deciding to accept or reject) within TBD time frame(say 1 year) with the OLD variance automatically removed on the date of the fourth meeting. The last hearing would determine a new variance (perhaps acceptance of the old one with changes, perhaps a default action.) Again, this is only one possible example. The system now is simply too cumbersome, requires too much legalese, and, too much time to change, and//or, remove.

    Without some sort of system, the current law lets the DEC create variances when needed without ANY control over removing them or review when they are no longer needed. They work FOR the people of NY, after all.

    • Larry Roth says:

      They work for the people – but they get their orders from the Governor and have to work with the budget the Legislature gives them, once the lobbyists have their say.

  6. Paul says:

    I don’t think it matters what the people who wrote the laws in the 70’s think now. What matters is how the court rules on the issue. That is what they are for when there is a question. You can’t be like “we wrote pre-existing use” but what we meant was “pre-exisiting public use”. It is what it is.

    • Todd Eastman says:

      I gather you are not an “Originalist”…

      • Paul says:

        Actually if the law was originally written to cover all preexisting uses, it doesn’t matter what the drafters think now what matters is what they wrote then. That would probably be considered and pretty originalist look at it.

    • Bruce says:

      Paul,

      This is not a uniquely Adirondack problem. In North Carolina we have the same often misleading information coming from environmental groups concerning the use of our National Forest land, all 1.4 million acres of it.

      Every few years, the National Forest Service comes out with a new use plan to replace the previous one. To hear the environmental groups tell it, the forest is going to be razed to the ground and those parts of the forest with historical interest will be raped for the benefit of a few logging companies.

      Guess what…it just doesn’t happen that way. Acreage is set aside for logging, with the typical amount of logging being 10% of what is set aside. On occasion, some particular areas are brought to the government’s attention for preservation, and the government rightly goes along with it.

      One group even claimed they had a number of named businesses on board supporting their position. That turned out to be a total fabrication.

      I think what this has to do with the Adirondacks, is that groups will put things in such a compelling way as to also limit debate…in other words, if you go along with our view, no debate is needed, because our view is the “correct” one.

      • John Warren John Warren says:

        The misleading information is presenting 1.4 million acres out of 2.4 billion as a lot.

        • Paul says:

          John, where does this number come from? Don’t you mean billion if you are referring to all the land in the US? There is only about 37 billion acres of land on the planet?

        • Bruce says:

          John,

          Your point escapes me, no misleading information about 1.4 million acres of National Forest in North Carolina, it is simply a fact. The point I was making was about tactics used by groups to sway public opinion towards their side of the leger.

  7. Tim-Brunswick says:

    “Paul” may not be an “Originalist”, but at least he’s courageous enough to speak out in this forum, which typically leans in only one direction, depending of course in what direction frequent flyers such as Dave Gibson are leaning…… Heaven forbid anyone should disagree with Dave Gibson (OMG!!) or others who typically rouse the “Wilderness Only” folks.

    Face it……Boreas Ponds hasn’t been a “wilderness” for over a 100 years and as far as being overly concerned about the critters that inhabit these areas being hurt, for crying out loud look at the State of Maine and their Moose population, thriving amidst continuing logging operations, camps, ATV and Snowmobile trails galore…..Really!

    • Ryan Finnigan says:

      I’d call you out by your full name (like you did to Mr. Gibson) for being ignorant, but you don’t give your full name.

      Get it straight: Maine’s moose population is in decline. Get your facts right before you call out other people in a public forum – lest you embarrass yourself, yet again.

      • Paul says:

        Ryan, Sure the moose in Maine are currently taking a hit form winter ticks but Tim’s point is that historically (and still today) Maine has the highest moose population (60-70K animals) in the lower 48. None of the activity that Tim mentions is the cause of the tick problem.

        • Ryan Finnigan says:

          No. To make his point, Tim said Maine’s moose population is “thriving”, but it is, in fact, in decline.

          Also, you cannot prove that fossil fuel based recreation and road development and unsustainable logging are not somehow tied into Maine’s declining moose population which is brought about by large increases in the tick population.

          • Paul says:

            Sure you can claim any correlation w/o showing any causation. I can’t prove that big foot doesn’t exist either. Those things Tim mentions have been going on at many times when the moose population there has been going up too so maybe they are linked but probably not.

            • Ryan Finnigan says:

              The state of Maine’s moose population is in decline. Tim said their population is “thriving” to illustrate his point and he was wrong, so his whole point is worthless. End of story.

    • Boreas says:

      One should also consider another check on moose populations – whitetail deer. Both carry similar parasites and diseases, such as brainworm and even ticks. Anything that enhances whitetail populations, such as logging or fire opening up browse areas, ticks, brainworm, and other shared parasites and diseases will increase, usually to the detriment of moose populations. Without a healthy predator population, logged areas will typically favor whitetail over moose until the forest matures.

  8. Deb Evans says:

    Good review of the issue!
    Welcome to the despot world of DEC.
    They just want to get paper off their desk and make hamlets and governor happy. Investigate twsp 40!

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