Tuesday, January 31, 2017

Lawyers Argue In Court Over Adirondack Rail-Trail Proposal

Railroad crossing over Bog River. Photo by Phil BrownAfter months of delay, lawyers for the state and the Adirondack Railway Preservation Society squared off in court Monday over the future of a 34-mile stretch of tracks between Lake Placid and Tupper Lake.

At the end of the 45-minute hearing in Malone, acting State Supreme Court Justice Robert G. Main Jr. reserved decision on whether to block the state from tearing up the tracks and converting the corridor into a multi-use recreational trail.

The judge also asked the state to provide more information on the ownership of the railroad corridor.

When state officials drafted the proposal to remove the tracks, they said the state owned the whole corridor outright. However, the state later learned that it did not in fact own a parcel in Saranac Lake and one in Lake Placid. As a result, the hearing, originally scheduled for last summer, was delayed several times.

The parcel in Saranac Lake is jointly owned by North Country Community College, Franklin County, and Essex County. The parcel in Lake Placid, at the end of the line, is owned by the Lake Placid Historical Society.

Assistant State Attorney General Marie Chery-Seckhobo told Justice Main the landowners have agreed to let the state use their pieces of the corridor for the recreational trail and signed letters of intent to that effect.

Nevertheless, Main expressed concern that the state’s existing right of way on the parcels may not allow for uses other than a railroad. If the right of way does not allow a recreational trail, he asked, “isn’t the proposal doomed to failure?”

When the hearing ended, the judge asked lawyers from both sides to discuss the issue further in his chambers.

“We just need to provide more information regarding the state ownership,” Chery-Seckhobo said after emerging from the closed-door meeting.

Other state attorneys who attended the court hearing said they do not see the ownership issue as a major obstacle.

The right-of-way question did not come up until the end of the hearing. Earlier, Chery-Seckhobo and Jonathan Fellows, representing the railway society, summarized their arguments in the case, reiterating points from legal papers filed with the court.

The railway society is suing the Adirondack Park Agency, the state Department of Environmental Conservation, and the state Department of Transportation over the plan to remove the tracks.

After numerous public meetings, DEC and DOT developed a controversial plan to divide the 120-mile corridor into a rail segment and a trail segment. Last year, the APA board ruled that the plan was authorized under the Adirondack Park State Land Master Plan.

Under the agencies’ plan, the state would rehabilitate 45 miles of largely unused tracks between Big Moose and Tupper Lake and remove the 34 miles of tracks east of Tupper. This would enable the railway society to run tourist trains from Utica to Tupper Lake, but it would be forced to shut down a seasonal train that runs between Saranac Lake and Lake Placid.

In its lawsuit, the railway society contends that removing the tracks would violate the APA Act, the State Land Master Plan, and the state’s Historic Preservation Law. The suit makes three main legal arguments:

Travel Corridor. The rail corridor is designated as a Travel Corridor in the State Land Master Plan. The APA contends it will remain a Travel Corridor even if the tracks are removed, but Fellows argued that a Travel Corridor is meant for transportation, not recreation. “It’s about moving people from place to place,” he told Justice Main. “It’s not about enhancing recreational opportunities.”

Chery-Seckhobo countered that the definition of the Travel Corridor says nothing about tracks. Rather, it refers only to the “Remsen to Lake Placid railroad right-of-way” and state lands “immediately adjacent” to the corridor. In any event, she said the recreational trail will enable snowmobilers, bicyclists, and others to travel from one part of the Park to another. The state also says that the corridor will remain under the jurisdiction of DOT and that tracks could be restored if needed.

Rationale for decision. Fellows argued that the agencies relied on a biased study in concluding that dividing the corridor into two would provide a greater economic benefit than restoring rail service throughout the entire corridor. The study was done by Camoin Associates, which had prepared a similar study for Adirondack Recreational Trail Advocates. Chery-Seckhobo, however, said the agencies reviewed other studies as well. In court papers, the state says it also interviewed experts and took into account 2,000 public comments.

Historic preservation. The corridor – including the tracks and buildings – is on both the state and national Register of Historic Places. The state concedes that removing tracks will have an adverse impact on the historic resources, but it says this can be mitigated by rehabilitating railroad buildings, erecting educational signs, and other actions. Fellows told the judge that the state should have prepared a mitigation plan before approving the track removal. Chery-Seckhobo then produced a document that she received last week and that outlines mitigation measures. After looking at it, Fellows remained unimpressed. “It’s not a mitigation plan,” he said. “They didn’t have a mitigation plan in place.”

The state hopes to begin removing the tracks this year.

Photo by Phil Brown: the railroad crossing over the Bog River south of Tupper Lake, a part of the rail corridor that the state plans to rehabilitate.


Phil Brown

Since 1999, Phil Brown has been Editor of the nonprofit Adirondack Explorer, the regional bimonthly with a focus on outdoor recreation and environmental issues, the same topics he writes about here at Adirondack Almanack.

Phil is also an energetic outdoorsman whose job and personal interests often find him hiking, canoeing, rock climbing, trail running, and backcountry skiing.

He is the author of Adirondack Paddling: 60 Great Flatwater Adventures, which he co-published with the Adirondack Mountain Club, and the editor of Bob Marshall in the Adirondacks, an anthology of Marshall’s writings.

Visit Lost Pond Press for more information.


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79 Responses

  1. Curt Austin says:

    The judge needs more information about title issues? Railroad property law is arcane even to an attorney specializing in real estate; railroad corridors often have complex and uncertain origins, and are subject to a specialized body of law and regulations. I hope the state is consulting with a lawyer who knows railroads, and in particular the applicability of the Rail Banking Statute of 1982, which I think “conquers all” in this case.

  2. Larry Roth says:

    Up until now, the decision has been in the hands of parties with their own interests, their own agenda taking priority. The documents they’ve crafted to support their case read more like marketing materials than objective justifications.

    The economic case doesn’t hold up – and decades of failure by the state to carry out its part of the original unit management plan is suggestive that the state has not been entirely aboveboard in all this. The blatant disregard for the historic nature of the line, the incorporation of arguments taken practically word for word from trail advocates, the way the hearings were set up to give them a strategic advantage… It’s not unreasonable to believe the state may have been less than an honest broker in all this.

    • Bruce says:

      Larry,

      Show me how you arrived at the conclusion, “the economic case doesn’t hold up.” Has any disinterested party produced documentation proving that?

      I believe the true economics can’t possibly be known until a decision is made and implemented.

      • Larry Roth says:

        The positive impact of the Rail Explorers was completely disregarded in the state’s analysis, dismissed as merely ‘proof’ people wanted to ride bicycles. The number of visitors who came to Saranac Lake specifically to ride the rail bikes, the jobs that were created – all of that was ignored.

        You’ll also find no consideration given to the impact of having a direct connection between Lake Placid – a prime travel destination – and Amtrak at Utica. That’s just a couple of examples.

        You can also look at two trends – the continued growth in Adirondack Scenic Railroad ridership over the long term, and the continuing decline in snowmobile registrations. Both of those were glossed over.

        We don’t have to rip up the tracks to prove it would be a mistake, which is effectively what you are suggesting we do.

    • Boreas says:

      Larry,

      I would say the “decades of failure by the state to carry out its part of the original unit management plan” coupled with the fact that they want to remove the final 34 miles of track illustrates the state’s wishes quite well. Seems pretty above board to me – they want to implement a change in usage.

    • Curt Austin says:

      The economic case doesn’t hold up? All the businesses that endorsed the trail idea are wrong, were coerced, or stupidly fell for propaganda? True, it is a matter of predicting the future; certainty is not available. But these businesses are in the best position – from both knowledge and motivation – to make the prediction. You don’t need to weigh the opinions from the two sides, or their consultants.

      But let’s not get distracted. Economic impact is not the most important thing. The raison d’être of this area is the outdoor experience, and it’s good for people, especially residents.

      • Larry Roth says:

        You are apparently unaware of the number of businesses that have recently endorsed keeping the rails, in large part because of the positive impact by the Rail Explorers. Your implied claim that all businesses are in agreement on this or are the best judges is sadly mistaken.

        As for the outdoor experience – yes that’s a good thing, There’s no shortage of ways to get it in the region, but only one railroad. You’d deny the outdoors to those whose needs are best served by rail? Seniors? Families with young children? The disabled? Those who can’t or don’t want to have to drive everywhere?

        • Curt Austin says:

          These businesses might feel that a third way is best: remove the train so the rail bikes were not so operationally restricted. They could run in LP. Perhaps people could bring their own, or rent one. Go west on odd hours, east on even hours. I’m not being serious, but you know where I’m going: the rails would soon become seen as an impediment.

          From another direction, there is a Chamber of Commerce effect: no business will ever speak out against another member. (Note: I’ve been a member and director.)

      • James Falcsik says:

        No need to predict the future concerning rail trails Curt. The 30 year old Great Allegheny Passage has plenty of small communities with empty storefronts to show how the claimed economic boom will not happen. Your reason to support destroying the existing railroad: “The raison d’être of this area is the outdoor experience, and it’s good for people, especially residents.” How socialist of you! Because you deem it good for the community, it is OK to destroy a precious transportation asset.

        The Railroad Act of 1982 was designed to give relief to burdened railroad companies that suffered from the collapse of the industrial customer base while looking to preserve the right-of-ways for future railroad use. It was not intended to become another left-wing black hole for public funding, sucking taxpayer dollars out of bridge, highway and transportation funds. How truly hypocritical the trail supporters are who claim taxpayer funds are wasted on preserving an active railroad, when at the end of the day the only product of the trail builder is a dirt path of far less value, completely at the expense of the overburdened taxpayer! It performs no work, has no productive output, and requires maintenance constantly at taxpayer expense.

        The Rail Trail Conservancy has become another mega non-profit organization supported almost exclusively by government grants where elite, highly paid managers instruct and enable land grabbing activists in the name of recreation. The claims of economic growth from a trail economy are false. The RTC’s constant production of slanted economic impact statements to mislead communities and outright fabrication of facts to support a predestined outcome is nothing but propaganda. It is all designed to create a funding stream for even more impact studies to keep the money flowing. When the new administration gets around to draining the Washington Swamp, hosing out the offices of the RTC would be a welcome check mark on the long list.

  3. Boreas says:

    The article doesn’t state why there were “months of delay”. Seems to me the state should have used that time to get their ducks in a row. Other than getting approval from the parties in question, it doesn’t seem like any ROW/title research was done. I get the idea they plan to start removal of the tracks regardless.

    • David P. Lubic says:

      This does indeed seem to be the case.

      In fact, I wonder why the judge even gave what amounts to ANOTHER continuance on this. . .after granting what, four previous ones? Or was it five?

      I’ve had experience as a state employee who had to take people to court for tax matters. A judge or court would routinely grant one continuance, but a second continuance was granted with annoyance. I don’t think I ever got a third.

  4. James Marco says:

    Railroads, ties especially, require maintenance. After a long period of time, they will need replacement, at least some of them. This will surely NOT be done in the current state budget climate. They will close it. So, removal is the obvious choice for economic reasons. There may come a time when we need the corridor for transport. Until such time, a bike&hike trail can be created with minimal fuss. Old beds make good trails.

    • Larry Roth says:

      You seem oblivious to the fact that the state already has trouble maintaining its already existing network of trails. Keeping them maintained and it good shape is neither trivial or cheap. You also forget that the ticket fees charged to use the rails, either by trains or rail bikes, provide funding that goes right back into maintaining the corridor for everyone. You’re ready to throw that money away – especially when you admit the state budget climate is not good?

      Remarkable.

    • David P. Lubic says:

      Larry Roth makes the comment that the state has failed to adequately maintain trails.
      |
      Truth is, the cost of maintaining a railroad, a trail, or a secondary road is pretty similar in any given location. The reason is that most of your money and labor goes to substructure. . .keeping weeds and undergrowth away, keeping ditches clear so they can drain properly, maintaining bridges, maintaining cuts, and in your case, dealing with beavers who don’t like free running water. Those things won’t go away because the track does.

      The maintenance of the superstructure–track on a railroad, the paved surface of the trail (which could include gravel or something similar) is relatively minor by comparison.

  5. Tom Wemett says:

    Where is there discussion of rails AND trails? Seems to me that approaching the matter as creating a combination of rail and trail would bring people together instead of making them enemies. Yes, there are challenges to such a combination but I’m sure that if everyone works together solutions can be found and sanity can be restored to this situation. The state wants to bring more economic tourism to the area. What better way then to keep an ongoing successful scenic train with other recreational uses. I’m assuming what binds us altogether is a desire for a scenic experience as well as economic benefit for the region.

    • Curt Austin says:

      Because the idea is unworkable. It is often advanced cynically as a poison pill by those who know it is unworkable. Or by folks who don’t notice culverts and other engineering and construction details, and don’t have a sense for the expense involved. Some find the controversy disturbing and innocently advance the idea as a “let’s just all get along” solution, inadvertently adding to the controversy. It’s even been advanced by people who don’t understand the nature of a bike trail, or pretend not to. I gently ask: which category do you fall into?

      • Tom Wemett says:

        Curt, I believe in both a multi-use trail and a scenic railroad. Both add to the tourism of the area. As to your statement that it is “unworkable”, you mention obstacles that require engineering and expense. It isn’t that the idea of a rail AND trail solution is unworkable, it is that it requires additional thinking, engineering and expense. When looking at projects everything should be on the table for consideration. Seems like the rail AND trail option has been simply ignored due to it’s added complexity. I don’t consider it a “let’s just all get along” strategy. I consider it an option that would benefit the entire community and not one faction over another. A lot of communities nationwide are now adding rail back to their communities. Once the rails are torn up probably the option of returning rail service to the region will be a thing of the past. I understand there are successful rail AND trail operations around the country. I’m just saying that the option should have and should be explored further and not just swept aside.

      • Larry Roth says:

        Actually Mr. Austin, while the trail advocates don’t want to admit it, one of the national trail groups they cite for support happens to have publications that promote rails AND trails. They note it is safe, practical, and makes both work better. If you look elsewhere around the world, trails are specifically designed to work with all forms of transportation – it’s not an either or choice.

        Nobody in their right minds tears up a working railroad for some illusory gains – unless they have a different agenda and are just using the trails as a Trojan Horse.

        • Curt Austin says:

          I once directly asked the regional director of the Rails to Trails Conservancy: “Are there any rail/trail combinations anywhere in the east with terrain like ours?” No.

          In fact, I’ve checked the rail/trail combinations that railfans commonly reference: all are former double track corridors, which makes it relatively easy, depending on how trains are run on the active track. Someone knowledgable of railroads would know this, Mr. Roth, putting you in my first category.

          Mr. Wemett, I must object to your opening with the word “believe”. “Hope” might have once been appropriate to express this sentiment, but there has been time to assess the engineering, regulatory and economics of the situation. It has not been ignored, but it has been dismissed both conceptually and also by experience with budgets that proved inadequate.

          I believe there have been two detailed proposals to deal with the problem. One required an elaborate and expensive set of timber structures; perhaps all these modern CGI movies have dulled our senses about the reality of such things. The other solution required departures from the corridor into rough terrain, blithely ignoring the nature of a bike trail. And, of course, two actual attempts failed, surprised by the difficulty.

          • David P. Lubic says:

            False statement.

            There are multiple examples of trails and single track railroads, some in terrain more challenging than that of the Adirondacks.

            San Clemente, Ca.:

            http://railswithtrails.com/tag/rails-with-trails%20bike%20beach%20train%20rail

            http://californiathroughmylens.com/san-clemente-beach-trail

            Tennessee Central, Tenn.–possibly the closest example in terms of similar terrain, conditions, and length:

            http://www.railstotrails.org/trailblog/2013/august/01/tennessee-central-heritage-rail-trail/

            https://www.traillink.com/trail/tennessee-central-heritage-rail-trail/

            This video is particularly interesting in that it starts out on rail property, but much of it is obviously NOT a railroad grade (too curvy and steep), and the railroad reappears to the left at the end of the clip.

            https://www.youtube.com/watch?v=SM8Mr_3XW-o

            Santa Cruz, Ca.

            http://santacruztrail.org/railtrail/

            https://sccrtc.org/projects/multi-modal/monterey-bay-sanctuary-scenic-trail/city-of-santa-cruz-coastal-rail-trail-project/

            Animas River Trail, Durango, Co.

            http://www.walkridecolorado.com/by-location/durango-colorado

            Multiple examples, and as stated earlier, some in even more challenging country than that of New York.

            With these and other examples available, one thing IS certain–someone is not telling the truth.

            Either the Rails to Trails fellow lied to Mr. Austin, or Mr. Austin is lying now.

            I won’t judge yet–I will wait to see what Mr. Austin says in the future.

            • Paul says:

              None of those places has an APA. Forget it.

              • David P. Lubic says:

                You comment suggests the real problems are not technical or even financial, but institutional.

                Institutions can be tougher than the other two combined.

                Considering the possibility, if not probability, of the right of way being lost due to the easement issue, and to the antipathy of the APA to powered vehicles, it may be wise to keep the railroad.

              • Bruce says:

                Paul,

                And I might add, few if any of these places have state mandated constitutional Wilderness protection for significant parcels which have a ROW on them. That represents a significant problem for a Rail AND Trail system in the AP, at least along this ROW.

            • Curt Austin says:

              Harsh words! They can wear down calmer voices of reason. I do have other things to do, so I’ll reply and you can have the last words.

              You reference only one short trail in the east, which did not exist at the time I spoke with Carl Knoch. Is this the only one you know of? It clearly does not have anything close to the terrain we have here. Kansas-flat except a short hilly section that is still quite tame in comparison to what we have here.

              It’s also true that the last time I looked into links of other rails with trails provided by a rail fan, they were all double track corridors.

              In any case, I’m not citing a scientific principle here, where just one contrary observation proves it untrue. It sure seems to me that rail advocates struggle to find significant, relevant examples. But let’s not get distracted: the question is whether a rail with trail is feasible here. Some claim it is, and act as if some nefarious conspiracy is afoot. That’s easy to do. But coming up with a workable and affordable plan is not. You don’t have one.

              • David P. Lubic says:

                Thank you for the clarification, and maybe an apology for being harsh, but having said that, there still seems research was a little lacking. . .oh well, there are more important things in the world.

                Tennessee Central is Kansas flat? Doesn’t look like that to me.

                It’s also over 20 miles long. . .not what I would call super short, either.

                The trail and railroad at Santa Cruz is also fairly long, parts of it are on a cliff, and it has several bridges much larger and higher than anything I know about on the Adirondack. . .it may well be more challenging.

                The same can be said at San Clemente, though that one is on the short side.

                There is at least one other one in the east (short), and another whole system around a major city in the midwest which I once found material for, but you know the internet–now you see it, now you don’t! Bah!

                There may be the thought that the midwestern city wouldn’t be too challenging because things are typically flatter there, but don’t let that fool you–some of that land rolls more than you think, and there can still be challenges poised by streams, either running alongside the railroad and trail or crossing the same.

                One thing to keep in mind, the technical problems may not be as great as the institutional ones. . .which means the easement issue is really the elephant in the room.

                There is reason to believe the four parcels mentioned by the State of New York are not the only ones. If that’s so, then there is a whole can of worms to be opened.

                Some here have alluded to the power of the APA, which is alleged to have a reputation for pushing people around. If anything regarding THAT is true, then the easement issue becomes even more important than before.

                Why? You then have the prospect that the APA or the DEC may take advantage of a ripped up railroad to permanently close the right of way to everybody and everything.

                It may not be too far-fetched. Some environmentalists in the area seem to value wildlife over human life (given how too many of us behave, not entirely without justification!). Such an opportunity might be too much to resist.

                In that case, keeping the railroad may well be some pretty good insurance!

  6. Ben says:

    Working railroad my ass. The part to be torn up sits unused by any railroad operator for the better part of the year. Rails & trails in the area were looked at by the STATE & THE STATE decided it wouldn’t work. In my opinion, the rail folks can keep pissing off the state & the STATE may come back & bite you. You still need the state to give you a operating lease every year to run that pathetic little scenic operation, what happens if the state says NO more lease! They don’t have to renew your lease & no court can make them!

  7. Jim S. says:

    The only efficient use for a train in this era is to move massive amounts of freight. There is no need for that kind of service in the sparsely populated Adirondacks. Rip them out and make the corridor useful. The nostalgia people can ride the train between Utica and Tupper.

    • David P. Lubic says:

      Oh, I wouldn’t say that.

      What you describe is the MOST efficient use–and a lot of that has to do with economy of scale–but that doesn’t mean a railroad is inefficient in areas of more modest traffic.

      I’ve known of railroads that managed to at least cover operating costs on only three train movements per week. Now this doesn’t mean they were profitable overall–trackwork was badly neglected, and in some cases I wondered how the trains stayed on at all–but they did manage to survive, at least for a while, and in the case of a railroad just a couple of blocks from me, got a new management that was more aggressive about getting traffic, and now it runs up to eight trains per day.

      That brings to mind something else. . .a railroad is considered only valuable if it is “profitable,” but to do that it not only has to pay operating costs, it has to pay all of its right of way costs, and property taxes on the right of way, too. That same high standard is not required of the road system, which costs a good deal more than what you pay for it in fuel taxes and tolls. In fact, the subsidy the road system gets as a whole in the US is on the order of 60 cents per gallon, and that’s based on cash flow accounting–full cost accounting, which would include depreciation and deferred maintenance, would look even worse.

      That subsidy comes from income, sales, and property taxes.

      The trail would have about the same maintenance costs of a road or the railroad itself–remember, most of what you spend on these things is for the substructure (the need for clearing ditches, repairing bridges, and dealing with washouts from beavers won’t go way with the track)–and you still don’t have the direct revenue a railroad brings.

      So why is there a double standard here? Why do you not demand the motorist pay his full cost for the road system

      So why the double standard?

  8. Ben says:

    I’m all for letting the scenic railroad continue to operate between Utica & Big Moose, but it is irrelevant to continue north of there. Plus the state needs to jack up their lease cost to the ASR; they need to find a rail operator to run the line and the scenic railroad needs to become self sufficient. I’ll give the ASR 5 more years & they will be gone too. All you have to do is look at what Iowa Pacific has on the other side of the Adirondacks. They have a scenic rail line much better suited to get the NYC crowd & they still are loosing over $1M a year. And to top it off, they CANCELLED their winter trains to North Creek (aka Gore Mountain) because of a lack of use.
    It is & will continue to be cheaper for people to drive their fuel efficient cars into the ADK, rather than wait on slow, outdated scenic trains!

    • terry says:

      The NYC crowd does not need to travel here for a train ride.

      • Scott says:

        Terry, yours is exactly the best point. Come to the Adirondacks for the nature and undeveloped natural outdoors beauty. Don’t come to the Adirondacks to ride a train. And I don’t want a recreation trail next to the train tracks. I don’t want to see or hear trains anywhere in the Adirondack back country. I don’t care about the economics. Let’s just have peaceful non motorized recreation in the adirondack backcountry.

  9. Paul says:

    If the easement only allows for a railroad the trail is dead.

    • Phil Brown Phil Brown says:

      Why is that? Easements can be rewritten, can’t they?

      • David P. Lubic says:

        The problem is that a NEW easement requires a NEW agreement, with a NEW price. That’s going to be based on the current market.

        There are cases where easement costs have gone through the roof. There is at least one case where the costs ran to $5 million per mile–and the trail hasn’t been built yet.

        For comparison, to convert a railroad to a paved trail runs about $1 million per mile.

        You’re going to require some very cooperative property owners to keep the easement costs in line.

        Now, ask yourself, how much do you think your property owners like money?

      • Paul says:

        It depends. Who gave the state the easement? If an easement was conveyed to these owners that restricted it to only RR use than these owners can’t change that. They only got the property right to use it for a RR. They have to abide by that. You would have to go back and find where it started and ask them if they would convey a new easement that would allow other uses. Why would they do that?

      • Preasult (sp) vs. Vermont DOT 1982, the Supreme court upheld that Rights-of-way are for the public good and that the “Railroad” definition was because that was the language of the time. The spirit of the law is for the public good.

        • Duane says:

          Dear Mr. Thompson, Your citing of this legal case is in error as that decision was reversed in 1996 finding for the Plaintiffs-Appellants, the Presault’s in the United States Court of Appeals,Federal Circuit.

          J. Paul PRESEAULT and Patricia Preseault, Individually and as Partners of 985 Associates, Ltd., a Vermont Limited Partnership, and 985 Associates, Ltd., Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee, The State of Vermont, Defendant/Cross-Appellant.
          Nos. 93-5067, 93-5068.
          Decided: November 05, 1996

          http://caselaw.findlaw.com/us-federal-circuit/1368192.html

        • Keith Gorgas says:

          Scott, honest question that requires an honest answer: Did you knowingly falsely use the case of Preseault, or was is sincere ignorance? You give the impression that case proves your point when in fact it does that exact opposite. It is a landmark ruling on the subject that upholds the underlying landowner’s right to just compensation if rails are removed and converted to a trail.
          https://en.wikipedia.org/wiki/Preseault_v._United_States
          And in 2014, in Brant Trust vs US, the Supreme Court again, by and 8:1 majority upheld this principle. The one dissenter, Sotomayor, did so, not based on the law, but as she said, because it would add such a huge cost to trail conversions. Again I ask: with this deliberate falsehood, or just ignorance on your part?

          • Duane says:

            Thanks Keith for the Wikipedia synopsis of this bit of precedent-setting case law. I realize the link covering this decision is lengthy and in legalese so it is good to have your rebuttal in the normal vernacular. It seems that with all of the private property which the rail corridor is adjacent to or goes through the State of New York would have done their homework on the possibilities of restrictive agreements with easements which were created when the railroad was put through in the 1890’s. The land over which the Right-of-Way passes may very well revert to the original owners and if New York State contends that these rights were extinguished by the mere purchase of the Right-of-Way they may get themselves into some 5th Amendment taking of private land without just compensation difficulties.

            http://caselaw.findlaw.com/us-federal-circuit/1368192.html

            • Tony Goodwin Tony Goodwin says:

              The legal cases cited above only apply to western states where the railroads received federal land grants for their right-of-way.

              Because the Adirondack Rail Corridor is owned by NYS, the federal railbanking law does not apply to the letter of the law. The proposed conversion to a trail does comply with the “spirit” of the law in that the continuous right-of-way will be preserved for any future rail use – however far in the future that might be.

              • James Falcsik says:

                Not correct; situations of reversionary rights andeasments exist in every state: https://fee.org/articles/the-dark-secrets-of-rail-trails/

              • Duane says:

                You are wrong in your statement “The legal cases cited above only apply to western states where the railroads received federal land grants for their right-of-way.” as the court cases cited above occurred just across Lake Champlain in Vermont!

                J. Paul PRESEAULT and Patricia Preseault, Individually and as Partners of 985 Associates, Ltd., a Vermont Limited Partnership, and 985 Associates, Ltd., Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee, The State of Vermont, Defendant/Cross-Appellant.
                Nos. 93-5067, 93-5068.
                Decided: November 05, 1996

                http://caselaw.findlaw.com/us-federal-circuit/1368192.html

                • Curt Austin says:

                  The referenced case is concerned with the one unsettled issue (last I knew) about the Rail Banking Act – whether underlying property owners are entitled to compensation under the “Takings” clause of the Constitution. Such cases presume the “taking” has occurred; that is, the corridor has become a trail. It’s a matter between the property owner and the federal government; the trail developer is not involved.

                  • James Falcsik says:

                    I agree Curt; the trail developer has no exposure to the cost. The taxpayer has all the exposure, and this may also be true for the Remsen-Lake Placid rail corridor.

                    Perhaps this should be corrected. The trail developer should be required to put cash up front to cover the potential expense of buying out the property use in the case of unsettled easements. Perhaps also the trail developer should have to put up cash or at least a type of performance bond against false claims of economic development. Why should the taxpayer have all the risk? At least charge a per capita tax to the citizens of the communities where proposed trails are forecast to create so much economic growth. Since it has been proven beyond question that most users of recreational trails are local users, it would not be difficult at all to charge a user fee to locals, or a registration fee to cyclists.

                    At the moment, the bike, sled and trail advocates can make any outlandish claim they care to without any concern or risk when it comes to the economic performance of a proposed trail.

                    When the promise of economic growth is the main selling point to convince community leaders to sink public funds into trail construction and maintenance, activist groups like ARTA and your own Upper Hudson trail organization should be required to put up teh money before public funds are disbursed.

    • Keith Gorgas says:

      Paul, I don’t believe what you said is correct. It’s my understanding that after several evasive answers, the State’s attorney finally responded to Judge Main’s question regarding the underlying land in the right of way and admitted that it will return to the underlying land owners if the rails are torn up.. As far as I know, even though that’s been omitted from both this report and young Justin Levine’s propaganda in the Enterprise, that is on the record now. It turns out that the DEC was deliberately attempting to deceive the public on this issue. Now, if I am correct about that.there are two ways for the trail to still be built. One would be for the State to file condemnation proceedings against each underlying land owner, and settle for just compensation, there by acquiring in fee ownership of the land. That would be very costly, and probably take quite a few years. In Lake Clear, the homeowner may present enough of an argument to force the trail to the other side of the Lake, as proposed years ago by TRAC and Next Stop Tupper Lake. The other way to proceed with the trail and get it done far less costly and time consuming would be to revert to the 1996 UMP, as devised by 53 state and local people and restore the rails with recreational trails within the 100ft right of way, where possible (which is almost the entire length) Remember that the “Travel Corridor” not only includes the RR ROW but land that can be seen from it. That clause significantly broadens the room for a recreational trail. There are trouble spots, no doubt about that, but with a spirit of cooperation, that option could be achieved in relatively short order.

      • Curt Austin says:

        If the underlying title holders agree to an easement for a trail, as the state suggests, that’s it. If not, it will lead to gaps in the trail. This is not uncommon; eventually, they get worked out.

        Railroad easements indeed disappear upon abandonment, but in this context, “abandonment” means when the rails are removed, not mere declaration or disuse. That is, the state should take care about removing the rails in disputed territory.

        But the Rail Banking Act of 1982 specifically allows interim use as a trail, and has been invoked for hundreds of rail trails. It is well-settled law when under federal jurisdiction – easily and quickly adjudicated according to an STB procedure – but for the rare railroad that is not under federal jurisdiction (here, I’m told), there may be a tortured legal path to follow. I’ve been assured, however, that it does apply.

  10. Ben says:

    you keep talking about cooperation, but where do the rails folks want to cooperate? They just want it all, year round use, even if NO ONE WANTS A DAM RAILROAD ANYMORE! Why not go talk to the folks at Iowa Pacific, or the people over in North Creek & see how much they just love (NOT!) their little scenic railroad right now!

    • David P. Lubic says:

      NO ONE WANTS A DAM RAILROAD ANYMORE

      Oh? Ask the people who rode the trains. Ask the people, among them your neighbors and fellow citizens who support this railroad, what they think.

      Or do you think your fellow citizens who are rail supporters are aliens from another planet?

      • Ben says:

        Could care less what they think. The railroad needs to go!

        • Chip Ordway says:

          Perfect answer. You’re a fine example to your cause. Eloquent to the end.

          Yes. That was sarcasm.

          • Ben says:

            ouch, my feelings are hurt. NOT! I could care less which way this goes. Both sides are anal about the entire issue. The state owns the corridor & they can do with it what-ever they see fit. If the railroad folks don’t like that I really could care less. If the ASR was to stop running, I’m not going to loose any sleep over it. That would make any decision easier, but then again the way the ASR is run now, just give it a few years & it will be gone. At that point the trail folks can get a trail all the way down to Remsen!

            • David P. Lubic says:

              Eh, maybe the state DOESN’T own the corridor. . .take note of the various comments on easements above.

              There is a saying you should be careful what you wish for, because you may wind up getting it. In this case, you should be careful of what you wish for, because you may wind up with nothing at all!

  11. Tony Goodwin Tony Goodwin says:

    Ray Hessinger of NYSDOT has stated that the Corridor was taken in fee by eminent domain in 1974. The State therefore owns the corridor free and clear except for the two small parcels that were somehow overlooked in the large and complex transaction. Neither owner has put up any objection to the Corridor becoming a trail, so it is hard to see where there is a problem – unless one wants to make it a problem.

    • David P. Lubic says:

      There is reason to believe there are a lot more easements than the state is admitting to. It wouldn’t surprise me if those old easements and deeds are a big part of the 2,000 plus pages of documents the railroad’s lawyers are using.

      • Boreas says:

        David,

        “There is reason to believe there are a lot more easements than the state is admitting to.”

        You have stated this several times, but since last summer/fall I have yet to hear of any new ones brought to light. Wouldn’t the RR team have come up with more of these easements by now if this is the case? Just wondering.

    • Keith Gorgas says:

      Tony, with all due respect, because I know that you research stuff and don’t just recite ARTA talking points, I have written the DEC 3 times requesting dates and locations of Eminent Domain condemnation proceedings. I have gotten no response, but they did take the claim down off their website. I believe, from what I’ve gleaned, that the State’s lawyer was asked the same question at the hearing, and in the end admitted that had never happened. I’ll admit I may have my info wrong, and if so will stand corrected.

    • Paul says:

      Was the land deed restricted, all or in places, to a RR when the state got that deed via eminent domain? Or is the state free to do anything they want with it? if the state bought the land in 1974 why isn’t it required under article 14 to be added to the Forest Preserve, especially now if they remove the rails?

      • Keith Gorgas says:

        Many of the deed are restricted to rail transportation.

      • Curt Austin says:

        A railroad easement appears in a deed like this: “Subject to an easement for railroad purposes granted to …” The owners of the easement may only use it for a railroad – not for laying optic fiber cables (court rulings exist) and not for rail bikes either (guessing). It’s something the fee owner can enforce, or modify in negotiations with the easement owner. There is no third party involved.

        It’s not a “deed restriction”, such as a paragraph forbidding the construction of a tar-paper shack that anyone can attempt to enforce.

    • James Falcsik says:

      According to a New York Times article from 1974, the New York State legislature appears to have appropriated funds to purchase the railroad from Penn Central in bankruptcy court. Here is a quote directly from the article:

      “Governor Wilson announced on April 17 the state’s intention to acquire the freight‐carrying branch to prevent further ripping up of the tracks. Money for purchasing the branch and for other abandoned tracks was made available by the Legislature at the present session.

      An April 23 order by the Federal District Court handling Penn Central bankruptcy proceedings halted all further dismantling of the Adirondack line. Commissioner Schuler has begun negotiations to buy the line for the state.”

      http://www.nytimes.com/1974/05/05/archives/adirondack-branch-of-the-penn-central-found-recoverable.html?_r=0

      There was no mention of eminent domain proceedings in this article. Words such as “acquire”, “purchase”, and “buy” do not seem to indicate the line was taken by condemnation proceedings.

      • David P. Lubic says:

        If this is the case, then the railroad was purchased “as is,” and that includes the legal status of any easements. The fact that at least two easements have been found, even with cooperative owners, means any others are also still valid.

        The question is, how many are there? And where are they? They could well be in critical areas that would be hard to bypass.

  12. Ben says:

    Everyone on here whines pisses & moans about this issue. It’s up to the Court now to decide. One side will be happy with the decision & the other side won’t. Do I think a train will be running this year on the northern end of the line. Nope, & that’s including if the court rules against the state. I see the state having a very long memory & I doubt they will renew any lease. Even if the ASR wins, the end of the line will still be Big Moose because the state WILL never put the money into finishing the line. If they haven’t done if for the last 20-30 years, why would anyone think they will now.
    The ASR has no clue: they end at Big Moose now; they have the possibility of continuing on into Tupper Lake, or in the end, they’ll still be stopped in Big Moose.
    They may win in the court, but in the end they’ll end up loosing!
    And nothing says the stae has to continue to fund the upkeep of the line either, they could just choose to not continue paying for that! Make the ASR foot the bill!

  13. Tony Goodwin Tony Goodwin says:

    My information on the ownership came from DOT, not DEC. Perhaps there are other issues, but I did not research beyond looking at the deed records of the transfer of a few Essex County properties near Saranac Lake.

    So if the judge decides the railroad must stay, who, exactly, will ride the expanded rail service from Utica to Lake Placid? The mantra has been that the ASR is “connected” to the national Amtrak system. Unfortunately, the proposed operating timetable in the ASR’s business plan does not provide for any “cross-platform” transfers. Given the current Amtrak timetable. any rail travel to Lake Placid from beyond Utica requires an overnight stay in Utica. Can any rail supporter really say that there would be a sustainable number of passengers who would choose such a means to reach Lake Placid for a vacation?

    • Ben says:

      You also assume that just because the court sides with the railroad folks, that the state will put any money into rehabing the rails, other than what is already working. I seriously doubt the state will spend any more money on the railroad.

    • Keith Gorgas says:

      Tony, certainly legitimate questions worth examining. First of all, I don’t know that the judge can decide that the rails must stay (perhaps I’m misinformed) I think the scope of his decision is limited to the legality of Option 7. The State could eventually condemn and purchase all the underlying land, and perhaps some trail only advocates might donate their land or grant a trail easement. I think he could rule that without the rails in place the ROW doesn’t exist. But two answer your timetable question, at least in part, railroad board members have told me that they have a schedule worked out that would make it from NYC to Saranac Lake in less time than it takes to come by Trailways bus. Certainly much more appealing ride than bus for many people. As I’m sure you know, AMTRAK had its best year last year, breaking the previous year’s records, and is 94% self sustaining for operating expenses. Rail travel is at it’s peak since WW2 and shows no sign of slowing up. Who would ride? Tourists from Europe, Asia, etc, who are used to traveling by trains. Millennials, who by all studies show a marked preference towards intermodal mass transit. People coming from Utica, Syracuse, Rochester, Cleveland, Chicago, and points west. America By Rail is one of the largest travel and tour companies in America, and I have a letter from their Pres. stating that they would feature this trip. This past year, of the 21,873 people who rode Rail Explorers, the greatest amount come from the Utica to Rochester region. As the tour bus driver, I got the occasion to speak with many of them. I often asked the question: would you come here by train, if that was an option…overwhelming response was “yes”. Now, the judge may find that the State acted properly, and in that case this is all a mute point. But once the tracks are gone from Saranac Lake, they are gone forever, not just for ten years, or 100 years, but as long as the Forever Wild clause in the State Constitution remains.

    • Paul says:

      It would clearly need to be a tourist train. The success of the line at the southern end – where it goes somewhere interesting hints that it could be a success if it went to the interesting places – Lowes Lake etc.

      Also, if the judge decided that the RR must stay the other option would be for it to be a failure and then eventually be abandoned and revert to forest preserve. It could be viewed as a decision that it cannot become a trail.

      Tony, why, when the state bought the land in 1974, did it not become part of the forest preserve anyway?

  14. Keith Gorgas says:

    I would like to correct a statement I made earlier. I wrote that the State attorney acknowledged that the ROW would return to the underlying land owners if the rails were removed. I believe, after further checking with sources in attendance that is not correct. Instead, the response was that (to paraphrase) IF THE STATE DID NOT GO THROUGH THE CONDEMNATION PROCEEDINGS, the ROW would return to the underlying land owners. I apologize for not having more thoroughly researching this, because it is a significant difference. And I suppose that this is, in large part, a reason for the delay in a ruling….. to find out if there is a record of that action. I have personally written to the DEC 3 times asking for a record of such proceedings and gotten no response.

    • Curt Austin says:

      Forgive me for repeating myself, but title issues have come up hundreds of times during the development of rail trails. For this reason, and to preserve rail corridors for potential future use, something called the Rail Banking Act of 1982 was passed in Congress. It means you can remove the rails without reversion taking place. It is very much settled law. The Surface Transportation Board has a straightforward procedure. It is less straightforward when a line is not under specific federal jurisdiction, as here, but it can still be invoked.

      The state just has to emphasize the trail is an interim use and the corridor will remain available for future rail transportation if needed.

      I’m not making this up: I’ve consulted with Andrea Ferster, probably the foremost expert on Rail Banking.

      • Keith Gorgas says:

        Curt, I don’t think that you’re making that up, but if you carefully read the Camoin Ass. report, you will find their blueprint for ARTA is to remove the rails, store them temporarily as if they might be relaid, and wait a few years before formally abandoning the Railroad Right of Way. Formal legal abandonment is process, during which any RR in the country may claim the right of way within a 30 day process. The assumption is that once the train has stopped running for a few years and the trail firmly in use, no one will want to claim the ROW and rebuild from scratch. From what I’ve read, Dec plans to allow the vegetation to re grow in all except the 10 ft path.. In the 1996 UMP, developed over several years by 53 concerned parties, the APA made it clear that once gone, the rails would be gone for good, and that State Land will revert to the underlying classification. Snowmobilers have been warned about this for years, even by members of their own community.

        • Curt Austin says:

          I think you’re referring to federal abandonment procedures. I don’t know if NYS has anything like them. According to the rail banking attorney I spoke with, there is no set procedure for invoking rail banking for a corridor not under STB jurisdiction. There were a few cases in progress in NY at the time – examples to follow. Litigation might become bothersome, unlike at the federal level where lawsuits are quickly dismissed. She said the trail developer merely needed to document its willingness to return the corridor to rail service should the need arise.

          That documentation would be concurrent with the start of physical trail development, after the state decided to invoke rail banking. My sense is that preserving the corridor has been their intention all along, but I have not seen the phrase “according to the rail banking act of 1982”.

          The state ought to do this, not just for any current ownership issues, but for those that might arise in the future. Their attorneys should bone up on the subject (if they have not already) and proceed as necessary.

  15. Jim says:

    Take the money to fix and maintain the Adirondack trail system that is in very poor condition…espcially in the High Peak network. I understand the trail condition is so bad the state is considering close severl of the higj peaks to hikers…that is bad. Maitain the trails that already exist.

    • David P. Lubic says:

      Jim, your comment reminds me that the railroad is used as a trail in the winter. . .and that the railroad’s employees and volunteers do a lot of the work on the railroad that lets it be used as a trail.

      What I’m referring to is all that substructure work I’ve mentioned in other posts–taking care of tree falls, washouts, keeping ditches open, bridge maintenance, and the rest. Those fellows on the railroad are doing work that the state will have to pay for later. If the railroad goes, so do the railroaders, and the work they are doing.

      Who will do that work later? Is it a good idea to chase the railroad people away?

  16. george says:

    This whole argument is what it is! The court will decide weather or not the state violated state law when they created option 7. Which idea has better market value; continuing the railroad option or installing a trail is a moot point & should have no bearing on what the court decides. I’d prefer they stick a fork in the railroad & let a trail go all the way south to Remsen, but then again I am a realist; Let the railroad keep running between Utica & Big Moose & tear the rest of it up. The railroad only survives because the state keeps funneling money into it every year, and it goes to more than just keeping the rails in working order.

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