Monday, August 29, 2011

Dave Gibson: Stubborn Facts About Lows Lake

Facts are stubborn things. So are traditions, and patterns of use. These all lay at the heart of the recent Lows Lake court decision in Albany County Supreme Court which upheld a Wilderness classification for Lows Lake and the Bog River Flow.

Verplanck Colvin, the great Adirondack explorer and surveyor, came to what is now Lows Lake in the late 1890s, just before inventor A.A. Low dammed the Bog River in two places as part of extensive industrial enterprises that lasted less than 15 years. Colvin’s survey of 1898-1899 was his last (published by the Adirondack Research Center of the Association for the Protection of the Adirondacks in 1989).

Lows Lake was then a much smaller body of water named Mud Lake. Today’s Grass Pond, the islands, Bog River “flow” or Hitchens Pond did not exist, just the small(er) Mud Lake, and a much longer, narrower, faster, wilder Bog River. And vast bogs adjoining it. Colvin writes: “In this district enormous swamps, almost impassable in summer, extend along the northerly boundary of Totten and Crossfield’s Purchase for a great distance easterly from Mud Lake.” The dams caused those enormous swamps (bogs) to be lifted right off their moorings to erode, or float and anchor downstream.

At the Lows Upper Dam, rebuilt by our state DEC, there is so much dam, foundation and concrete that it forces us to think about Low, the short life and enormous scale of his “empire” of lumber, syrup, berry and other north country manufactured goods built upon cheap transportation, hydroelectricity and labor, all destined for New York City, all blackened to ruin by the great fires of 1908 and 1911. Low died a year later. The Wilderness classification that Judge Lynch upheld in his ruling this month should never eviscerate the lessons of one short century, nor lull today’s kayaker, transported by our highway system and petroleum economy, to see Lows and Hitchens, backed as they are by large dams, as originally wild. Pride, invention and Mud Lake goeth before the fiery fall of Low’s empire.

The court decision this past week also uncovers state ownership history turned murky and disputatious. The Forest Preserve Centennial of 1985 was a time to celebrate our wild, public land legacy. To mark the Centennial and to create a lengthy new public canoe route, Bog River Flow and Lows Lake were acquired by the DEC for the Forest Preserve from willing sellers including the Boy Scouts of America and Yorkshire Timber. Yet, the Scouts held onto their camp at the lake’s eastern margin. Meanwhile, a large-mouth bass fishery became a reality in Lows Lake, and enterprising float plane businesses began to take fisherman and others to and from the lake.

In 1986 and 1987, the State initiated and completed public hearings to determine how to classify this canoe route under the State Land Master Plan. Drawing from documents and the affidavit of former APA commissioner Peter Paine, Judge Lynch concluded this past week that the State did in fact classify the lake bottom as well as the shoreline along and abutting the entire Bog River Flow – 9,135 acres in all – and that the documents show that Governor Mario Cuomo approved a combination of Wilderness, and Primitive classifications in 1988.

APA responded by describing the 2000+ acre Hitchens Pond Primitive Area in the updated State Land Master Plan, “an essentially permanent primitive area unlikely to be reclassified as wilderness” because of the dams, the road, and the railroad line. The description begins “this area begins the access to a wilderness canoe route leading from the Bog River at Lows lower dam into Lows Lake above Lows upper dam and across Lows Lake to its western shore in the Five Ponds Wilderness Area…Preservation of the wild character of this canoe route without motorboat or airplane usage (and with only limited access by motor vehicles as noted below) is the primary management goal for this primitive area.” So, the Master Plan had a wilderness management goal for the entire flow and lake, yet the classification of the bed and waters of Lows Lake was not specified, leading to years of controversy and expensive litigation about motorized uses of the lake. Why, in heavens name?

The Lows shoreline and lake bed were undisputedly part of the Forest Preserve. The largest of the acquisitions, numbered 156 and 158, were clearly recorded in DEC and APA documents of the day as 6,413 acres. The only way to arrive at that acreage was to include the entire surface area of Lows Lake. The litigants Adirondack Mountain Club and Protect the Adirondacks proved to Judge Lynch’s satisfaction that this same acreage applied to the classification approved by Mario Cuomo. So, how could the state ignore its own lake classification for so long after 1988? This is not easily explained.

DEC failed to move quickly on one unit management plan that would establish management actions over the entire flow and lake consistent with the classification guidelines. Confusion reigned over whether Lows Lake was associated more with the Five Ponds Wilderness management unit surrounding most of the lake proper, or the two Primitive areas to the east involving the two dams and the flow. Also, float plane use had become firmly established on the lake, making de facto wilderness management immediately controversial. Also, the Boy Scouts still owned littoral rights on a small section of shoreline, and rights to operate motor boats. Since DEC felt it could not legally restrict private use of the lake surface, how could it also manage public use? Finally, there was no DEC impetus at the time to move ahead with any unit management plans. With all these obstacles, real and perceived, the lake classification of 1988 was ignored or misunderstood. Nobody moved to enforce it.

The “primary management goal” for the “wilderness canoe route” was one stubborn reminder that the issues could not be swept away. Eighty-six percent of Lows Lake was surrounded by the Five Ponds Wilderness Area. Conflicts had arisen between paddlers and float plane users. DEC initiated public meetings in 2000. These were contentious because they seemed to be about whether to force float plane operators off the lake when in fact they should have been about managing important regions of our forever wild landscape according to lawfully established guidelines. DEC then drafted the Bog River Complex Unit Management Plan which went to the APA in 2002. Public hearings ensued.

The UMP, duly approved by the APA and DEC Commissioner in 2003, called for an immediate end to public use of motorboats on Lows Lake, and an end to float plane use by 2008, and a host of other important management actions to manage the lake and its shoreline as Wilderness. When Commissioner Grannis decided to extend float plane use well past that deadline, litigation finally did ensue. That brought the matter to a head. In mid-2009, the state, litigants and float plane operators agreed to an outcome that would clearly establish classification of the lake as Wilderness, and allow float plane use for another three years, after which such use would be ended by regulation.

Unfortunately, APA reversed itself in November 2009 by claiming that it could not classify a lake like Lows Lake whenever one or more private owners – in this case, the Boy Scouts – maintained littoral rights along the shore. Such classification of mixed ownership lakes was unprecedented, APA argued in its court papers. The Master Plan only applies to state land and its guidelines and hence its classification scheme can not apply if part of the shoreline is privately controlled. What was behind APA’s change of vote and its legal argument? Intense political pressure, for one. Senator Little, Review Board director Monroe and local supervisors wanted to make it more difficult for the state to enforce the end to float plane use. By not classifying the lake bed, there would always be a question about appropriate, enforceable management of the lake.

Fred Monroe also told me he feared that classifying the bed of Lows Lake would enable some future APA to ban motor boats on such truly mixed-use lakes as Indian Lake. But the two situations are hardly analogous. Except for the small Boy Scout tract at its eastern margin, Lows Lake is virtually surrounded by State land classified Wilderness. Indian Lake may have Forest Preserve Wilderness along parts of its eastern shore, but mostly private land on its northern and western shores, and state land classified Wild Forest and Intensive Use (campground) on its southwestern margins.

APA legal counsel felt the wilderness management of Lows and other mixed ownership lakes could rely on new descriptive management language in the Master Plan itself, and that classification was either precluded (by the Boy Scout property) or could be fudged.

Both Adirondack Mountain Club and Protect the Adirondacks persevered in their legal challenge that the state was bound to classify the bed of Lows Lake and Bog River Flow. By ruling in their favor on August 15, Judge Lynch clearly made two points. First and most important, the State Land Master Plan defines state land as including both land and water, and that state land must be classified expeditiously after acquisition. Judge Lynch made a distinction between the obligation to classify state-owned lands and waters, and how to manage those lands and waters. Management challenges and conditions, including whether or not private land existed on the shoreline, ought to influence what classification to choose (Wilderness or Primitive, or Wild Forest, for example). However, it does not relieve the state from the obligation of ultimately selecting a classification.

Secondly, the Judge pointed to clear evidence that the lands and waters acquired in fee title on Lows Lake and Bog River – 9,135 acres in all – equaled the lands and waters brought to public hearing for classification in 1987, and equaled the classification acreage approved by Governor Cuomo a year later. In this part of his ruling, facts did indeed prove stubborn things.

Where does the decision leave matters? The Judge ordered the APA’s vote of November 13, 2009 not to classify the bed of Lows Lake and Bog River annulled. He further ordered that the 1987-1988 classification of the 9,135 acres included the beds and waters of Lows Lake, Grass Pond, Hitchens Pond, and Bog River. In effect, I believe the Judge ruled in favor of a prior existing classification of Wilderness for Lows Lake and Bog River Flow except for the areas leading to and around the lower and upper dams, and the inholding at Parkers Island, which were classified Primitive. While not prospective, the Judge’s ruling on Lows implies that DEC and APA are obliged to classify both land and water acquired in the future.

Meanwhile, the existing DEC regulation (www.dec.ny.gov) prohibiting further use of float planes on Lows Lake after December 31, 2011 goes into effect at the end of this year.

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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.




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