Monday, June 25, 2012

Dave Gibson: Saratoga-North Creek RR, On To Newcomb

News comes this week that the Saratoga & North Creek Railroad (Iowa Pacific Holdings) has gotten federal go-ahead to extend commercial rail uses to and from the former mine at Tahawus, Newcomb. I extend the company and the towns through which the spur line passes a thumbs-up and good luck, not just for its rail rehabilitation and future commercial success, but for its educational success.

That said, the State of New York, by failing to hold public hearings to share information and hear opinion about the complicated issues behind re-extending the line from North Creek to Newcomb, failed its responsibilities for the Forest Preserve.

Thanks to the railroad, passengers can now gain greater appreciation for the Adirondack Park heading to North Creek from Saratoga Springs. North Creek anticipated and organized at many levels to receive these passengers and enhance their total experience. I know much more could be done to interpret the Adirondack experience along the way, and Adirondack Wild stands ready to help.

While the company seems only interested at present in hauling out the waste rock left at the mine to the north, the passenger experience to North Creek should eventually extend to the geographic heart of the Adirondacks in Newcomb where a significant nucleus of educational activity awaits potential rail passengers, whatever their age and inclinations, such as:

• the Historic Area at the former village of Adirondac, where one of the nation’s earliest blast furnaces for smelting of iron (c. 1854) is interpreted;
• stunning Henderson Lake and Mt. Adams at the southern entrance to the High Peaks Wilderness Area, a part of the Forest Preserve;
• a lovely small wayside museum that interprets the former log drives on the upper Hudson River;
• the magnificent vista of the entire High Peaks Wilderness from the nearby Town park;
• moving west, access to the restored Great Camp Santanoni, which has National Historic Landmark status (as does the entire Forest Preserve);
• trail or highway access from there to the Adirondack Interpretive Center operated by the State University’s College of Environmental Science and Forestry.

I haven’t even mentioned the country’s longest-running wildlife research station at SUNY’s Huntington Wildlife Forest and Adirondack Ecological Center; Masten House, where we hope SUNY will operate a wilderness training center; and exciting future bicycling, canoeing and kayaking opportunities, and related guiding services on the Upper Hudson and Essex Chain of Lakes (former Finch Pruyn lands) which we hope will soon become part of the Forest Preserve.

Suffice it to say, there is plenty of wild land, as well as cultural experience to attract visitors to Newcomb from North Creek by rail, as well as by state highway and bus if the rail company, Town of Newcomb, State, County and private sectors work together in common purpose.

As the company begins to restore the track north of North Creek, it should be very careful about not introducing invasive species of terrestrial and aquatic plants and animals. State Legislation was just significantly strengthened in this area that should cause the railroad to use great care and best practices. Along the Boreas River, a designated State Scenic River, the company also needs to observe very strict standards.

To the State of New York, I say “job not well done” in the way the State failed to defend the public’s interest along 13 miles of rail that runs through the Forest Preserve in Essex County, and failed to hold hearings to share information and discuss the issues openly.

Initially, the State’s Department of Environmental Conservation raised its concerns in writing to the federal Surface Transportation Board about the validity of the rail’s right of way (ROW). Then, after Governor Cuomo, Senators Schumer and Gillibrand, and Congressman Owens applied pressure, DEC swept those concerns, in fact the entire history of these issues, under the rug, and allowed the State Department of Transportation to, in effect, speak for it. Here’s that history. Charles C. Morrison, Jr., kindly provided me with documentation, but any errors in description and interpretation are mine.

The issues of extending commercial rail uses from North Creek to Tahawus revolve around the 1942 condemnation by the United States of a 100-foot right-of-way easement “for the transportation of strategic materials vital to the successful prosecution of the War,” meaning World War II. That strategic mineral was ilmenite, or titanium dioxide. The United States built the spur line to Tahawus for $3 million. Condemned property included 13 miles of NYS Forest Preserve (middle and northern spur), along with 17 miles through lands of various private owners (southern spur). The easement over the many private property owners was deemed permanent. The easement over the Forest Preserve was deemed “temporary” for fifteen years after the war ended.

After WW II ended, NYS sought to have the 13 miles revert to NYS ownership citing violation of Article 14, Section 1 of the NYS Constitution. NYS lost in the US Court of Appeals, and the US Supreme Court refused to hear its case. National Lead leased the line to transport the strategic materials out of Tahawus mine starting in 1942.

By 1962, titanium no longer “strategic” to a war and widely available in the world, the US General Services Administration, not content with annual lease income from NL, sought to surplus the ROW and rails. To buy time for this surplus sale, the GSA asked a federal court to extend the eminent domain and ROW easement for 100 years. NYS Conservation Department, in a dereliction of its responsibilities for the Forest Preserve, no longer contested this 100-year extension of a federal taking.

The 100-year easement was “for the same purposes” as in 1942 but then, inconsistently, it also states “for the location, relocation, construction, maintenance, operation and removal of railroad facilities.” The easement was thus extended to 2062, with NL Industries now transporting only the waste magnetite ore out of Tahawus. In 1989, the GSA auctioned off the rolling stock, rails and ROW to NL Industries for under $1 million. NYS did not bid. The last load of ilmenite, the strategic material and stated purpose of the ROW, left Tahawus in 1982. Mining for that mineral ceased. Waste rock for use as road fill left the mine by rail until 1989, when the rail spur ceased operation. Waste rock and magnetite ore was then transported by truck.

Given that the ROW was no longer used to transport strategic materials vital to a war that ended in 1945, the State in 2011 or 2012 should at least have held public hearings on the question of whether or not the 1962, 100-year easement was null and void. It should have held public comment on whether or not NYS should remove unconstitutional rail occupancy along 13 miles of Forest Preserve.

Not that these questions are unambiguous. Saratoga & North Creek Railroad (Iowa Pacific Holdings) would have argued in a hearing that the 1962 ROW easement remains valid for another 50 years “for the location, relocation, construction, maintenance, operation and removal of railroad facilities.” Furthermore, the DOT rail abandonment regulation is also highly ambiguous, giving the DOT commissioner all sorts of leeway to exempt certain lines.

There is another ambiguous legal issue. The NYS Wild, Scenic and Recreational River regulations overseen by DEC disallow new railroad uses along Wild and Scenic rivers (1/2 mile river corridor on either side of the river). The Tahawus spur runs along the Boreas River, a designated Scenic river. Arguments could well be made that rail restoration and use, defunct since 1989, is a new use, and hence prohibited by regulation, or that the rail spur and ROW were pre-existing. In addition, there are very important points to be made about what types and extent of recreation should be allowed within the ROW.

Again, DEC should have insisted to the Surface Transportation Board that public hearings be held so that historic and contemporary information would come forward, and public opinions heard. Ambiguities might abound, and decisions would still have to be made, but informed arguments could be weighed. If the hearing were adjudicatory, evidence would be presented. Perhaps, in considering all the evidence or arguments the decision would be to extend the line; perhaps it would be to subject the extension of rail use to a constitutional amendment, and a public vote. After all, the Forest Preserve is the public’s business, whether you live on Long Island, Newcomb, or in Buffalo. Instead, without consulting the public, our custodian for the Forest Preserve, the NYS DEC, ceded its responsibilities to the federal government and “hit the delete button” on 60 years of history about a rail line through an Adirondack wilderness.

Photo courtesy Enid Mastrianni.

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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 over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest Preserve

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 managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.




9 Responses

  1. Pete Klein says:

    All good points, Dave and I would add just one.
    A ticket option to and from NYC,
    Also an opportunity for cab service from North Creek to wherever.
    I do wish all well.

  2. Paul says:

    “The NYS Wild, Scenic and Recreational River regulations overseen by DEC disallow new railroad uses along Wild and Scenic rivers (1/2 mile river corridor on either side of the river).”

    Seriously? This law disallows the building of a RR in one of the most common places that one would be situated? This is part of the reason that so many scenic RRs are popular. Even many of the “transportation” RRs (look at some of the ones in Canada) are popular for this same reason. They should have regulations to oversee the construction in these areas but a ban seems like a bad idea. You can build roads in these areas with a permit why not a RR? Not that we have too many new RRs being built these days.

  3. Paul says:

    Sorry, I re-read this. So they don’t even allow “new uses” on existing lines in these areas? That is ridiculous.

  4. Curt Austin says:

    NL did some maintenance on the line between 1989 and 2011 (clearing brush, repairing washouts), but let some things go (road crossings, signaling). “Abandonment” is an absolute in its normal meaning, which is probably the operational definition in New York in this context. No adjacent land owner erected a fence across the line, as far as I know. The Unit Master Plan for Vanderwhacker (2005) was silent on it. Federally, abandonment is a procedure as well as a physical act; physically, abandonment requires that the rails be removed.

    (There is a DOT-administered statute that uses the term “abandonment” in a context that presupposes the continued legal status of the ROW. Under this statute, the corridor was indeed declared abandoned, and Iowa-Pacific needed NY’s concurrence to purchase the line, which was granted quietly a year ago.)

    In short, the claim that the line was abandoned won’t fly.

    Mr. Morrison appears not to accept the Supremacy Clause in the U.S. Constitution when he says NY’s constitution is being violated illegally. It is being violated legally.

    In my efforts to convert this corridor to a bike trail, Federal jurisdiction over this corridor became an important question – with it, there is an easily invoked procedure to prevent reversion to adjacent property owners upon abandonment. I received conflicting advice on this question, but it is now settled by the recent STB action. Further, to gain DEC-DOT support, Iowa-Pacific agreed to cooperate with the trail-conversion procedure when they eventually abandon the line. I say “eventually” since the ROW over state land ends in 2062.

    I hope we don’t have to wait that long, but it is looking good that the corridor will eventually become a trail – not just over the 13 miles of state land, but the entire 29 miles from North Creek to Tahawus. Let me state the obvious: I like riding a bike a lot more than riding a train. For one thing, I live in the Adirondacks because I like being outdoors! It’s good for my health, too. Lots of people think the same, so much so that they ride their bikes several times a week. Great bike trails attract a lot of people, too, if you want to consider the economic issues – next time you’re on Cape Cod, count the bike racks. By the way, you can take a train onto Cape Cod, but the rail corridor that continues on to Provincetown is now a bike trail. It’s a great combination.

  5. Paul says:

    Curt,

    I agree the bike trail on Cape Cod is nice. I think that the majority of the users of that trail came to Cape Cod because of the ocean and the beaches and maybe not the bike trail but maybe I am wrong.

    Personally I like the idea of a bike trail, but I also think that the Adirondack railroad could be a great opportunity to have a unique RR (similar to the Durango and Silverton narrow gauge RR in SW Colorado) The RR could serve flag stop trail heads and put ins for paddlers all along the line. That would be a very unique thing that could actually attract people to the area specifically for this use.

    Why don’t we convert some of the already abandoned rail lines in the Adirondacks into new bike trails? Why fight over this one line?

  6. lauren says:

    I’m wondering if they really will run trains up to tahawus again? The train company is wisely non-comitted, yet.

  7. Curt Austin says:

    Paul,

    People are attracted to places that provide a range of appealing activities. On Cape Cod, you’ll find people fishing along the ship canal who have bikes equipped with rod holders (there are bike trails on both sides). I guess I’ve gotten too old to enjoy beaches for more than about ten minutes. Riding the Provincetown bike trail is an unforgettable experience. I like Sparrows on the CCRT in Orleans – great coffee and treats. I like being in a place that knows how to cook seafood properly! My point here is that North Creek should strive to provide a variety of attractions.

    (But you build a bike trail mainly for yourself, for your own community’s benefit. It’s like a town park with moving benches.)

    I’ve heard it argued that the train would be a great way for folks from NYC to get to the High Peaks trailheads. Anyone familiar with those trails know this isn’t workable for a variety of reasons. Hauling your kayak up the Hudson? If this was a desired service, it would already be happening to the south. Take away the nostalgia of trains (which, by the way, NYC residents do not feel), and it’s obvious that cars and buses are more appropriate forms of transportation.

    I’m pretty sure there are no other unused rail corridors with intact legal status in all the central and southern Adirondacks. The north, too, as far as I know. There are two operating train corridors, but just a a few miles of one rail trail (south of Lake George).

  8. Charles Morrison says:

    Dave – Good article! However, I can’t agree with the idea of making a good thing out of a bad thing with scenic viewing, interpretation and education and all of the great tourist attractions in Newcomb, that you also are roundly (and rightly) condemning as an Article 14 violation. We are not at the point where we need to make a silk purse out of a sow’s ear. I particularly hate it when you say “Thanks to the railroad, etc.” We all like tourist trains – but they have no intention of doing a tourist train here, unless they are lying to the STB. They intend to run one freight train a day, five days a week. I’m not about to say thanks to a self-serving commercial corporation that has willfully just run over Article 14 for corporate gain.

    I like your roast of DEC. They deserve every bit and more.

    Some minor corrections/factoids..

    The State’s lawsuit ran from 1942 to 1946. It did not start after the war as you say

    The 15 years “after the duration of the war” did not start until 1952 when Truman officially declared the war to be over. That period would have ended in 1967.

    The 100 year easement superseded or replaced the 15 year easement. It was not an extension.

    In 1989 GSA auction the easements, rails, ties spikes etc. It did NOT auction rolling stock, That was owned by D & H which was operating the spur under contract to NL while NL leased it from the feds.

    Waste rock was never transported by truck, It was transported by rail for a couple of years in the late 1980s before the railroad was shut down by NL in 1989, mostly in the 1987-1989 period after Harold Simmons bought NLI in 1986.

    Magnetite ore, which can be economically moved by truck, has been taken out by truck since the 1990s but scraping the tailings piles and loading the trucks has been a one or two person operation only and there is only enough left for a couple of years at that rate.

    Until June 14 when STB’s decision, now being appealed by Sam Sage and myself, imposed preemptive federal law on the Forest Preserve ROW, State abandonment law and the State common law on easements re termination and reversion after abandonment, have applied to this private industrial spur. Section 18 of Transportation law is not at all “ambiguous”. The criteria for abandonment are very specific, as they are in APA regs also. DOT cannot make exceptions as you say but they do have preferential rights to acquire an abandoned ROW for trail purposes. DOT has waived those right to allow Saratoga and North Creek to operate. After 1989, no longer owned by the feds, this private spur was abandoned and that became legal two years later with termination and reversion following. Once the feds auctioned the rails and easements in 1989, they had no further ownership authority over the easements.The ICC, the STB’s predecessor, never had authority any because the spur was private. So, the easements – regardless of their federal origin – were subject to State abandonment.

    On WSSR, new railroads are prohibited STATEWIDE (not just the Adirondacks) in Wild River Corridors and Scenic River Corridors. For an existing train to restart after abandonment there would be a “motors” prohibition for the engine to address. if not the total prohibition as in this case necause it would be a new start after abandonment. Railroads are allowed in Recreational River Corridors. We hasten to add, because it always requires explanation, that these three classes are established as a result of land use conditions in the corridor. Recreational river corridors are developed. Scenic corridors are pastoral, etc.

    DEC is entrusted by law with administration of WSRR on the Forest Preserve in the Park, not APA which only covers WSRR on private land.

    I know that you know that this situation is not suitable for an Art. 14 amendment. Knowing that it is not desirable, feasible, possible,why bring it up? It steers people the wrong way.

    I really like your last sentence. But it’s 70 years. Time flies.

  9. George Harding says:

    I like Daves informative article and agree with his arguements. However, if you’d had ongoing public meetings, you might have ruined the postive end results. Unfortunatly the general public can be very stupid sometimes. Notice how the governor recently changed the gun laws after the horrible incident in Conn. The governor scares me a little, but I like his style.

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