The current Forest Preserve classification process underway at the Adirondack Park Agency (APA) for the new lands around the Essex Chain Lakes and the Hudson River is likely go down as the worst administered process in the 40-year history of the APA. Since the close of the public hearing in mid-July, the APA leadership has openly subverted state law and moved decision making from an open and transparent public forum to a smokeless backroom.
The process has gone awry. The train has run off the tracks. This is evidenced by four recent events:
1. APA has subverted its laws and openly ignored its legal responsibilities
The overarching directive of the Adirondack Park State Land Master Plan (SLMP) is natural resource protection for the Forest Preserve. The SLMP states on page 1 that “the protection and preservation of the natural resources of the state lands within the Park must be paramount. Human use and enjoyment of those lands should be permitted and encouraged, so long as the resources in their physical and biological context as well as their social or psychological aspects are not degraded.”
The SLMP also requires that the APA classify state lands according to their characteristics and ability of lands to withstand use and provides four criteria for this. These criteria include analysis of physical characteristics (soils, slopes, elevation, water, among others), biological (sensitive habitat, rare species, wetlands, wildlife, among others), intangibles (remoteness, views, ruggedness, among others), and existing uses (roads, buildings, uses, among others).
After this evaluation and analysis, the APA selects the best of nine different classifications, ranging from Wilderness to State Administrative. The APA also has to comply with the Wild, Scenic and Recreational Rivers Act.
In March 2013, James Connolly (recently retired) and Kathy Reagan of the APA staff provided a good presentation to APA Commissioners about the APA Forest Preserve classification process (you can watch it here). Here’s the sequential process they enumerated for how the APA makes its classification recommendation:
- The first step is the assessment under the State Environmental Quality Review Act (SEQRA). This includes analysis and development of a variety of APA staff developed alternatives.
- The staff alternatives are submitted to the APA Commissioners, who review and ultimately approve taking various alternatives to public hearing.
- The next step is formal public hearings, which are held throughout the state where verbal and written comments are encouraged and accepted.
- Once the formal public hearing closes, the APA staff then develops a record of public comments and a Final Environmental Impact Statement.
- This is followed by a formal staff recommendation to the APA Commissioners.
- The APA Commissioners vote on a final recommendation.
- The APA Chair and the Department of Environmental Conservation (DEC) Commissioner then jointly make this recommendation to the Governor.
- The Governor then approves or rejects this recommendation.
The other major document that governs an APA Forest Preserve classification decision is the Final Programmatic Environmental Impact Statement (FEIS). This document accords the APA with the responsibility to preserve new wilderness opportunities where possible due to the shortage of such opportunities across New York and the eastern U.S. The FEIS notes that “intensive recreational” uses are abundant throughout New York, whereas only in the Adirondack Park can we protect Wilderness on a large scale. The FEIS also states that acquisitions of large tracts must be evaluated first and foremost for Wilderness classification due to scant opportunities elsewhere. The FEIS clearly holds high the optimum natural resource protection values provided by a Wilderness classification.
What has happened since the close of the public hearings in July is that public recreational use has driven the classification review by APA, not natural resource protection. The decision now being developed by the APA is being formulated in various smokeless backrooms and not in an open and transparent public forum.
2. APA leadership is actively negotiating with the DEC, Governor’s office and others with the objective of forging an agreement for the APA Commissioners to approve
The APA leadership is energetically engaged in negotiating a deal with the DEC, Governor’s staff, and others on the classification of the Essex Chain Lakes and Hudson River. While these negotiations are ongoing the APA leadership has implemented a policy blackout for all legal and policy materials relevant to Forest Preserve classification. While negotiations are underway the APA has steadfastly refused to develop the necessary and required policy and legal documents. The APA leadership is waiting until a political deal has been reached before it puts pen to paper and drafts these materials.
Once a deal is reached, the APA Chair and executive staff will then submit this deal to the APA Commissioners. At that point, the deal will have the support of the APA Chair and the three state votes. What of the rest of the APA Commissioners? Clearly, their role has been usurped. Will this be an issue? Doubtful. It appears, sadly, that most of the APA Commissioners don’t want to wrestle with the substantial legal and policy issues and will be quite happy if the deal is effectively made for them, is blessed from on high by the Governor, and requires only their rubber stamp. It’s highly likely that the APA Chair will be greeted by a cheering chorus of Commissioners for saving them from having to make any independent judgments. Part of the choreography of the deal is that APA staff will be directed to write legal and policy documents to support this agreement.
There is no better illustration than the classification process unfolding before our eyes for the Essex Chain Lakes and Hudson River to show how far the APA has fallen. A once proud and independent agency governed by the rule of law and a professional independent staff that debated issues in an open and transparent public forum is now making exclusive decisions behind closed doors.
Note that there is nothing in the classification process detailed at the APA’s March 2013 meeting about negotiations by the APA Chair and Executive Staff with other agencies, the Governor’s staff, or other various interests.
3. APA has withheld information from its Commissioners and the public in a deliberate policy blackout to facilitate closed-door negotiations
The public hearing closed on July 19, 2013. At the APA’s August meeting, the APA devoted nearly the entire day and a half to the classification decision. Since August, the APA has gone into a 90-day (and counting) policy blackout and has refused to release any information of substance to its commissioners or the public. At the end of its August meeting, APA Counsel Jim Townsend developed a list of more than three dozen items where the Commissioners requested additional information about classification matters. As of the APA’s November meeting, Townsend has reported back on about one-third of these items. This hardly represents a vigorous priority to get information to the Commissioners.
At the end of the public hearing in July, the next step for the APA under the State Environmental Quality Review Act (SEQRA) was to develop an official “Response” document to the substantial issues raised in the public hearing by some 3,600 public comments. The APA has not released this document. The APA leadership has delayed the preparation and release of this document so that it can be written to support a political deal reached in a smokeless backroom. This is hardly what SEQRA intended.
At the end of the APA’s September meeting, State Lands Committee chair Richard Booth, a Cornell Law professor, requested that the APA staff prepare a legal and policy memo that detailed major legal and policy issues involved in the four principal classification options before the APA – Wilderness, Primitive, Canoe and Wild Forest. The APA leadership has delayed the preparation and release of this document so that it too can be written, if it’s written at all, to support a political deal reached in a smokeless backroom. This is contrary to the purpose behind Booth’s request. Note that the APA Counsel Jim Townsend says he fulfilled Booth’s request, but maintains that his response is subject to attorney-client privilege and even though it was requested in a public forum it will not be made public and included in the public record. Have any other Commissioners seen this memo from the APA Counsel? When was it circulated?
To fill the void created by the APA leadership’s decision to implement a policy blackout for the APA commissioners and the public about key legal or policy matters for the APA’s classification decision until a political agreement is finalized, APA Commissioner Richard Booth drafted his own legal memo about classification options and circulated it to APA Commissioners and the DEC. The APA Counsel also states that the Booth analysis is not a public document and will not be part of the public record. It’s subject to attorney-client privilege. It’s shielded intra-agency correspondence. To the APA leaders, thoughts about the peoples forest are not suitable for the people.
The APA’s position is troubling. If Booth had received an adequate legal and policy document from the APA Counsel, then why did he feel compelled to write up his own analysis? The Townsend memo, if it exists, should be made public.
Another troubling aspect of the APA’s decision to negotiate in a smokeless backroom, rather than air these issues in a public forum, is that it has handcuffed the APA staff’s ability to do its job. The only people paid by the State of New York as Forest Preserve policy experts are the APA’s state lands staff. This stuff is their job. Yet, as the policy blackout over the past 90 days has shown, the APA leadership has basically prevented them from doing their jobs, which in the best of all possible worlds would mean that they provide the APA Commissioners and the public the full range of legal and policy options for the APA’s classification decision and make an impartial recommendation based upon natural resource protection. This has not happened.
The APA leadership has worked mightily and effectively to keep its Commissioners as well as the public in the dark about its looming classification decision, while energetically negotiating with other state officials and various interests to cut a deal.
Note that there is nothing in the classification process detailed at the APA’s March 2013 meeting about delaying or withholding information to facilitate negotiations by the APA Chair and Executive Staff with other agencies and various stakeholders.
There are a lot of games being played here. The public should have access to all materials on which APA Commissioners will base their decision. That’s a pretty simple standard.
In my experience as an environmental advocate over the past two decades, negotiations on decisions are moved out of public forums to smokeless backrooms when the law and other official rules and regulations need to be bent or subverted. If the law is to be upheld and fully complied with then discussions occur in open and transparent public forums.
4. Governor Cuomo has committed his senior staff to broker a deal
In an effort to expedite a deal, Governor Cuomo has dispatched his top environmental staffer from the Capital to a course of shuttle diplomacy to align the various agencies and interests. The goal here is to create a checkerboard of various recreational uses over the Essex Chain Lakes and Hudson River lands to satisfy the broad range of conflicting interests. This level of executive leadership in the final details breaks new ground for involvement by a Governor in an APA Forest Preserve classification review and decision.
Note that there is nothing in the classification process detailed at the APA’s March 2013 meeting about negotiations involving the Governor’s executive staff.
This process has been far different than other Forest Preserve classifications from the very beginning. The level of deal making has topped anything that has come before us. This was initially evidenced by the DEC’s “concept plan” that detailed a DEC vision for the entire 69,000 of former Finch Paper lands. DEC had never before provided a document with this level of detail, or engaged the public and various interests to gin up support for its position, as part of its classification recommendations to the APA for new Forest Preserve lands. This clearly showed a level of deal making from the very beginning where DEC’s primary focus was always about recreational management and not natural resource protection.
When the APA went to public hearing last summer, it included as one of seven alternatives the DEC’s preferred option of a Wild Forest classification with a Special Management Area, despite the fact that a Special Management Area is a Unit Management Plan function and not a classification function. The Special Management Area was based upon a series of special deals for things like seasonal floatplane access to the Essex Chain Lakes and road access, among other considerations.
The public hearings in June and July 2013 were generally well managed and generated a lot of very good public comments across the recreational use and political spectrum. The decision to hold only three of the eight hearings outside the Adirondack Park was unfortunate, but overall the APA gets high marks for soliciting input. The hearings resulted in over 3,600 public comments than ran 4-1 in favor of a Wilderness classification.
Unfortunately, after its August meeting, the APA has moved to a policy blackout in order to facilitate its backroom negotiations. The APA followed the DEC’s lead here. In essence, the DEC has coopted the APA and brought it over to its way of doing things of trying to parse recreational uses as its primary consideration with natural resource protection and the law as secondary considerations.
The sad fact here is that much has been lost in the current frenzy to hammer out a recreation plan under the guise of a classification recommendation for the former Finch lands.
The sad fact is that the checks-and-balances relationship between the APA-DEC has been subverted. One agency is no longer holding the other accountable over the management of the people’s forest.
The sad fact here is that the Governor has subverted his own checks-and-balances responsibilities for approving or disapproving the APA-DEC classification recommendation as he has dispatched his top staffer into the fray to cut a deal.
The sad fact is that it appears most of the APA Commissioners have acquiesced to abdicating their responsibilities for upholding and implementing the APA Act and SLMP.
No one at the DEC seems troubled by trampling the APA’s independent role or by making a decision almost exclusively based on recreational management.
The APA leadership is blazing full steam ahead with negotiations in smokeless backrooms so it is clearly untroubled by usurping the authority of the full APA Board of Commissioners, circumscribing the independence of its staff review and judgment, or by failing to administer a process faithful to the SLMP or FEIS.
It’s clear that the APA is dragging its feet and refusing to make public important policy and legal analysis for Forest Preserve classification. In the best of all possible worlds, the generation of this information should be done impartially and in advance of a decision so that it helps to educate and inform decision makers. The APA is working diligently to keep decision makers in the dark until after a deal is struck. The APA is working diligently to keep information from the public, hiding behind attorney-client privilege and shielded intra-agency communications. What the APA is withholding is information that consists of the thoughts of a legal scholar on the SLMP and classification of the Forest Preserve. These are not state secrets. This is not the war on terror. This is legal and policy analysis about the Forest Preserve, the peoples forest, New York’s great public domain.
Decisions about the Forest Preserve should be made in an open and transparent process.
The natural resources around the Essex Chain Lakes and the Hudson River that are on the line with this classification decision are truly stunning and beautiful, rich and dynamic, rare and unique. This is a largely intact forest landscape that connects other major forest ecosystems in the Park. Public Forest Preserve ownership will allow these lands to grow wilder over time, unlike most of the rest of the world. This is a landscape of unblemished lakes and ponds that are home to a unique and sensitive fishery. This is a landscape with 22 miles of New York’s grandest river in its wildest state.
Unfortunately, the Forest Preserve classification and management process is being driven by recreational uses exclusively and all meaningful deliberations have moved from an open and transparent public forum to a smokeless backroom.
The Forest Preserve deserves better.