Friday, June 19, 2015

Illegal Wilderness Trails: Intention Is Everything

Bushwhack Fallen Spruce and DuffA few weeks back there was quite a kerfuffle here at the Almanack over this post by Dan Crane, concerning illegal trails he came upon along the border of the Five Ponds and Pepperbox Wilderness areas.

Comments, accusations and counter-accusations flew back and forth over whether illegal trials in the Wilderness constituted a big deal or not, who knew they were there and whether they were in fact a common and accepted part of the back country.

I think these are important questions, as many unsanctioned trails in the Wilderness violate the letter of the law and arguably the spirit of Forever Wild too. Illegal trails can lead to a variety of environmental and aesthetic problems. But, as is usually the case in the Adirondacks, the extent to which this is the case is a matter of degree. It is also, in the final analysis, a matter of intention.

Let us first agree that the magnitude of the issue is immense. There are illegal trails all over the Adirondacks. Taken together with illegal camps (usually off-trail), tree stands, informal dumps and everything else one comes upon, the human imprint is all over Adirondack Wilderness. Some of it is damage recovering from past use, much of that associated with old roads. Some of it is brand new.  Most of it, in my experience, consists of features with a measure of longevity that have been maintained at some level.

There are plenty of places in the Adirondacks I have not ventured. Of the many areas I do know well however, I can think of only a couple of large swaths where I have not encountered any evidence of trails used by human beings (not to say they weren’t there). As anyone knows who has spent even a little time in the Adirondack back country, thin soils, fragile vegetation and the abundance of water means that even a few traverses over the same route will create a herd path  – essentially a followable trail (followable being a relative term, dependent on experience). That’s true even if one doesn’t intentionally clear brush or break branches.

It would help to have a formal – i.e. official New York State – definition for an illegal trail in Adirondack Wilderness.   This is not as clear cut as one might think and the facts will likely disappoint Forever Wild purists.   We must begin with that famous declaration, Article XIV of the State Constitution.   A strict interpretation of this article would seem to prohibit trails altogether, for it says that state lands must be kept as “wild forest lands” and further directs “nor shall the timber thereon be sold, removed or destroyed.” Foot trails are not specifically exempted (in fact the only trails mentioned at all in the Article are ski trails, these described in the amendments added in the mid-twentieth century to allow ski resorts on Forest Preserve).   That means technically that any foot trail requiring the removal of a tree violates the New York State Constitution.

Fortunately we have the long-standing principles of “spirit of the law” and “common practice” to help us avoid what would be a ridiculous restriction. Constitutional articles are always broad and intended to be subject to interpretation. It’s common practice for humans and animals alike to use foot trails – they are considered a common part of wilderness.

Indeed, the Adirondack Park State Land Master Plan (SLMP), which codifies common human practices in the Wilderness around the concept of “conforming uses,” specifically includes foot trails, with the restriction that they are built “in a manner causing the least effect on the surrounding environment.” This is a restriction obviously subject to interpretation and judgment. Elsewhere the SLMP sets a few additional and commonly known parameters, such as allowing for trail relocation, bridges and ladders made of natural materials and setting minimum distances for camping and the like. The SLMP does not specifically prohibit anyone from constructing a trail that meets these parameters, any more than it restricts anyone from camping where they like so long as they fit those parameters.

It falls to New York State’s Environmental Conservation Law to speak directly to illegal trails. It does so on a very narrow basis. As noted by Bill Ingersoll in a comment on Dan Crane’s post, it was written specifically to address the High Peaks Wilderness Area. Here are the relevant excerpts verbatim:

190.13 Use of State Land: Wilderness Areas in the Adirondack Park

b.11 Trail” means a marked and maintained path or way for foot, horses, or cross country ski travel.

     f. Miscellaneous restrictions

3. In the High Peaks Wilderness Area, no person shall:

1x. mark trails with plastic ribbons, paint, blazes or other devices, cut or clear trails, or mark summits with canisters except by written permission of the department;

This is pretty weak stuff. It’s written only for the High Peaks Wilderness Area, leaving all other wilderness areas to the whims of trail builders. What’s more, it’s given little priority in the context of a very large document. As an example, here are some other regulations which are peers with this one:

190.13.f.1 No person shall fail to register whenever passing a trail register established by the department in the Eastern High Peaks Zone.

190.13.f.3.x. (no person shall) possess a glass container, except that glass containers which are necessary for the storage of prescribed medicines shall be exempt from this prohibition.

How many readers regularly violate the first one? How many readers even know about the second? Surely there must be better and higher priority protections against trail cutting than that!

Fortunately DEC is granted by law considerable powers to work within the general parameters established the SLMP to protect the Forest Preserve so long as they are reasonable and meet the standards of common practice and the spirit of the law. Dealing with illegal trails would seem to fit that bill. So I corresponded with DEC over the last two weeks to get their policy on illegal trails. Here is their official response:

There are numerous undesignated trails, also known as herd paths, on the Forest Preserve and other State lands. These are typically formed by numbers of people repeatedly traveling to a specific site such as a mountain summit, scenic overlook, swimming hole or place to fish. DEC does not encourage the formation of herd paths, but does not typically enforce against those who create or use herd paths provided the paths:

  • Do not cause damage to sensitive habitat,
  • Are not cleared of any vegetation, large rocks or other obstacles;
  • Have no trail infrastructure such as water bars, bog bridging, stairs, ladders, etc., and
  • Are not marked with blazes, markers, flagging or other means.

Only DEC or their designees can make, mark and maintain trails, others that do so are violating state land use regulation.

This seems to draw a pretty clear line. Most important, it clearly establishes an unambiguous standard of intention. If an informal trail “springs up” of its own accord due to the repeated passage of people heading to a specific destination, so be it. However if there is an intention to create a trail – evidenced by any clearing activities of any sort – then DEC interprets this as violation of state regulations.

This is not clearly understood by users of the Adirodnack Forest Preserve. A lot of the arguments we see over trails have to do with their purpose, their scope or both. A trail may have a purpose to facilitate hunting, or allow access to a rock climbing destination, for example. Those purposes seem reasonable, but the purpose is irrelevant according to DEC policy. Purpose implies intent – if it is other than a herd path, it’s out.

So is scope. There is a hunting trail that leaves roughly from John’s Brook which I follow for more than a mile as to reach my High Peaks in-holding, Lost Brook Tract. It is relatively innocuous to be sure – an inexperienced would lose it in several places. Its scope would seem entirely excusable, it’s intentional: there are cut logs, trimmed trees, cleared vegetation and some flagging. Modest in scope though it is, it is illegal, both in the letter and spirit of the law as interpreted by the State.

But what about the fact that using such trails is unquestionably common practice in the Adirondacks? Here the acceptance of herd paths – of trails formed merely by repeated hiking to a certain destination – gives us a practical out and a reasonable understanding. Hunting trails or routes to good climbing routes need not be cleared or flagged to be useable.

So what are we to make of all the illegal trails in the Forest Preserve? For the most part not much, I think. The only intent-based violations I find on a regular basis are flagging and some modest branch and downed timber clearing. Both are temporary effects easily swallowed by time and the wild proclivities of the Adirondacks. On the other hand more gratuitous violations should be noted and objected to, as Dan Crane did.

The arguments that there are a lot of them and/or they always been there, are specious.  They have nothing to do with the standards DEC applies. If the trails are intended they are illegal, end of story.

Some will say that in fact DEC does not follow or enforce this policy. This objection too is specious. We cannot fault DEC for failure to hew consistently to their own trail policy – or even look the other way in many cases. DEC does everything it can with far too limited resources; they have to set priorities. All of these trail matters are necessarily judgment calls.

It is incumbent upon all of us then, as in so many things Adirondack, to be good stewards ourselves, to call attention to the more egregious violations of trail policies and to advocate for them to be addressed. In the mean time I will bushwhack and herd path myself to Lost Brook Tract with a clear conscience – as soon as I take a couple flags down.

Photo: along the bushwhack route to Lost Brook Tract

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Pete Nelson

Pete Nelson is a teacher, writer, essayist and activist whose work has appeared in a variety of Adirondack publications, and regularly in the Adirondack Almanack since 2005. Pete is also a founder and current Coordinator of the Adirondack Diversity Advisory Council, which is working to make the Park more welcoming and inclusive.

When not writing or teaching mathematics at North Country Community College, Pete can be found in the back country, making music or even walking on stilts, which he and his wife Amy have done professionally throughout the United States for nearly two decades.

Pete is a proud resident of Keene, and along with Amy and his dog Henderson owns Lost Brook Tract, a forty-acre inholding deep in the High Peaks Wilderness.




22 Responses

  1. M.P. Heller says:

    If I agree or not, I always read your articles, Pete. One of the good things about having a former college instructor among the regular contributors is the happy feeling that a well written piece will always be submitted by that correspondent. Sometimes it chagrins me slightly when such a prolific writer begins to disseminate what amounts to thinly veiled political rhetoric as fact in such a widely read publication such as the Almanack.

    Your suppositions regarding the fact that certain ‘unsanctioned’ facilities such as trails, primitive seasonal camps, stashed rowboats and canoes, and various other ‘nonconforming’ items and ‘improvements’ to the backcountry exist and are in abundance is absolutely correct. Further, that these facilities and structures exist on what has been designated as ‘wilderness’ by government agencies which do not possibly have the cash or labor resources to even fundamentally enforce the regulations that have been created through the passage of legislation or administrative action, is a fault of design, not a fault of implementation, that causes your consternation. The individuals who dedicate their careers to protecting our resources suffer the same human frailties that we all do. Despite an enormous amount of commitment, these men and women are often very overworked.

    Another thing that I think many readers and writers who frequent this site fail to recognize on an appreciable level is that those charged to enforce laws and regulations in the Adirondacks are often the same people who grew up here. The neighbors they have now are the neighbors they have always had, or at least a facsimile thereof. That being understood, it’s not easy to enforce against your neighbors who sometimes don’t always follow the letter of the law when you and your family are 2% of the population in a hamlet and your wife and kids have to go to work and school with the other 98%.

    Small town living is not always easy. Sometimes you have to do things as a matter of course that you don’t always agree with fully. Just because it doesn’t conform to the absolute letter of the law doesn’t mean its conspiracy to undermine the establishment.

    I think rather than make dramatic pleas to correct perceived transgressions, it would be better to come to a greater understanding of the longstanding demographic of Park residents than it would be to spout impassioned rhetoric which only serves to alienate you from the fold. Unfortunately, it’s a common mistake of newcomers, and one which you should quickly outgrow.

    • Pete Nelson Pete Nelson says:

      MP:

      What a thoughtful, well-written comment. Thank you.

      However, I’m not sure what your objection is. Everything you write here makes sense to me. The entire article was about following the spirit of the law and common practice, not following the letter of the law. I just don’t happen to think that means that all unsanctioned trails are okay.

      Rather than engage in rhetoric I was interested in doing an analysis of the issue from a perspective of what the law and DEC both say, in terms of the letter of the law but also common practice. I especially wanted to do this because it is unclear to most people (and was to me). I was not interested in decrying every illegal trail. I hope you didn’t miss either the part where I asked what we should do about illegal trails and answered my own question with “not much” or the part where I backed DEC “looking the other way” and said that with very limited resources DEC had to have priorities. I think DEC does a terrific job in all respects and have always said so. I’m not making a dramatic plea.

      With that said, and with a full understanding of the small town dynamic of friends and neighbors you described (which is exactly as it should be), I retreat not one bit from my belief that egregious violations should be noted and, if possible, addressed. Small town or large city, there are always challenges to the letter of the law – indeed there should be. Decency and compassion will always be far more important than fealty to the rules. Small town living may not always be easy, but city living can be much worse. I have seen incredibly decent acts in the worst neighborhoods of Chicago and I have seen indecent acts that you or I would never do in toney Hinsdale.

      Likewise, as I said in the article, most unsanctioned trails in the Adirondacks, strike me as no big deal. But you and I both have seen trails we would never cut, damage we would never do. I’m not going to make excuses for people who do that, small town or not. Even something as basic as removing flagging when you are done with it is a decent thing to do. The hunting trail I described is not legal but it’s also not indecent – it’s as simple as that. Why would I “turn someone in” for that, the implication you suggest that I’m making? On the other hand some years ago I myself reported an entirely indecent whack job west of Blue Mountain Lake. It was egregious and I don’t care who made it.

      I concluded in my piece that the State interpretation of illegal trails was really about intention. Intention and decency are inextricably entwined.

      Finally, this resident/non-resident divide deserves to fade into extinction. I’ve been visiting the park for more than five decades. I’ve collectively spent several years of my life inside the blue line. I’ve worked here. I’m involved in many Park activities and political matters. I have a deep and precious network of friends, some spanning decades, all but three or four of them permanent residents. I’m not a newcomer. Feel free to call me an outsider if you like, or non-resident, though I see no profit for anyone in it.

      Most of all, keep writing. Your contributions are always a cut above.

      Pete

      • Adam says:

        Sorry, but a person contributing to the gentrification of an area doesn’t get to decide that the “resident/non-resident divide deserves to fade into extinction.” No. Well written article, though.

  2. Pete Klein says:

    Is a herd path an illegal trail? If so, the ADK Mountain Club is guilty of pointing them out in some of their guide books.
    But legal or illegal, I don’t see them as problem needing to be solved. As pointed out above, there aren’t enough Rangers to do anything about them and even if there were, what should they do about them? Take DNA samples to try to figure out who the guilty parties might be: who created them and use them? Maybe plant trees in the paths?
    The most I see the Rangers could do if they wanted to be so bothered would be to take down any markers that highlight the trail. A better use of their time would be to make certain the official trails are properly marked which is not always the case – probably for the same reason they don’t have the time to take down any markings on the herd paths.

    • Pete Nelson Pete Nelson says:

      Pete, per my post, herd paths are technically illegal, built not enforced by DEC subject to the conditions they listed above. So as a practical matter they are not an issue.

      I don’t see herd paths as a problem to be solved either, save for the ones that get so bad from a combination of frequent use and poor routes that they should be made official so they can be routed and maintained correctly. As you know, this adoption of herd paths is a common practice in the Park.

  3. M.P. Heller says:

    Pete, thank you for the kind reply.

    I think you touched on the crux of the issue perfectly when you spoke of intent, decency, and the dichotomy these two concepts possess. As we whittle away the extra noise surrounding the discussion at large, really this is what the debate all boils down to.

    Obviously there is a range of opinion amongst the interested parties as to what is decent and what intent(s) are genuine. Some would say that absolutely no reason exists that could ever justify the cutting of a path or the construction of an impromptu shelter. Others claim that DEC, APA, and other regulatory agencies tasked with the oversight of the Forest Preserve are overly draconian with their interpretation and implementation of the land use regulations. Neither of these things is likely correct. A common ground must be found so that meaningful progress can be achieved. That means compromise is required in order to attain results. Unfortunately, many of the most vocal and active members of the community are also the most rigid in their beliefs. This stubbornness and unwillingness to work with others only drives the cause of proper land use and management in the Adirondacks backwards. It creates bad feelings between groups and individuals and creates factions within the ranks of the Parks greatest asset. It’s supporters and caretakers. It’s actually quite ironic. It’s also rather sad.

    So what is the proper course to take with regard to unsanctioned facilities in the backcountry? It’s an interesting question. What constitutes improper? Do the herd paths up Mount Marshall qualify as nonconforming paths? What about the paths I have encountered in the Sawtooth Range or the Sentinals which sometimes run from one end of a summit ridge to the other? What about the ones Dan Crane wrote about last week? Clearly these three situations are very different, but what are those differences and how do they matter when it comes to land management?

    Pete, I welcome you as a neighbor to the community. For better or worse there have always been divisions between full time, part time, and transient individuals within the Blue Line. I don’t expect this to change any time soon. If every now and then someone raises an eyebrow or gives an odd look it’s probably not personal, they are most likely just wondering where you are from. (Tongue firmly in cheek.)

    Have a great weekend and Father’s Day. Perhaps you will take up some of the questions that I raised in a future piece. I think they are important issues which could help define the future management of Forest Preserve lands.

    • Pete Nelson Pete Nelson says:

      Dear M.P.:

      As the post stated, DEC does not practically consider the (confused mess of) herd paths an issue. Indeed, all situations are different.

      To the rest I’ll simply say “well said.” Yes, good points, perhaps to be written about in the future.

      I’ll be a permanent resident soon enough. We’ll cross paths before long, I’m sure. Until then, thanks.

      Pete

  4. Paul says:

    Pete, the “hunting” trail that you use to get to your tract (part of the way) will eventually be gone if it were not being used. It will eventually be gone either way as trees fall etc. That process takes longer in places like the High Peaks where the forest is pretty mature and blow-down is less frequent. What is your plan for access in the future? You can’t bushwhack a different path every time? If you travel in roughly the same path each time you make a trail, call it a human “runway” (as in the deer kind). I am amazed at how I find myself traveling the same routes in trail-less territory. Just like with other animals we seem to follow the path of least resistance, trail or no trail.

    • Pete Nelson Pete Nelson says:

      Good question about Lost Brook access. Sure we can bushwhack a different route every time. Assuming we visit the tract as often as we plan in my view that would cause more damage than sticking to the route I have tried to determine as best and least disruptive… and yes, least resistance is part of it! In any case herd paths are a reality if you travel to the same place more than a few times.

      It’s interesting. As you no doubt do, I take advantage of animal trails frequently in the back country. In the environs of Lost Brook Tract there aren’t any sizable enough for me to have noticed.

      • Paul says:

        I agree, sticking to the same path will be lower impact, especially with frequent trips in there over time. Especially when there is more vertical bushwhacking all over the place would probably not be good. Most of the bushwhacking we do for hunting is done at lower elevations and mostly on flatter terrain.

        In the high peaks wilderness (given the rules there) wouldn’t the creation of a herd path by frequent use be the same as “clearing” a trail under that rule. On a herd path overtime the growth of vegetation is hampered by use and the trail forms over time. Also herd paths like this if a dead limb or tree falls across the path your gonna throw it out of the way. Seems like a fine line to me.

        Given the rules it looks to me like this type of herd path making (“trail”) activity is “legal” in any parts of the FP with the exception of the High Peaks Wilderness.

        • Paul says:

          Pete, for your land you cannot be barred from access especially on foot so I don’t think the rules apply in your case.

  5. Tim/Brunswick says:

    OMG….isn’t Pete just so wonderful……………………Gimme a break!

    I thought Dan Crane was a bit too much, but Pete Nelson is off the scale. The Adirondacks haven’t been true “wilderness” for 100’s of years, with camps, roads and even hotels in some spots scattered throughout the park.

    The above picayune, nit picking analysis of what apparently an “elitist” group perceives as their own private playground shouldn’t even be given space.

    Unbelievable!

    • Pete Nelson Pete Nelson says:

      Hi Tim!

      “Off the scale…” I’m so flattered! I take that as the highest praise. Thank you.

      I’m not sure why I’m bothering, but hey, it’s Saturday night! And there is one point that maybe is worth thinking about a little: elitism. So…

      As usual you have elitism bass-ackwards: “I should get to do whatever the hell I want with the land! Open it up! It’s not wilderness anyway! Don’t tell me what I can or cannot do with MY (public, State-owned) land! Because MY version of the playground is the right one! Yours is lilly-livered!” Or whatever.

      Isn’t that kind of thinking just brave and special.

  6. Tim/Brunswick says:

    Thank you!

  7. Justin Farrell says:

    Good read, thanks for sharing.
    Most, if not all of the “herd paths” and “unofficial trails” that I’ve encountered over the years have shown at least some evidence of maintenance (cleared brush, cut logs, broken branches, etc), which would technically make them illegal. So I guess that I really wasn’t wrong after all in my comment on Mr. Crane’s post, unless there are herd paths out there that do not have any cut logs or broken branches along its course, but I’ve yet to find one that still gets occasional use.
    When they lead to an illegal and trashed campsite or similar is when I get annoyed and notify the DEC, and even then the priority to actually do something about it seems very low on their list.

  8. Paul says:

    ” herd paths are technically illegal, built (I assume you mean but?) not enforced by DEC subject to the conditions they listed above. So as a practical matter they are not an issue.” This is an interesting perspective. What do you mean, they have said that since they can’t deal with them they are not an issue? The same logic would fit that illegal boats stored on state land as well as illegal camps also are not an issue since there isn’t the person hours or time to deal with the illegal activity. Perhaps they should list subject conditions for any illegal activity in the woods? I think they should not make rules they cannot enforce.

    The “gentrification” comment is ridiculous. Anyone willing to make a go of it in the Adirondacks has and will always be welcome.

  9. ADKerDon says:

    The article and comments point out many good reasons for opening more trails throughout the Adirondacks. The fact that these trails exist shows that there are people who want to go to their destination. The wider dispersing of the folks, the better it is for the lands. DEC should not be required to mark a formal trail to every destination. Informal, unmarked trails should be allowed throughout the Adirondacks, especially on the wilderness areas. Let the folks who want to get away from the crowds at the “High Peaks” and other sites do so. Let them enjoy the back country and mother nature without marked trails and people. Let those city people who get lost walking around the block use the marked trails of the High Peaks and let them dream that they are in the wilderness.

  10. Dana Rohleder says:

    Interesting discussion. Back in the 80’s when High Peaks “trailless peaks” herd paths were still only herd paths, the DEC rangers typically just tore down plastic marking tape that obviously looked out of place in a wilderness setting. But that was back when funding was a little better and rangers had more time to patrol less-traveled areas. I no longer hike in the High Peaks, so I don’t really know what they have time to do now, but I think removing fluorescent flagging is a good compromise.

    One should also consider that leaving a well-defined herd path to your favorite tree stand or fishing spot will in the long run be counter productive…

  11. Hawthorn says:

    My personal opinion is that herd paths are both legal and historically accepted by all, including the powers that be. The worst violations are and I suspect will be for a long time to come when motorized vehicles proceed into the backcountry, often via old logging roads or trails to start. However, gradually, the old trail becomes wider, fallen trees are removed, limbs are cut, ruts are formed, corners get berms, plants are trampled, etc. A much wider swath of nature is destroyed. Policing the illegal motorized use of the backcountry is the best use of resources.

    • Paul says:

      It is certainly faster process when an ATV is involved. But look at many of the trails in the HP Wilderness plenty of what you describe there as far as environmental damage. And lots of it is in high alpine vegetation that is very scarce, It just depends on the number of users. A hiker smashes plenty of organisms, not as many as an ATV but still plenty. Some campsites on state land are so denuded they have to be closed.

      Herd paths are certainly historical and accepted by many just like some of these other trails being described are as well. My guess is that most are not marked so they are legal as well. I agree they are legal in places outside the HP Wilderness but you think making a new one in the HP Wilderness is legal?

      I agree with you on what the focus of enforcement should be.

  12. common sense says:

    The reason for the high peaks specific reg was somewhat a result of trails from the AMR that were maintained from private land through to destinations on public lands. The public could hike to the boundary but was then met by signs of no trespassing. Why have a trail cleared to a “no trespassing” sign on public lands. These private access routes are the reason for the High Peaks reg. Like it or not.

  13. Neil Luckhurst Neil Luckhurst says:

    The day before yesterday (June 24) I took the “Old” Northville Placid trail where it splits from the current NPT roughly a mile north of the Wanika Falls intersection to the Averyville parking area. Recently (within two weeks) someone hung orange flagging and put red rectangular paint blazes along the trail. The frequency of the flagging and paint was quite a bit of overkill, especially considering that the trail was already pretty easy to follow, even in the dark. (There was a bit of ambiguity at the trail’s southernmost extremity due to some flooding and tall grasses but nevertheless there is a clear foot path. )

    Perhaps someone here knows about this recent activity or might have a comment or two regarding the legality. I have yet do do so but will send an inquiry to the DEC as well.