Wednesday, July 29, 2015

Martens Reverses Old Mountain Road Decision

In one of his last acts as the state’s environmental conservation commissioner, Joe Martens overturned a predecessor’s finding that part of the Jackrabbit Ski Trail was still a town road and therefore could be open to snowmobiles, ATVs, and other vehicles.

Martens, who left his post last week, wrote in a July 22 decision that the road had long been abandoned and so the state had the power to close it to vehicular use. The road in question — known as the Old Mountain Road — cuts through the Sentinel Range Wilderness between Keene and North Elba.

Under the Adirondack Park State Land Master Plan, motor vehicles are prohibited in Wilderness Areas. One argument advanced by Martens is that local towns did not object when the road was closed under the State Land Master Plan. Every edition of the master plan since 1987 has noted that the road “has been closed and the area now conforms to wilderness standards.”

Furthermore, Martens said that under state highway law, a road is considered abandoned if it has not been used as a highway for six years or longer. Old Mountain Road, he said, fit that criterion.

The decision vacates much of the decision of a former environmental conservation commissioner, Alexander “Pete” Grannis, who ruled in May 2009 that the road had not been legally abandoned.

Grannis’s decision was a victory for Jim McCulley, president of the Lake Placid Snowmobile Club. A forest ranger had ticketed McCulley for driving a pickup truck on Old Mountain Road.

Shortly after that decision, staff from the Department of Environmental Conservation asked the commissioner to clarify certain legal questions raised by the ruling.

In response to the motion for clarification, Martens reviewed the case and concluded that the original decision was wrong. Nevertheless, he said DEC will not reinstate the ticket against McCulley.

McCulley and his lawyer, Matt Norfolk of Lake Placid, said Wednesday that they intend to appeal to New York State Supreme Court and perhaps to federal court as well. “They’re going to lose, and it’s going to set an even bigger precedent,” McCulley told Adirondack Almanack.

Norfolk said there was no legal basis for clarifying the original decision. Consequently, he said the ruling by Martens is “null and void. The motion should not even have been entertained.”

Norfolk also disputed Martens’s interpretation of the highway statutes. “His conclusion flies in the face of well-established case law on how you determine whether a town road has been abandoned or not,” he said.

The 3.5-mile stretch of old road is one of the most popular sections of the Jackrabbit Ski Trail, which extends 24 miles from Keene to Saranac Lake.

“We think that the commissioner’s decision makes sense,” said Josh Wilson, executive director of the Barkeater Trails Alliance (BETA), which maintains the Jackrabbit and other trails.

However, Wilson said the Grannis ruling had little effect on the Jackrabbit Trail’s use.

After the 2009 ruling, the town of Keene allowed local residents to ride all-terrain vehicles on the road during hunting season. However, few took advantage of the opportunity.

Keene resident Tony Goodwin, Wilson’s predecessor (BETA was then known as the Adirondack Ski Touring Council), is concerned that the latest decision will rile up advocates of motorized use. “Given that there’s been so little use [of the road by ATVs], one hopes there’s not a big backlash,” he said.

McCulley said he is less concerned with opening the road to motorized use than he is with defending the rights of local towns. “It’s about the state taking things that don’t belong to them,” he said. “It’s an abuse of power.”

He accused DEC of taking marching orders from the Adirondack Council, which intervened in the case.

Willie Janeway, the council’s executive director, praised the decision. “We are very pleased that Commissioner Joe Martens looked at all of the evidence in this case and reaffirmed that the Old Mountain Road was legally closed to motorized traffic long ago. The commissioner verified the importance of the Adirondack Park State Land Master Plan in resolving disputes over acceptable uses of the ‘forever wild’ Forest Preserve,” he said in a news release.

Photo by Susan Bibeau: Jim McCulley walks along Old Mountain Road.

 

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Phil Brown

Phil Brown is the former Editor of 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.




26 Responses

  1. Tom Payne says:

    Albany skullduggery at its best. Payoff!!

  2. Charlie S says:

    Like we really need to add more motorized access to get to where we wish to go! Especially in a wilderness area. Good for you Joe Martens. This is more about common sense than it is about a devious nature!

    • Paul says:

      This is not ADDING motorized use. It is/was already a road. I think this is a big mistake legally fro the DEC. Let a higher court decide the issue and it will clarify the situation for many other roads one way or the other. Good luck in court.

  3. Russ Nelson says:

    The problem with Martens looking at the 6 years criteria is that if a road is illegally blocked, no part of the time it is blocked counts towards the 6 years. Norfolk will no doubt argue the chilling effect of the DEC-issued ticket will negate the 6 years argument. He’ll also look for evidence of any signs or chains or cables blocking the road.

  4. Todd Eastman says:

    This is good news. Fine decision by Martens!

  5. roamin with broman says:

    Martens overstepped his bounds for sure. Also what a d.bag move to do this on the way out……

  6. Bruce says:

    I think the real question is does a once public, but no longer used town road passing through Wilderness designated lands usurp the no motorized use rule?

    The town is the best judge of whether or not the road is in “use”, and since they did not object to the closure, they have spoken. Closing the road is a win for the town, because any road they no longer have to maintain is a benefit to the taxpayer.

    Was McCulley hired by the town to fight for their rights? If not, I believe he has little or no standing on that score. They’re grasping at straws.

  7. amen says:

    Great, common-sense decision. I can understand being pissed off he he did this on the way out the door — but it was clearly the right decision.

  8. Tom Payne says:

    Common sense? Grasping at straws? Then Laws are only valid and enforceable when it benefits the Green Agenda? Law selectively enforced by the NYSDEC. The NYSDEC has lost every time they went to court in this case. The NYSDEC knows they illegally closed those roads. Now we have a outgoing NYSDEC commissioner trying to circumvent the law to appease the powerful NYS Environmental Lobby. Second floor at the NYSDEC Commissioners office backroom dealing at its “Albany” finest.

  9. Hope says:

    Not sure if this is used much by Mtn bikers but if DEC prevails then there will be no bicycles either. I would think it would be a great connector for Mtn biking of Keene and LP. Careful what you wish for.

  10. Dave says:

    Nothing says the new guy in charge cann’t just reverse the decision.

  11. Paul says:

    This is one where the DEC may see later that they should have let this sleeping dog lie. I am not sure how they would win an appeal. It doesn’t matter what Martens thinks what matters is what the court decides.

    Grannis “agreed” with McCully that this was an open road and dismissed his ticket because the alternative was to lose in court and make it so that lots of other roads in the Adirondacks improperly closed and abandoned could be re-used by motor vehicles.

    So the agreement that the DEC and McCully came to is not binding? Weird.

    Like the Explorer said in one article that agreement left many old roads in “limbo”. This could change that and probably not in the way wilderness advocates will like.

  12. Ryan Finnigan says:

    Roads that allow for motorized access don’t belong in wilderness areas. Period. End of story.

    • Paul says:

      The road was there before the wilderness classification. The good thing here is that the appeal will determine if it was properly closed. Even if it is shown that it wasn’t the town would still have the opportunity to close the road and abandon it properly and you will have the same result. The issue is who gets to decide more than what the decision is.

    • mike says:

      That would mean we close Route 73, Rd 86, and so on.

      • Paul says:

        No I think they can be a border of a Wilderness area. You just have to have at least 10,000 acres of qualified Forest Preserve on both sides of the road. For example for 73 you have the Sentinal Range Wilderness on one side and the High Peaks Wilderness on the other. Two different Wilderness areas.

  13. Charlie S says:

    There is something about the mindset that puts up a stink about a road closure in the wilderness. The wilderness is being free’d and people act as if a parcel of them is being robbed.

    If I were able to snap my fingers and have wishes come true on a whim I would’ve been transported many moons ago to that era when Thoreau was being observant at Walden Pond. What a peaceful world it must have been with no cars racing by,no airplanes flying over,no lawn mowers…so much less noise to discombobulate the thinker.

    I imagine it will be only another generation or two before cyborgs will have taken over this society…people who would rather blow leaves with a gasoline-powered contraption more than they would want to rake them. We’re 50% towards a zombie nation already. In 50 years,if the Earth is still alive,instead of people footing it over trails to lean-to’s in the woods they’ll be conveyed by hovercraft and they’ll most likely be bringing their solar-powered televisions and microwave ovens with them.

    If one were to pick out of today’s crowd who those future cyborgs just might be you need go no further than some of the posters here on Adirondack Almanack.

    • Bruce says:

      Charlie, it smells like the same stink the snowmobilers put up when the ADKRR tracks and right of way were being discussed. Oh wait did the article say McCulley was president of the Lake Placid snowmobile association?

      “There’s your sign.”

      It’s clear what this is really about, and it’s not the legality of the road closing, or protecting the rights of the towns.

  14. Dave Gibson says:

    I appreciate what Joe Martens did in reversing his predecessors decision on Old Mountain Road. This is a Wilderness route. I just re-read former Commissioner Grannis’ 2009 decision. It shows how very challenging rights of way and jurisdictional decisions are in many places in the Adirondacks (and elsewhere). Interpreting the Highway Laws is not a simple exercise. I think Commissioner Martens made more sense by selecting the absence of motor vehicles over six years as the standard for abandonment, not the absence of muscle-powered recreation. But Keene might still have to affirmatively file the notice of abandonment. However that may turn out, it is a fact that DEC under any commissioner could use another section of the highway law (212) to settle this question once and for all. DEC should have used Section 212 in the first place.

  15. Matt says:

    It appears that a court ruling in McCulley’s favor could have implications for private landowners with a questionable public highway ROW on their land. As they say, careful what you ask for… Perhaps he’ll drive his truck onto one of the old ROWs on private land next?

    I wish I had that much time on my hands.

  16. Kev says:

    The decision to make more and more of the park inaccessible to the public is another example of the kind if stupidity that leaves a depressing mud flat where the beautiful pond at Marcy Dam used to be for decades before being destroyed in 2011 by Tropical Storm Irene and the State of New York decided to not lift a finger to repair it and allow it to return to its “natural state”.

    • John Warren John Warren says:

      Nearly every spot in the Adirondack Park is within 3 miles of a road and nearly every large lake you can drive right into – how much more accessible would you like it?

  17. Bruce says:

    Good point, John.

    If the DEC were to open every road or trail to snowmobilers, ATV and mountain bike users, they would be happy until they got bored, or the trails became unusable, then want more. There’s no end to it.

    See the article on “skidding” in VT. The mountain bikers feel the trails they have are too tame, so they’re remaking the trails, not caring about other users or maintenance issues they’re causing.

    http://www.tetongravity.com/video/bike/illegal-skidding-causes-a-ruckus?utm_source=Adirondack+Explorer+%26+Adirondack+Almanack&utm_campaign=725afb62ef-Adirondack_Almanack_RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_b49eb0d11b-725afb62ef-47315189

  18. Rich Benjamin says:

    When a road is abandoned under NYS highway law in this instance, the town is abandoning the maintenance of the road. Not the public’s right to use the road. That is why the case was easily won in court.

    The word “abandoned” in the law does not meas “closed”.