The NYS Department of Environmental Conservation (DEC), which has a seat on the APA, presented its Final Draft Unit Management Plan (UMP) for the Essex Chain of Lakes Primitive Area. Mr. Booth, who chairs the APA’s State Land Committee, has repeatedly advised the DEC that drafts of the controversial UMP are not ready for APA public comment because they violate key sections of the Adirondack Park State Land Master Plan, which has the force and effect of law.
The DEC, apparently prodded by Governor Andrew Cuomo, bulldozes ahead irrespective of the law.
UMPs cannot amend the State Land Master Plan (SLMP), they must comply with it. To quote the Master Plan (page 10): “In accordance with statutory mandate, all plans will confirm to the guidelines and criteria set forth in the master plan and cannot amend the master plan itself.”
Yet, at its September 10th meeting both the APA and DEC staff co-mingled Final UMP recommendations with future, anticipated SLMP amendments that might, once approved at some unknown future time, make those UMP recommendations legally defensible. That’s putting the cart before the horse, and everybody knows it. Only Mr. Booth was willing to make that point, publicly and explicitly.
I think the average person finds something more than a little improper when a state agency asserts it is following the law because it safely assumes a future law change will be approved and make current activities OK. Try convincing the State Police that what you illegally did last week is OK because your State Senator is going to introduce a bill to make it OK in the next session. That is what DEC is asserting. It is the latest example of a historically stubborn double standard in the Adirondack Park: one for the state, another for the rest of us.
For example, nine miles of bicycling routes in the Essex Chain of Lakes and Pine Lake Primitive Areas has already been opened to public use by DEC administrative order in July (which established a pattern of recreational use virtually impossible to alter, which was precisely its intention) and in the Final Draft UMP it is recommended that these bicycle routes remain open.
Trouble is, the SLMP doesn’t allow such use in Primitive Areas, only in Wild Forest. To quote the Master Plan, All Terrain Bicycles “may be used (in Primitive areas) on existing roads legally open to the public and on state truck trails designated for such use in individual unit management plans.” Bicycling is not allowed on trails in Wilderness areas or Primitive areas, only in Wild Forest.
None of the bicycle routes now open and proposed to remain open in the Essex Chain Lakes and Pine Lake Primitive Areas are on “roads legally open to the public” or on “state truck trails designated for such use.” They are on an as yet legally undefined type of “trail” which the UMP clumsily calls “former all season roads as non-motorized recreational trails.”
Again, bikes on Primitive (Wilderness) trails are not legal under the Master Plan.
Nonetheless, DEC succeeded in getting APA to send the Essex Chain UMP out for public comment before Master Plan amendments are proposed, much less approved by the Governor. Contrary to law and policy, the Essex Chain UMP is amending the Master Plan itself.
Lest I beat this to death, this is what the Memorandum of Understanding between the DEC the APA (signed by their respective commissioners in 2010) states:
“A UMP cannot amend the APSLMP and as finally adopted shall be in conformance with the general guidelines and criteria of the APSLMP. Any issues with respect to conformance of a proposed UMP with the SLMP will be resolved and any necessary amendments to the SLMP acted on…prior to DEC providing the APA with a proposed Final UMP for final review and determination as to whether such UMP complies with the general guidelines and criteria set forth in the SLMP.”
As I hope I’ve made clear, contrary to law and to the above MOU DEC has presented a Final UMP for final review by the APA well in advance of resolving and acting upon any necessary amendments to the SLMP.
I really enjoyed several days of bicycling in the Essex Chain area this summer, despite the flies. I learned a lot, bounced around a lot, and got some good exercise. And bicycling in the Essex Chain may be something, Member Booth said, that he could support if a SLMP amendment, well drafted and properly reviewed in full public view, authorized it to take place here – first, before a UMP is presented as final.
Booth asked DEC repeatedly on September 10, where in the current version of the law (SLMP) does it state that bicycles are generally permitted in Primitive Areas? DEC’s Rob Davies, who presented the Final UMP, floundered around for an answer, an answer he clearly knew.
Booth persisted. Finally, Mr. Davies had to admit that bicycles are generally not permitted in Primitive Areas (which must be managed according to Wilderness guidelines). “Then why doesn’t the UMP state that bicycles are generally not permitted in Primitive Areas,” Booth asked him? How would a member of the public, reading the Final Essex Chain UMP, reach that understanding?”
The answer from Mr. Davies was telling. “We will propose a SLMP amendment to clear this up for this area (meaning the Essex Chain).” Again, the DEC presented the Essex Chain UMP as legally compliant because it anticipates a future change in the law, not because it is currently compliant with the law.
Sadly, only one member of the APA, responsible for interpreting the State Land Master Plan, seemed to find this “sequencing” improper – that of sending out a UMP for public comment that is known by the APA to be in conflict with existing law in anticipation of future legal changes. APA staff confirmed that there will be proposed SLMP amendments drafted and presented (with appropriate legal documents) in the fall – precisely the season that APA is expected to determine if the Chain Lakes Plan is SLMP compliant.
There are many other serious legal problems with the DEC’s Essex Chain Lakes UMP which have been pointed out in prior posts by me and by many others. We’ll see what happens at the APA in October and November.
A copy of Adirondack Wild’s comment letter to DEC is available here.
Photo: Biking along the Chain Lakes Road South towards Indian Lake, July 2015.