Monday, September 14, 2015

Dave Gibson: The State’s Double Standard

biking along the Chain Lakes Road South towards Indian Lake, July 2015This week, Adirondack Park Agency (APA) Member Richard Booth continued his efforts to get his Agency to focus on its policy and legal obligations.

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.

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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.




39 Responses

  1. Scott says:

    They don’t need a SLMP amendment to clear this up. Bikes are not allowed in Primitive Areas except on designated and posted roads. That is very clear. The problem is DEC definitions and terms used conflict. DEC uses the terms “motor vehicle trail” and ” truck trail” for roads. Having the word ” trail” for a road is the conflict. If it is a road , then call it a road. I agree bikes should not be permitted on trails in Primitive Areas but what is the harm of bikes on roads in Primitive Areas ?

  2. Boreasfisher says:

    Unfortunately, this post makes it abundantly clear that there are two standards being used by DEC and APA, one for the state and one for the inhabitants of New York. This cannot be hidden behind small arguments about sloppy language. Quite simple…if the APA and DEC want to be respected for their activities, they need to follow their own rules.

  3. Ed Zahniser says:

    Thanks, Dave, for this alarming report on the illegality of actions by the State. When the State violates the law for its own self-perceived convenience, all citizens should perk up and get worried about “What’ll they do next?” No wonder Donald Trump is leading in the polls! People want to throw out self-entitled politicians choking on forked tongues. But, for the record, I’m voting for Bob Dylan for president.

  4. Bruce says:

    The state says these “trails” are former all season roads, and as such can support non motorized use, Dave says they’re not. Unless they have been dug out, all season road construction should still be evident, even with some overgrowth. I suggest sending in a knowledgeable but unbiased observer to determine what the score is. Anyone know a road engineer who is neither connected to the state or environmental groups?

  5. Pete Klein says:

    There is an elephant in the room that those opposed to this plan don’t want to recognize.
    This UMP would not be up for discussion if certain assurances had not been made to the 5 Towns that their desires for universal access would be recognized and become part of the UMP.
    If those assurances had not been recognized, the 5 Towns would have opposed and prevented the sale of the land by TNC to the State, and the this discussion would not be taking place.
    To not honor those assurance would make the sale fraudulent and subject to reversal..

  6. Paul says:

    Amend the process so that classification and UMPs are amended prior to any sale transaction. Then this would not be an issue and everyone would know how the land was going to be used. If that delay means the state doesn’t get the land so be it.

  7. Paul says:

    Seems like there are two options.

    1. Amend the ASLMP to allow certain new activities in Primitive areas. Then do the UMP.

    2. Classify the areas where the activities that will take place as Wild Forest.

    I don’t think many people like the idea of changing the law to match each whim that comes along. That leaves number 2. It fully complies with the law and the rules. That would satisfy almost everyone which is the best you can hope for in a situation like this.

  8. Can we talk?

    When agencies are pressured by politicians to take actions that are not legal they will often try to take “predecisional” actions and/or establish new procedure by fait acompli.

    The only solution to these types of things is to 1. sue the agency to force them obey the law. 2. never give in or accept the fait accompli. 3. Publicize these actions in the media that the majority of the state’s voters read so they put countervailing pressure on the politicians that are making the DEC and APA do what they do.

    Once you stop publicly protesting a fait accompli it becomes established custom and precedent and if no one ever places these issues in the press or publicizes them the public will never know about them.

    So if people are serious about DEC and APA problems they will publicize them downstate. The governor will not ignore large downstate environmental groups.

    The only place in the US where this is apparently not understood is in the Adirondacks where environmental issues are fought exclusively with little-read term papers.

  9. Tony Goodwin says:

    As Peter Klein noted, there were certain promises made to the surrounding towns regarding access to these lands once they became Forest Preserve. Had those towns put up a concerted fight, this transfer and the other transfers from TNC to the State might not have taken place. Depending on ones perspective, this deal was a “good compromise” that added attractive land to the Forest Preserve, or a “cop out by ‘forked tonged’ politicians” that has ruined this acquisition. Dave Gibson is correct that this does violate the existing procedures and therefore sets a bad precedent going forward.

    My preference from the beginning of this classification debate would have been to have classified everything west of the Hudson River as Wild Forest. This would not have to mean water skiers on Third Lake or snowmobiles on every road. The Wild Forest classification permits the POSSIBILITY for such uses but in no way mandates that maximum motorized use must be allowed. The lands east of the Hudson River were combined to create a new designated wilderness area. It seemed to me at the time that all sides should have been pleased with that compromise that going forward did not put the DEC and APA in the position of having to ignore established procedure in order to fulfill promises made regarding access.

  10. Pete Klein says:

    Let me first agree with Tony and add the following.
    If has often seemed to me the whole purpose of basically dividing up the Forest Preserve into Wild Forest and Wilderness was to insure lawyers would make lots of money and create an eternal war over what words mean. It also gives environmental groups a reason to get all excited.
    If you are a human hiking in the forest or any wild animal looking for food or a mate, you can’t spot the difference between Wilderness and Wild Forest. The only real difference is whether or not a seaplane can land on a lake or a snowmobile can go through a section. There aren’t any signs in the woods telling you that you have just stepped off Wild Forest lands and into Wilderness lands.
    Fact of the matter is in a very real sense and for practical reasons, it is all wilderness once you step off trail and start bushwhacking. And it doesn’t matter one hoot what you call it.

  11. )jibway says:

    Sorry, Pete, but it is not all wilderness when you step off the trail. It may be wild forest but it is not Wild Forest, or Primitive or Wilderness unless the criteria in the SLMP say it is. That is the law.

    The Cuomo Administration, and DEC and APA under it, has repeatedly shown a complete disrespect for administrative,statutory and constitutional law. They have little regard for maintaining the integrity of Article 14. Their approach to care and custody of the Forest Preserve is about on the same level as that of the State Forest Commission before 1894 when they were selling it off to the lumber companies.

    They need to be watched like a hawk because you can’t trust them to do the right thing by the Forest Preserve, by the SLMP, by the WSRR system and other laws- at any time. What a sorry state of affairs in this Great State of New York.

    • Paul says:

      The state under the governor protects over one hundred thousand acres of land including adding tens of thousands of acres to the forest preserve and you equate that to the state selling it off to lumber companies?

      That is kind of a tough one to sell.

      • mike says:

        Cuomo added way more forest preserve acreage than any recent administration. He deserves a ton of credit for that.

        • Woody says:

          Cuomo is just writing the check for a deal that was created a couple governors ago. He is only entitled just so much credit. He can screw it up though, just like a closer blowing a save in the ninth inning.

  12. Peter C. says:

    The issue here is larger and scarier than bicycles on roads in the Essex Chain area. Almost everyone in state government seems to be afraid to stand up to the arrogance of power of the Cuomo administration. I’m a Democrat, but I find the frequent attempts by the current administration to withhold information and manipulate the law for their own purposes on a broad spectrum of issues to be antithetical to good government. Do we really want our government officials.to have a “might makes right” or “the ends justify the means” attitude? (If so, as mentioned in a previous post, there’s a presidential candidate available with the initials DT.)

    • AG says:

      Well now that he buckled to the special interest and is implementing the $15hr minimum wage… Expect more jobs on the lower scale to disappear. There will be more people leaving upstate. Upstate will lose jobs to Pennsylvania and the south. How many small businesses in the ADK area will have to cut hours or close because they can’t support their current staff if they make that jump? But that’s another argument for another time.

      • John Warren says:

        Why is it that as CEO pay has increased astronomically since the 1980s conservatives like AG never complained that their rising wages would hurt the economy?

        • AG says:

          Do you know what they say about assumptions??? Nothing in your comment was actually correct…. But don’t let that stop you. In any event – you will see the results.

  13. Wally Elton says:

    So what can concerned citizens do? Is anyone organizing an effort to change the way APA/DEC are doing things?

  14. Woody says:

    I agree with Mr. Gibson’s analysis about DEC getting ahead of itself–and acting beyond its legal authority–by preemptively allowing non-conforming uses in the Forest Preserve, so that others can be responsible for kicking them out if that is indeed the legal determination.

    And there is no doubt that this recreation-focused management approach is a top-down directive from the Cuomo administration. Rob Davies openly stated as much at an APA meeting this summer, when he told the state land committee that Joe Martens (who was still DEC commissioner at the time) ordered his staff to write a management plan for the Essex Chain that would allow Martens to ride his bicycle there.

    Here is an article about Martens’s former underlings doing what they’re told:

    http://www.timesunion.com/tuplus-local/article/Adirondack-trails-newly-opened-on-former-Finch-6446707.php

    But in addition to the SLMP issues raised in Mr. Gibson’s article, there is another legal issue that I don’t think anyone has noticed yet:

    The NYS Wild, Scenic and Recreational River System Act prohibits bicycle access to protected Wild River corridors, and raises a question mark in regards to Scenic Rivers. Therefore portions of DEC’s bike trail network in the central Adirondacks is illegal not just because of conflicts with the SLMP, but because they openly flaunt the WSRRS statute.

    DEC has therefore violated not just one law, but two–and I therefore have no confidence in its ability to manage my wild lands on my behalf. DEC has gone rogue and must be dealt with accordingly. I have stopped participating in these ongoing public comment sessions regarding the Essex Chain because I have lost faith that DEC cares about following its legal mandate.

    • Woody says:

      And to add to my statement above, whatever we allow DEC to get away with in the Essex Chain, they’re going to repeat (and probably expand) in the Boreas Ponds parcel, and then Follensby Pond, and then whatever comes up in the future. This is by no means a one-off event.

      • mike says:

        Those additions may never happen given all this blowback.

        • Woody says:

          This “blowback” pales in comparison to the blowback that would occur if a handful of towns with miniscule populations blocked a land purchase that would benefit the millions of people that live within a day’s drive of the Adirondacks. If necessary, the local veto could be easily bypassed by purchasing the lands with non-EPF money.

          • Curt Austin says:

            Now, wait a minute! I may be part of a minuscule number of residents, but I’m here 365 days a year. I’m a moderate on these issues, seeing both perspectives, but I’m not sure you are seeing mine clearly. I live on land my wife’s family has occupied since 1882; I mention this because Betty Little is sometimes asked why the state allows people to live in the Adirondack Park.

            As a moderate, my position is to keep focus on the ground, not the arcana of SLMP, UMPs, etc. Don’t get overstimulated by slippery slope arguments.

            • John Warren says:

              “I mention this because Betty Little is sometimes asked why the state allows people to live in the Adirondack Park.”

              Is that what Betty Little tells you Curt? That’s nonsense – she lies for political gain, and you should know that. She’s still claiming at public events that we don’t have enough cell service because of enviro-nazis. She has no credibility.

              It’s also a slippery slope argument that you are quick to caution against.

              The UMP and SLMP are the law. A “focus on the ground” is an opinion.

            • Woody says:

              Just because you live in the park 365 days a year doesn’t mean your opinion counts 365 times more than someone else.

              Town boards that represent miniscule populations should not be allowed to hijack the SLMP process. If these towns want “multi-use” trail systems, then they should buy their own land.

              • John Warren says:

                They don’t even have to buy the land outright, they can also do what every snowmobile club in the state has done and secure permissions or easements.

                • Paul says:

                  True, but having the trails on state owned forest preserve is a much more secure proposition. Easements change, permission can be revoked.

              • Paul says:

                Then the state legislature (as in reps for the entire state) should not have given the towns the ability to decide how they want EPF money to be spent.

                If the state does not want input from the local towns they are free to use other funds to purchase the land.

  15. mike says:

    Oh, I see, a work around for a law you do not like is ok. I thought you were pitching ‘we should follow the law’. Seems like a double standard

  16. Tom Payne says:

    Hit the nail on the head Mike. The law only pertains to the general folk. Breaking the law means nothing to the NYSDEC, APA and the Environmental lobby. Illegally taking roads, property or whatever the Environmental lobby wants. Collusion.

    • John Warren says:

      Do you have proof? Or only anonymous slanders?

      • Scott says:

        How about these “work around the law examples” examples: postage stamp spot zoning to allow non conforming structures in wilderness or canoe areas (firetowers); wilderness areas that have non conforming features like roads, dams, and outposts. You can always have it your way.

  17. Tom Payne says:

    Yes. But not on here. Back in court. You can through the lobbyist and lawyers working for the NYSDEC, APA and the environmental lobby. All one in same.

  18. Paul says:

    This whole patchwork of rules and laws and overlapping agencies seems to be part of the problem.

    DEC
    APA
    WSRR
    EPA…….

    No wonder things are so crazy. It is all a lawyers dream come true!