Monday, November 23, 2015

Gibson: APA’s Legal Fiction To Motorize Forest Preserve

Dan at APA (2)I wish to recognize Adirondack Park Agency board member Art Lussi for his insistence over the past several months that the NYS Department of Environmental Conservation (DEC) provide a legal rationale for allowing expanded motorized uses in the Forest Preserve’s protected river corridors. When DEC failed again last week to provide that legal explanation, Lussi joined Richard Booth in voting no on DEC’s plans for the Essex Chain area because they fail to comply with the State Land Master Plan.

Now we have two members of the Agency – two out of ten – willing to stand up and be counted for the State Land Master Plan, which has the force and effect of law. Under this APA administration, that’s progress.

I don’t intend to be at all flippant about this. One often hears that “it’s easy to criticize”, but in fact it’s not easy for an APA member to offer and to sustain criticism of APA or DEC’s actions. It’s particularly difficult under the present administration, where public disagreements about public policy are more than frowned upon and collegiality is often defined as “going along.”

At APA’s August meeting, Lussi asked DEC to explain. “The draft states that motorized use predates the Rivers Act and the Master Plan, therefore continued motor vehicle access is authorized by statute and regulation. I’m struggling with that language,” he said. “There has been no historical public use of the Polaris Bridge (over the Hudson River), so how can that the statement in the UMP be true? I can’t see adopting that statement in this UMP,” he concluded.

Lussi was among a number of people who have persistently asked DEC to explain why it is legally defensible to authorize motorized use of the Forest Preserve’s Scenic and Wild River corridors on the grounds that lessees and guests of Finch, Pruyn rode motor vehicles on these same corridors when the land was in private ownership.

This “grandfathering” argument – that prior uses on private land can continue on public “forever wild” Forest Preserve  –  has been rightly identified as a legal fiction by APA Member Richard Booth.

The “forever wild” clause of the New York State Constitution states that the Forest Preserve, now owned or hereafter acquired, shall be forever kept as wild forest lands. And nothing trumps the Constitution.

Adirondack Wild and other organizations agreed with Richard Booth. In Adirondack Wild’s October letter to the Agency, we wrote:

“The Final Draft perpetuates a legal fiction that public motorized uses (snowmobile crossings of the Scenic Cedar and Hudson Rivers, motors located well within Wild River corridors) pre-dated and continued after the Wild, Scenic and Recreational Rivers Act/ the State Land Master Plan, and that “therefore continued motor vehicle use in both Wild and Scenic River corridors and on bridges crossing them is authorized by statute and regulation” (page 23, and others).

Yet, elsewhere in the UMP (page 1) the document contradicts itself by admitting the truth: “the general public has not had unfettered use of portions of the Complex Area in over one hundred years.”

DEC first published its grandfathering justification in the first Essex Chain UMP draft in June of 2014. Immediately, individuals and organizations challenged the department to present actual evidence in the next Draft that the general public had been allowed – freely and without landowner permission – to drive around the Chain Lakes area during Finch’s ownership. These are the roads which fall within the Wild and Scenic River corridors in the Essex Chain Primitive Area.  We were assured that DEC would ultimately produce that evidence. In three subsequent drafts, including the Final UMP just approved by APA on an 8-2 vote, DEC never did produce this evidence.

Former APA Member Peter Paine, an author of the State Land Master Plan and the Rivers Act, has told me in private conversation that the section in the Rivers Act which states that existing uses may continue refers explicitly to lands and river corridors in private ownership, not publicly-owned Forest Preserve.

In fact, the evidence that there was no public access to these roads is found in the APA permit to build the Polaris Bridge, which was issued to Finch, Pruyn in 1992 (Permit #91-200). Finding of Fact 6 states “Other than access via the [Hudson] river, the site is not accessible to the general public... The proposed crossing was last used by the applicant in approximately 1957.”

Despite the obvious language, DEC’s representative on the APA Board this week said “I have full confidence in the legal analysis – we fully comply with the law”.  Seven other APA members were satisfied with that explanation.

But Member Lussi was not buying it. “I have consistently asked for a legally defensible solution to public use of the Polaris Bridge. Counsel has done their best to create such a position, but I can’t agree with it. I will vote against.”

Member Booth, who chairs the State Land Committee, again tried to convince more of his colleagues that their readiness to simply take DEC’s word for it would land the Agency in trouble. By justifying public motorized use because such uses was “grandfathered” by prior private use “would set a dangerous precedent,” he said.  “I am dismayed that DEC has persisted on this, because it will come back to haunt future APAs.”

What did Member Booth mean by that? DEC’s representative said the Essex Chain Primitive Area constituted a unique set of circumstances that could not be replicated elsewhere. Booth clearly knows otherwise, and so does the DEC.

There are a variety of potential problems if DEC continues to misuse the “grandfathered” principle. One obvious test can be found on the nearby Boreas Ponds tract, still in private ownership but expected to become Forest Preserve soon.  A former logging road almost circumnavigates the Boreas Ponds, including along the High Peaks Wilderness boundary. Former Finch employees and lessees probably used these roads too.

Will DEC again argue that motorized uses predated the Rivers Act and Master Plan and can legally continue?

Will DEC destroy the wilderness potential of the Boreas Ponds with this legal fiction?

As APA Member Richard Booth has made clear, DEC must amend the statute and/or the regulations if it wants legal, new, and expanded public motorized uses and bridge crossings in Wild and Scenic River corridors,  or anywhere else in the Forest Preserve.

 


David Gibson

Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for nearly 25 years, much of that time as Executive Director of the Association for the Protection of the Adirondacks and then as first Executive Director of Protect the Adirondacks.

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 a partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.




56 Responses

  1. Paul says:

    Dave, does it say in the Act or the UMP that the previous use needs to be “public”? If it doesn’t than 8 people are correct and 2 are wrong. Lots of roads that the DEC has designated for public use after acquisition of state land are roads that had no legal public use prior to the purchase – they were private roads used for things like timber extraction of camp access etc. Then the DEC designated them for public use.

    • Ryan Finnigan says:

      So do the you roads you mention also contain a bridge over waters classified under the Wild, Scenic, and Recreational Rivers Act? Yes or no.

    • Tim (another one) says:

      I think the 2 who oppose it are the only 2 on the board who attended law school. Coincidence?

  2. Paul says:

    “Former APA Member Peter Paine, an author of the State Land Master Plan and the Rivers Act, has told me in private conversation that the section in the Rivers Act which states that existing uses may continue refers explicitly to lands and river corridors in private ownership, not publicly-owned Forest Preserve.”

    Does it say that specifically in the SLMP or the Act? Don’t these laws cover the land whether public or private? It seems like either the use is allowed to be grandfathered (as the DEC and APA seems to interpret it) or it isn’t. The fact that it was public or private use, or both, seems irrelevant unless specifically stated in the law.

  3. Scott says:

    I thought the SLMP was promulgated under the 1972 APA Act, and I thought motorized use under the SLMP depended on forest preserve land classification, and that meant motorized uses can only occur in intensive use or wild forest designated areas. Doesn’t the whole argument on motorized use for new acquisitions therefore depend on the land classification ? I thought under the SLMP an area with major roads cannot be classified as wilderness, and that those areas with major roads would therefore have to be primitive or wildforest. Wouldn’t this SLMP requirement result in the kind of ‘grandfathering’? Is this issue even more clouded because many of our wilderness areas have roads ?

    • Paul says:

      I took a look at both laws. The ASLMP and the WSRR both simply state that in Wild river areas (in question here) that “No new” structures are allowed. It seems pretty clear that a preexisting structure whether on public or private land is perfectly legal. If the law was to limit this use it would not have the word “new” in it.

  4. Boreas says:

    Excuse my ignorance, but is there a comparison between this issue and the Low’s Lake floatplane prohibition a few years back?

  5. It is my understanding that the ‘grandfathering’ is being used to justify the use of the Polaris Bridge and existing roads for a proposed snowmobile trail. But since the ‘historical’ private use included logging trucks and other motor vehicles, wouldn’t that same argument also include legitimate use by virtually any kind of motor vehicle capable of traversing the road? Does DEC seriously mean to open this area to 4WD and ATV traffic as well as snowmobiles?

    • drdirt says:

      perhaps it is time to reclassify snowmobiles as non-motorized vehicles .,., seeing as they never touch the earth, like an airplane, we can consider them passing ‘over’, rather than ‘through’ the wilderness!!! ARGUMENT OVER.

      • That is distorted logic since they clearly do have motors and the bit about not touching the earth? By that logic hikers don’t touch the earth unless they hiker barefoot. Surely you can come up with a more reasoned argument than that.

    • Paul says:

      James, I think the agency CAN allow particular uses to remain. They are not required to allow all of them.

  6. Todd Eastman says:

    The Governor thinks snowmobiling is cool…

    … the DEC listens to the Governor and his political hacks…

    • Keith Gorgas says:

      True on both counts, Pay to Play Cuomo. Snowmobile Lobby exerts a lot of influence for a sport that caters to .06 of NY population and gets well over $4 million a year in State subsidy.

  7. Frank Krueger says:

    It seems like ever since the governor took a snow mobile ride several years ago and obviously enjoyed the thrill, DEC and APA are determined to open up the wilderness to snow mobiles. I would love to take the governor on a hike or cross country ski tour and show him how beautiful our mountains are and the fun one can have without gasoline and maybe DEC would start giving some attention to the sad shape of our hiking and ski trails. And to do so would not require any legal fictions.

    • Scott says:

      Is allowing public motorized use on existing roads when formerly private timber company lands become forest preserve wild forest really impacting much ?

      • Ryan Finnigan says:

        Yes. Given enough time, nature can restore an area previously abused by man. But first we must stop abusing the land to allow nature to do it’s thing.

  8. Curt Austin says:

    I’m vaguely dissatisfied by arguments in legal gray areas. I mean, think of all the five-to-four decisions by the US Supreme Court. It’s simply not going to persuade anyone who, like me, are actually concerned with whether snowmobiles are going to do serious harm, a little harm, or no harm.

    There’s a lot of gray in the definition of “harm”, too. Will wildlife suffered significantly? Be startled or annoyed? Will I be significantly startled or annoyed if I’m nearby? Is it merely an aesthetic issue? Does it matter if anyone sees it, or is it a violation regardless? Should I care whether a diner can stay open in Newcomb from snowmobiler business? (I find myself caring most about that; I have little skin in this game otherwise.)

    Consider all those things, decide what’s best, and if the SLMP clearly dictates something contrary, it’s wrong! Change it. If it offers a gray zone wide enough to make reasonable decisions, good. There will not be unanimity to “reasonable”, except among reasonable people.

  9. ADKerDon says:

    The state land master plan and the forest preserve need to be abolished! They are outdated and have turned into discriminatory, prejudice, documents that exclude the majority of the people from using state lands. Booth, Lussi, Paine, all push these discriminatory policies to lock out our disabled veterans, wounded warriors, elderly, handicapped, and others. They would keep this the exclusive playground of the hikers, banning all others. Abolish the state land master plan, forest preserve, APA, and turn control of all state lands over to the local government review board!

    • Todd Eastman says:

      Now there’s some original thinking…

      … NOT!

    • You miss the point that the intention of the Forest Preserve is Preservation. Yes, preserving something does limit or preclude other options but that does not mean that the intent is to discriminate against those who support the other options. It is simply that the two are incompatible. The Forever Wild Amendment was adopted because of past abuses and it has (more or less) succeeeded in preserving the largest wilderness area east of the Mississippi River. That is not something that should be abandoned.

      • Paul says:

        James, Nothing is being abandoned. This deal includes the addition of thousands of acres of Wilderness land to the FP. The FP is far larger now then it was when it was created by the NYS constitution. People here make it sound like this is taking away something from the FP.

    • Boreas says:

      Perhaps if more private land were open to the public, we wouldn’t need to rely so much on the Preserve for our recreation.

  10. Dave Gibson says:

    All questions and comments are making good points and focusing on the question why does this matter? I perhaps failed to make my answer clear. It matters because in several key areas of the Essex Chain of Lakes Unit Management Plan, over the course of 2 years, DEC has failed to state current law and regulation accurately and in the case of its own law ECL article 15 (Administration of the Wild, Scenic and Recreational Rivers) the agency seems intent on misinterpreting the law. That an agency in charge of our public lands should evade the law ought to concern us all. As Adirondack Wild stated at the Indian Lake public hearing in July, DEC – on behalf of the public – can do what it wants to do here (snowmobile crossings of the Scenic Cedar and Hudson Rivers, duplicative snowmobile corridors connecting the same towns, bicycling in Primitive areas ) but it should not be allowed to do them by sanctioning a legal fiction, which is what the APA just did. It should, instead, do it by addressing the law forthrightly and proposing changes subject to public notice and hearings.

    • Scott says:

      I fully agree that no government can do whatever it wants, even if it seems like a good idea. The government does not have that blanket authority to do whatever it wants. And no “postage-stamp” spot zoning to do whatever it wants either.

    • Paul says:

      Dave, does the law explicitly state that the grandfathering only applies to a preexisting use that was open to the public? If it doesn’t than no one is evading anything. In fact they are within the bounds of the law something that their legal counsel has probably advised them of. I don’t expect they would make these moves without advice from their counsel.

      • Bruce says:

        Paul,

        Has the area been classified as Wilderness yet? If it has, then according to the SLMP, existing man made structures have to be eventually removed, but there is no timetable in the Master Plan for that removal. If it is classified anything but Wilderness, then it seems to me pre-existing roads can remain and be put to whatever use the state and DEC wants them to be, if only for “official motorized use only” and gated.

        According to how I read the SLMP, pre-existing roads on formerly private land are technically open to the public as soon as the state takes ownership. I didn’t see any specifics about if the public was previously allowed or not.

        I think we should wait until a classification is made, then decide what fits or doesn’t fit. Of course the environmental lobby wants the Essex Chain to be Wilderness, and other user groups want it opened up to one degree or another. This argument over interpretation is getting tedious, and serves no purpose other than delay getting on with the program.

        As far as the scenic river designation is concerned, that’s not really connected to the issue of land classification, because Wild and Scenic Rivers can be next to private land and according to the SLMP are overlays on top of the land classification, not necessarily a part of it.

    • Bruce says:

      Dave,

      It’s easy to say laws are being evaded and twisted without showing exactly how by referencing the law itself and demonstrating exactly where the issue lies. I read the Master Plan several times, and nowhere did I see where state acquired private land SHALL be classified as Wilderness. This is an issue of interpretation rather than an issue of fact, and the majority of board members think so too.

      The scenic river designation is entirely separate from the land classification it runs through. Wild and scenic river designations are overlays on top of the underlying land classification, and this is proven by the fact a scenic river can run adjacent to private land, as this case demonstrates.

  11. Tim-Brunswick says:

    I sincerely hope that the APA’s supposed “Fiction” does indeed become “Fact”. There’s enough ADK “wilderness” areas and now it’s time to start opening up the Adirondack Forest Lands and allow more mobile access by folks who can’t hike and/or paddle for miles upon miles. Acquisition by the State of previously logged over tracts by Paper Company’s is the perfect opportunity to do this.

    These lands have been driven upon by trucks, cars and OMG…”ATV’s” for years and years…..works for me.

    Per the “Godfather’s” famous quote (“Keep your friends close, but keep your enemies closer”) I watch/read the slanted/biased articles in the ADK. Almanac and shake my head over the fanatical rants by their favorite pen pals……….

  12. audrey hyson says:

    Thank you to Art Lussi and Richard Booth for doing the right thing.

  13. Charlie S says:

    Ryan Finnigan says: “Given enough time, nature can restore an area previously abused by man. But first we must stop abusing the land to allow nature to do it’s thing.

    So true! The same as saying, ‘The only way to recover an ecosystem suffering from ill health is to connect it to more of itself. But if we don’t have the itself to connect it to it can never recover.’ Tell that to a capitalist politico!

  14. Charlie S says:

    Curt Austin says reference ‘whether snowmobiles are going to do serious harm, a little harm, or no harm.’
    “Will wildlife suffer significantly? Be startled or annoyed? Will I be significantly startled or annoyed if I’m nearby?”

    Wildlife generally loses out when man encroaches upon it’s turf Curt. Whenever man (he or she) shows up it’s a sure bet wildlife will be startled and or annoyed! Unless he or she walks lightly or has a Thoreauvian spirit which is not as common as those whose spirits are ruffled in some degree or another.

    Would you be significantly startled or annoyed if a snowmobile suddenly came upon your ears?
    I most certainly would be and it’s a sure bet Bambi would too.

  15. Charlie S says:

    ADKerDon says: “Abolish the state land master plan, forest preserve, APA, and turn control of all state lands over to the local government review board! ”

    A nazi!

  16. Charlie S says:

    James Bullard says: “The Forever Wild Amendment was adopted because of past abuses and it has (more or less) succeeded in preserving the largest wilderness area east of the Mississippi River. That is not something that should be abandoned.”

    Tell that to someone whose whole life evolves around the impact of sound waves,the desire for pandemonium always at their ears,the everlasting lust for clunks or clangs or the thundering of motors. Some people just cannot function unless noise is seeping through. I have known many of them over my years,a cerebral dysfunction possessing them. < Society in general. Not good!

  17. Charlie S says:

    Boreas says:”Perhaps if more private land were open to the public, we wouldn’t need to rely so much on the Preserve for our recreation.”

    You mean motorized recreation don’t you Boreas?

  18. Charlie S says:

    Dave Gibson says: “That an agency in charge of our public lands should evade the law ought to concern us all.”

    Yesiree!

  19. Charlie S says:

    Scott says: “I fully agree that no government can do whatever it wants, even if it seems like a good idea.”

    But they ‘do’ whatever they want Scott generally. If only more people were awake!

  20. Charlie S says:

    Boreas says: ” IMO, most governments do what they want until the voters stop them.”

    What voters. The 45% only that vote?

  21. Charlie S says:

    Tim Brunswick says: “I watch/read the slanted/biased articles in the ADK. Almanac and shake my head over the fanatical rants by their favorite pen pals……….”

    You contribute also Tim……and you’re still allowed to do so even with your conservative arrogance. If things were vice versa and this was FOX and you were a fan of free-thinkers you’d a been disappeared from this venue a long time ago.

  22. Mike says:

    The articles here in the ADK are extremely slanted and biased. Overwhelmingly so. It is nice though that Charlie here acknowledges that others with a different view are still allowed to contribute. Would have been much nicer without the gratuitous ad hominem attack though.

    To the larger point of the thread….. I agree with the majority of the APA vote in this instance. But imagine if the vote was 8-2 the other way, how the majority would have been praised and the 2 dissenters vilified, instead of the other way around.

    • joe says:

      Right Mike. This is a blog, not journalism in any classic sense. So you have to be aware of that when reading it.

  23. Tom Payne says:

    Boy aren’t we all law and order this week about roads in the Park. But the Environmental Lobby has no problem colluding with the NYSDEC and the APA illegally taking roads in the past. Guess law only pertains to certain folks.

    • John Warren John Warren says:

      How about you meet me in a public debate about your nonsense claims?

      • Tom Payne says:

        Gee John, the Environmental Lobby, NYSDEC and the APA have lost in court on the illegally closed roads in the park. What’s left to talk about. I guess another court date after the former NYSDEC Commissioner tried to sweep it under the rug. Albany style.

  24. Charlie s says:

    Boreas says: Actually, no. I was thinking about hunting, fishing, hiking, etc.

    I misread you I apologize for being an antagonist. I was in one of those moods.

  25. Charlie s says:

    Boreas says:If they don’t vote, they lose their voice.

    The powers that be would be happy with that I am certain Boreas.

  26. Charlie s says:

    Mike says: “The articles here in the ADK are extremely slanted and biased.”

    Slanted and biased towards what Mike? A liberal view? How horrible is that really?