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.