Tuesday, November 10, 2015

Bauer: A Poor Public Process For The Essex Chain

Essex ChainThe Adirondack Park Agency (APA) will take up the question of the conformance of the Essex Chain Complex Unit Management Plan (ECCUMP) with the Adirondack Park State Land Master Plan (APSLMP) on November 12th.

This will be the APA’s “first read,” having completed on October 16th its public hearing on the final draft ECCUMP submitted by the Department of Environmental Conservation (DEC). The DEC held its own public hearing in July on this UMP. The APA is expected to approve the ECCUMP in December.

The bulk of these lands were part of the Nature Conservancy’s purchase of former Finch, Pruyn and Company lands. This plan has been in development since these lands received formal classification by the APA at the end of 2013. The DEC released a draft UMP in 2014, which it later withdrew.

There are many problems with the ECCUMP. The ECCUMP is notable for its poor management of the public review process by the APA and DEC, the way that it violates a number of major longstanding Forest Preserve management policies, and the way it violates major state laws, such as the Wild, Scenic and Recreational Rivers Act. This article will focus only on the poor public process to date.

Good public process was undermined from the start. The APA and DEC have a Memorandum of Understanding (MOU) for the implementation of the APSLMP (updated in 2010). The purpose of this MOU is to detail a publicly accountable process for the development and approval of UMPs for the Forest Preserve. These are public lands, after all, so it stands to reason that there should be a publicly accountable process for developing management actions.

Section IV of the MOU details adoption of UMPs. The MOU enumerates steps for ample consultation between APA and DEC staff, which the MOU states are “exempt from the Freedom of Information Law (FOIL).” Though the public never gets access to these materials, the MOU process is clear that the DEC should develop UMPs with regular consultation by the APA to get constant informal and formal feedback on management issues and compliance with the APSLMP.

The MOU states that prior to release of a “Public Draft” UMP by the DEC, APA staff shall receive an “Initial Draft.” This draft is supposed to be a fully developed UMP with all management alternatives fully developed and assessed as well as “inventories” and various “assessments” included in completed UMPs.

An Initial Draft is an important step because within 45 days of receipt of it, the APA senior staff is supposed to provide its response on APSLMP conformance to the DEC. The DEC is then supposed to “advise the Agency in writing of its response to Agency staff comments on the initial draft UMP.” The MOU then states: “Prior to release of the Public Draft for public review, Agency staff will provide the Department with a written evaluation of APSLMP conformance issues in the proposed Public Draft. These interagency communications are an essential part of the deliberative process ordinarily exempt from FOIL.”

None of this happened with the ECCUMP. The APA states that it provided feedback in person because the issues were too complex to be written. DEC never sent any written comments back to the APA. The APA never sent any written comments to the DEC.

At the June APA meeting, the DEC passed over the “initial draft” and consultation steps and went straight to the Public Draft phase. At that meeting, APA Commissioner Art Lussi complained about the failure of the DEC to follow established process. DEC’s Rob Davies apologized and said DEC “did the best we could” and then marched ahead.

Lussi stated: “I accept your apology for your throwing these two plans on our laps with no ability to review them in advance, but I cannot not comment about it because I know what’s going to happen. We’re going to have these public meetings and then get these plans a few months from now and have to vote on them and it doesn’t allow for us to give you input. I feel like as Commissioners this was our opportunity today to comment on your thoughtful work and I can’t do that.”

The APA Chairwoman, Lanni Ulrich, added “Normally we would give feedback to the Department before it went out to public hearing, but the timing was very unfortunate so we’ll deal with it.”

No other APA Commissioners picked up on Lussi’s points and there’s nothing in the public record that shows that the APA ever dealt with DEC’s subversion of the MOU process for adopting a UMP.

While Lussi attacked flaws in the process, APA Commissioner Dick Booth attacked the substance. Booth chided the DEC for a sloppy UMP. Booth stated that as Chair of the State Lands Committee he had managed to get an early draft copy just days before the APA meeting. He said the DEC had failed to fully investigate alternatives to its preferred plan to use the Polaris Bridge and cut a redundant new snowmobile trail through the Vanderwhacker Mountain Wild Forest area. He said discussions of alternatives in the plan “were not real discussions.” He said DEC “avoided” existing policies.

Booth argued that DEC’s claims about historic public use of the Polaris Bridge were “simply not credible.” He added “There are facts that simply cannot be wished away.” He said “DEC has tried to equate roadways that were open to leasees with roadways that are open to the public. That is not a fair interpretation of the APSLMP.” He challenged the legality of the DEC’s intent to retain a number of roads in the Essex Chain Primitive Area, stating, “Creating a fiction about what DEC can do as far as administrative roads is not the way to proceed.” He said that snowmobiling is simply not allowed in Scenic River corridors under the Wild, Scenic and Recreational Rivers Act and regulations. DEC demurred in engaging or answering Booth’s questions.

When DEC returned to the APA with its final UMP in September, after completing its public hearing in July, APA Commissioner Dick Booth had more questions ready, believing this would be the right time to probe problems in the plan at the point before the APA held its public hearing. The videotape of the meeting records interesting exchanges not between Booth and the DEC, but between Booth and APA leaders who acted as ardent DEC apologists. APA Chairwoman Lani Ulrich interrupted or cut Booth off more than a dozen times, and APA Counsel James Townsend jumped in four times. APA staff chimed in that they had not written about APSLMP conformance, despite the MOU requirement that they should have done so months beforehand.

Despite efforts to interfere with his questioning, Booth persisted and took aim at the DEC for failing to state in a number of places in the ECCUMP that various actions it proposed did not comply with the APSLMP. He pressed DEC to acknowledge that mountainbikes are prohibited in Primitive areas, that motor vehicles are banned from “trails,” and that the DEC’s preferred new snowmobile trail through the Vanderwhacker Mountain Wild Forest is duplicative and redundant. He further argued that management actions in the UMP that required an amendment to the APSLMP could not be approved. APA Chairwoman Lani Ulrich told Booth that DEC could answer these questions “in November.”

Twenty minutes into Booth’s questioning, Ulrich reprimanded Booth not to belabor his points: “Your point is made, now lets move on.” She also stated “This is not a cross examination and it’s very uncomfortable.” She told Booth “I’m not interested in a cross examination. That’s not our job.” At one point she jumped in and told Booth “That’s enough.”

Perhaps important questions will be answered in November and December when the APA takes up the final ECCUMP, but APA leaders did all they could to make sure that questions were not answered in June or September, at a point before either the DEC or APA held public hearings.

Another procedural problem is that DEC has already opened the Essex Chain Lakes Primitive Area for mountainbiking despite the SLMP requirement that prohibits mountainbiking in such areas. The top guideline for Primitive Areas is that they be managed as close to Wilderness as possible. DEC jumped the gun. Moreover, the ECCUMP proposes that APA approve management actions that will require that the APSLMP be amended. This puts the cart before the horse. In the past 40 years we have not seen actions approved in a UMP that require an APSLMP amendment. All actions in a Ump should conform with the APSLMP. If APSLMP amendment is needed, it should precede approval of a UMP.

In July, the DEC held a public hearing on its official draft of the ECCUMP. The most controversial issue in this UMP is the decision by the DEC to retain the Polaris Bridge over the Hudson River for a major new snowmobile trail to connect Indian Lake and Minerva. Not only does this proposal require retaining the bridge, which violates the Wild, Scenic and Recreational Rivers Act, but also necessitates cutting a new class II community connector snowmobile trail through a trailless part of the Vanderwhacker Wild Forest.

An analysis of the public comments, through a Freedom of Information request, found that after removing duplicate letters or those from people who submitted multiple letters, there were around 1600 total comments from individuals and organizations, totaling over 2,000 pages. Around 1400 comments, or 87%, opposed the new snowmobile trail through the Vanderwhacker Mountain Wild Forest trail and opposed retention of the Polaris Bridge. Around 150 comments supported these actions, just 10%. The remaining letters did not address this issue.

Was the DEC swayed by such an overwhelming showing of opposition? Not at all. Its final ECCUMP, submitted to the APA in September, retained as its centerpiece the development of the new snowmobile trail through the Vanderwhacker Mountain Wild Forest and retention of the Polaris Bridge.

The Essex Chain Complex includes some of the most beautiful and ecologically complex natural resource areas in the Adirondack Park. Yet, the process for developing a management plan has been deeply flawed as responsible state agencies have openly violated their duties in the public review process. Rather than embracing a serious debate about either the process or the substance of this UMP, the APA has moved consistently to squash debate, acting as an apologist for the DEC.

If taking short cuts and squashing public debate were not troublesome enough, these state agencies have also showed a callous disregard for public concerns. Over 87% of public commenters opposed a new snowmobile trail through the Vanderwhacker Wild Forest Area and retention of the Polaris Bridge, yet the DEC refused to budge with its plans.

The APA closed its public hearing on October 16th. It’s review of Public Comments is startling for how few its says it received (154) and for its refrain that it “defers” to DEC on all the controversial issues. The APA “Staff Memo” fails to wrestle in any meaningful way with any of the major issues raised dealing with APSLMP conformance or compliance with state law.

If serious questions about the ECCUMP are to be asked and answered, this will have to start on November 12th at the APA’s monthly meeting. When APA Commissioner Dick Booth tried to ask serious questions in June and September, he was interrupted and ultimately shut down by APA leaders. An open and honest Q & A between the APA and DEC would have been very helpful to the public in advance of the public hearings, rather than after.

The public process administered for the ECCUMP has been exceedingly poor, rivaled only by the many ways that this UMP violates existing laws, policies and regulations, which are the subjects of the new two parts.


Peter Bauer

Peter Bauer is the Executive Director of Protect the Adirondacks.

He has been working in various capacities on Adirondack Park environmental issues since the mid-1980s, including stints as the Executive Director of the Residents’ Committee to Protect the Adirondacks and FUND for Lake George as well as on the staff of the Commission on the Adirondacks in the Twenty-First Century and Adirondack Life Magazine. He served as Chair of the Town of Lake George Zoning Board of Appeals and has served on numerous advisory boards for management of the Adirondack Park and Forest Preserve.

He lives in Blue Mountain Lake with his wife and two children and enjoys a wide variety of outdoor recreational activities throughout the Adirondacks.




10 Responses

  1. Bill Ingersoll Bill Ingersoll says:

    Great analysis, Peter. Unfortunately, I think all the “ECCUMPs” and “MOUs” are going to turn off many potential readers, but I think it’s an important point that the state’s management actions in the Essex Chain region runs counter to public opinion.

    Last week a state employee contacted me directly regarding a public meeting being held in Indian Lake regarding yet another facet of the state’s management of this area, in this case the reduction of the Cedar River wild river corridor to accommodate snowmobile usage. This was my response:

    “Although I remain deeply interested in state land issues, it has become clear that public input is irrelevant these days. The state has preconceived ideas about what it intends to do with the central Adirondacks, and it is obvious that legal interpretations, regulations, and master plans are all being brought into conformity with the politically preferred recreational program, rather than vice versa as intended by the authors of those laws, regulations, and master plans. As an individual member of the public, it is hard to see a role for myself in this new way of handling state land management.

    “I am reading this document (http://apa.ny.gov/Mailing/2015/11/StateLand/20151103-EssexUMP-ResponseToComments.pdf) as I write this email. While I am heartened to see that there is plenty of public opposition to motorized usage in the Essex Chain region, I can’t help but notice that the APA’s ‘responses’ to the various public comments mostly read as either being dismissive (using circular arguments to justify unpopular actions by citing recent APA decisions, without actually addressing the concern being expressed) or as abdications of authority (‘the APSLMP is silent on this issue; that is DEC’s decision, we can’t change it; although a majority of people dislike this proposal, we are approving it anyway’).

    “I would think that if the state is seeing a significant number of people opposed to certain proposed actions (such as the 87% opposition to the Polaris Bridge) the state would see this as an indication that its actions are unpopular or misguided. Instead, the state is using this document as an opportunity to inform the public that public opinion is wrong.

    “I find this to be a disincentive for further public involvement, and so I probably would not have attended the meeting in Indian Lake even if I could have gone.”

    The state (i.e. DEC and APA) have been proud of the number of so-called “stakeholders” they have engaged in this UMP process. But these “stakeholders” are largely people who have at best a theoretical interest in these lands, and not the people who actually intend to visit and explore the area. The wrong “stakeholders” have been sitting at the table, and DEC has over-promised the recreation potential of the Essex Chain. For its part, APA has abdicated its responsibility to serve as DEC’s checks and balances. Anyone who wishes to leave a wild legacy for future generations should be voicing their vote of no confidence in the way both agencies have managed this part of the Forest Preserve so far.

    Unfortunately we’re on the cusp of going through this goat rodeo once more with the Boreas Ponds tract. This is why I say we should shoot for the moon, because you know what they say if you happen to miss….

    By the way, I watched the June APA meeting on the live video feed, and I’ve read the minutes of all the subsequent committee hearings. Someone should be pinning a medal on Dick Booth.

  2. Todd Eastman says:

    Time to go to court…

    … and make the DEC squeal and the APA nervous!

  3. Tim-Brunswick says:

    And once again it’s Peter Bauer ranting about this or that or whatever occurs to him during his crusade on behalf of the trees and rocks, etc. etc.

    (OOPs….guess I’ll incur the wrath of all of his admirers by daring to speak out against this fanatical approach by Protect the Adirondacks…..whatever….)

    The people who for years have already “visited and explore” these areas have been or soon will be displaced from their camps, lodges and “user friendly” environments by the never ending quest for more “State Land”. Locking these properties up with a “Wilderness” classification limits “visiting” and “exploring” to physically fit people between teen years and middle adult hood.

    Certainly the North Country economy has been dramatically affected by the loss of these visiting Families, friends to their camps in these areas. Just take a ride through the Hamlet of Indian Lake…..No more Market, half of the businesses anyway are up for sale and finding a restaurant open more than four out of seven days a week is difficult.

    The rest of us who still love the outdoors/forest lands, but have reached our Senior Years are locked out by creation of “Wilderness” classifications and limited access. Thankfully some of the Folks in State Government are finally listening and taking a more permissive approach!

  4. Paul says:

    This all looks like alphabet soup to me.

  5. Thanks for such a good analysis, Peter. What has happened with the governmental process in this case seems to have gone completely counter to the stated ideals of “open government” and “governmental transparency” by all governmental agencies.
    Readers may not be aware that any citizen can sue any governmental agency for not following their own rules and procedures. This is known as an “Article 78 Proceeding.” Even the threat of an Article 78 Proceeding- the threat of pending litigation- is often enough to get an agency to take a second look at what they are doing, and often to correct the situation in the future. Peter, have you thought about possibly filing an Article 78?

    • Paul says:

      In order to get such a suit into court you have to have cause. And just because someone says the laws have been broken does not make it so. This process is way more transparent than many things going on within state agencies. If it wasn’t we wouldn’t even know what they were doing and be having this conversation. Half of what is here is about things that went on at public hearings or is related to public comment all totally open to the public.

      • Bruce says:

        Paul,

        If a lack of public input is in fact the case, I wonder if PtA would have said anything about it if the state went ahead with a Wilderness designation and started removing the human presence?

        I’ve seen a number of issues with possible or real environmental ramifications where I live, and the environmentalists always start complaining about “not enough public input” when it looks like they’re losing the case, hoping to keep it going long enough for people to get tired of it and acquiesce. I quit supporting these groups because some of the methods they use are sometimes hypocritical or downright unethical.

        We had a recent case where a group sent out surveys to local businesses. If the respondent sent back the survey, no matter how they answered, it was announced to the media that the named business supported the proposal. Many did not, and the noise the group made backpedaling was deafening.

        On the other side of the coin, I wonder how many of his Protect the Adirondacks members will be enjoying the new snowmobile trail, with barely (if any) thought about all the environmental damage they’re supposedly doing?

    • Dave says:

      An article 78 would most likely prove futile, just look at the ACR process as proof.

  6. chris says:

    While I appreciate the thorough analysis, I just don’t have time to read it. TL/DR… It sounds pretty bad. Any chance that in the future you could post a bullet point summary as a companion to the article?

    Thank you for all your hard efforts on behalf of the laws and the future, as futile it seems some days!

  7. adkcamp says:

    Agree, the message is getting lost in dense detail. This is important work, an important message and a valuable cause – this article would be so much more valuable and accessible if the writing style were more concise. The point is to educate and share information – the goal is to reach as wide an audience as possible – the skill is to share the information effectively. Peter, thanks for your tireless advocacy.