Thursday, December 17, 2015

McCulley Sues DEC Again Over Old Mountain Road

mcculley-with-dogThirteen years after he was first ticketed for driving a snowmobile on Old Mountain Road, Jim McCulley is still fighting the state Department of Environmental Conservation.

In his latest legal action, McCulley claims DEC Commissioner Joseph Martens violated his civil rights when Martens overturned earlier decisions in the case and ruled that Old Mountain Road is part of the Forest Preserve, not a town road.

“It’s like beating your head against the wall, over and over. Why do they keep coming back?” said Lake Placid attorney Matt Norfolk, who represents McCulley.

McCulley has said he is less concerned with opening Old Mountain Road to motorized use than with defending the rights of local towns. “It’s about the state taking things that don’t belong to them,” he told the Adirondack Explorer earlier this year. “It’s an abuse of power.”

Old Mountain Road runs through the Sentinel Range Wilderness where all motorized use is prohibited. It starts in North Elba and ends in Keene and is part of the long-distance Jackrabbit Ski Trail.

Just before he left office in July, Martens ruled that the road had long been abandoned by the local towns and so DEC had the authority to close it to motor vehicles. The ruling was at odds with decisions of an earlier commissioner, a DEC administrative law judge, and an Essex County Court judge.

McCulley’s lawsuit in State Supreme Court, which was filed in November, seeks a declaration that Old Mountain Road was never legally abandoned and remains a town road. In a separate action, the town of North Elba also is challenging the Martens ruling.

North Elba Supervisor Roby Politi said the town has owned the right of way since 1851. “We have no intention of allowing the state to bully the town into giving up our rights,” he said.

DEC refused to comment on the litigation.

The saga began in March 2003 when McCulley, who is president of the Lake Placid Snowmobile Club, was ticketed for driving a snowmobile on the old woods road. A local judge convicted him, but McCulley appealed to County Court and won.

In May 2005, shortly after his victory, McCulley was challenged by a forest ranger to drive his pickup truck on the road, according to the lawsuit. He did so and was ticketed again. DEC later withdrew the charge and switched forums, filing a complaint with an administrative law judge within the department.

A month later, McCulley filed a civil-rights suit in U.S. District Court. This suit was put on hold pending the outcome of DEC’s administrative proceeding, though the federal court remarked that “there exists no reasonable likelihood that DEC will ultimately prevail in the state proceeding.”

In 2009, the DEC judge did indeed rule in McCulley’s favor, and DEC Commissioner Pete Grannis accepted his recommendation that the charge be dismissed. McCulley later settled his federal lawsuit for $58,000 to cover legal fees and other costs.

In December 2010, Acting Commissioner Peter Iwanowicz agreed to entertain legal arguments on whether the ruling should be clarified. DEC’s staff and other interested parties, including the Adirondack Council, were uncertain how the ruling would affect other old woods roads in the Adirondack Park.

“We were worried that other town roads that are now trails in the Forest Preserve might be seen instead as roads again and be reopened to motorized traffic,” said John Sheehan, a spokesman for the council.

This past July 22, Martens overruled Grannis’s finding that Old Mountain Road remained a town road. One argument advanced by Martens was that local towns did not object when the road was closed under the State Land Master Plan, which prohibits motorized use in Wilderness Areas. Furthermore, Martens said that under state law, a road is considered abandoned if it has not been used as a highway for six years or longer. Old Mountain Road, he said, fit that criterion. Nevertheless, he said the charge against McCulley should not be reinstated.

Norfolk contends both that Iwanowicz had no authority to reopen the matter and that Martens misinterpreted the law.

After the Grannis decision in 2009, the town of Keene authorized local residents to drive all-terrain vehicles on Old Mountain Road during hunting season, but few took advantage of the opportunity. The primary users remain hikers and cross-country skiers. Politi said North Elba has an ordinance on the books that allows snowmobiling on its portion of the road.

Photo by Susan Bibeau: Jim McCulley on the Old Mountain Road.

 

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Phil Brown

Phil Brown is the former Editor of Adirondack Explorer, the regional bimonthly with a focus on outdoor recreation and environmental issues, the same topics he writes about here at Adirondack Almanack.

Phil is also an energetic outdoorsman whose job and personal interests often find him hiking, canoeing, rock climbing, trail running, and backcountry skiing.

He is the author of Adirondack Paddling: 60 Great Flatwater Adventures, which he co-published with the Adirondack Mountain Club, and the editor of Bob Marshall in the Adirondacks, an anthology of Marshall’s writings.

Visit Lost Pond Press for more information.




26 Responses

  1. ADKerDon says:

    Martens continued to show his hatred and contempt for Adirondackers and their history with this decision. This is the road our anti-slavery hero John Brown’s body used to travel to his home. Cuomo, Martens, and other eco-freaks just want to destroy everything in the Adirondacks; our history, culture, life style, jobs, and land ownership. They only endorse genocide and extinction of all Adirondackers, and our history, everything our ancestors accomplished.

    • Keith Gorgas says:

      Genocide seems a little strong of a term; don’t know as I’d go that far, but no one can doubt that there’s a concerted effort to destroy the culture, history, and economics of the Adirondacks

      • Scott van Laer scottvanlaer says:

        “…no one can doubt that there’s a concerted effort to destroy the culture, history, and economics of the Adirondacks.” I think many people express considerable doubt to your assertion. Do you really believe that or are you just making a grandiose statement?

    • AG says:

      Yeah? Are you from one of the native American tribes that existed there before the Europeans got there? If not – then your words are hypocritical.

  2. Tom Payne says:

    The NYSDEC and the APA along with the Environmental Lobby willing broke the law. Now we see the NYSDEC hires the legal counsel from the Adirondack Council for this case. More dark and dirty in Albany.

  3. Rick Fenton says:

    A common misunderstanding of Highway Law is that once a Town establishes a highway, it always remains a highway until the Town acts to discontinue it. Actually, in the case of the Old Mountain Road, neither the Town nor the State has discretion. It’s not that the State is deciding to take something away from the Town. The road ceased to be a highway through the operation of law. Towns have relinquished control over a lot of old town roads simply because the roads fell into disuse. The first determination for the Old Mountain Road supported by DEC was very strange in light of the law. Unless the town has fee title to the road bed (not the case here or for most town roads in the Adirondacks, which were established as highway easements), subdivision 1, section 205 of the Highway Law provides, “…every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway…” Case law has supported common sense by determining that a road obstructed by trees several inches in diameter, as was the situation here, can not support the passage of vehicles, and so can not be considered useable as a highway. Once the highway was abandoned, the town ceased to have jurisdiction, and had no legal right to designate it for use by ATVs or snowmobiles. Where the former road passes through a designated wilderness area, DEC does not have the authority to allow cars, trucks, ATVs or snowmobiles.

    • [email protected] says:

      So, if I’m reading your comment correctly, if a large tree falls across a road during a thunderstorm, it then is officially abandoned and no longer a road?!
      Maybe there hasn’t been any traffic on the mountain road because people were afraid the DEC would (wrongly) ticket them?

      • Paul says:

        And on most roads “closed” by the state after acquisition of the surrounding land a locked gate or boulders (or both) is put up that blocks use.

      • Bruce says:

        Snowcat,

        Or maybe the town stopped maintaining it for routine vehicular traffic because it cost money they no longer wanted to spend on it, and people were using better roads nearby. Money is often a big factor these days.

      • Bruce says:

        It will depend upon what the town does…does it leave the tree, or remove it and continue maintaining the road?

      • AG says:

        I think the law is clear…. If the town does nothing about the tree for years – then essentially yes. In the opposite way if you allow people to walk on your property for years and it becomes a path over time – it becomes an easement and you lose control of it.

        • Matt says:

          The town did no maintenance of any sort for years. Accordingly, Norfolk’s arguments can only go to use, which has been almost exclusively pedestrian foot traffic and skiers, perhaps the odd bike passing through. A reasonable person doesn’t consider that a town highway anymore, but being reasonable isn’t what this is about anyway. I suspect Martens understood that and took a pass on the protracted legal battle and associated political posturing to pursue other more important matters. The irony here is the fact that McCulley hopes to use foot traffic to make his case for this being some kind of town-maintained and controlled public highway that could be opened to motorized traffic. If I were a resident of North Elba, I would be embarrassed by the town’s willingness to jump on this bandwagon. Let’s remember some of the other lands besides Old Mountain road that we all as New Yorkers collectively own in fee: That most notorious rail corridor. I believe the saying goes: “possesion is 9/10ths of the law”

          • AG says:

            Yeah – “Embarrassed” is a good word to use.

          • Bruce says:

            Matt, very good analysis. This whole argument is proof people see only what they want to see, and will go to any lengths to convince others they see the same thing. “The sky is falling!” Funny, it looks to be right where I left it.

  4. Bruce says:

    Rick,

    Thanks for the moment of clarity. Considering the fact the plaintiff has been working for the last 13 years to keep this from simply going away, I can’t help but think there might be an ulterior motive here. Something on the order of establishing a precedent to use in other similar situations, perhaps. I’m sure this isn’t the only former town road now on protected state land ATV and snowmobile users would like access to.

  5. Tom Payne says:

    Funny, but that is not how the courts have seen it.

  6. Paul says:

    Apparently Martens has some insight into this that his predecessor, two DEC administrative judges, and one county court judge lacked? It is not about a road it is about power. When it is exercised like this environmentalists cheer, when it is exercised in a way they don’t like it is appallingly illegal behavior.

  7. Jim T says:

    “…every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway…”

    Nowhere does the law state that it has to have been used by vehicles. I don’t know the history here (and I am no lawyer) but if it was always used as a trail it should still be a highway.

  8. Boreas says:

    My only comment is this – did any of the towns affected by the state taking over control of the unused road object? If they objected and the state took over control anyway, then there would certainly be a case. If the towns didn’t object and relinquished control of the road to the state, why is this even an issue? I will admit I am ignorant WRT law, but I still possess a little common sense.

    • Paul says:

      Boreas, as I understand it (big caveat there right!) according to highway law there is a very specific protocol related to abandoning a town road. If that is not followed the road is still a town road. It is not a matter of simply the state blocking the road and the town not making an objection to the closure. In this particular case (and many others) the reason the road might go “unused” is because the state had put up a barricade and nobody can use it.

      • Boreas says:

        Today, if someone was injured or killed there and wanted to sue for damages, would both the town and state be named as litigants? Or is that the question Mr. McCulley is trying to elucidate?

  9. “They only endorse genocide and extinction of all Adirondackers, ”
    I never watch TV anymore because the internet is so much more entertaining.

    This kind of fits in with the “young, elite hikers” who want wilderness, wilderness and nothing but wilderness rant. Same ilk.

    Re the trees several inches in diameter: I suspect it referred to those that are growing, not fallen.

  10. In the Town where I work as Acting Town Clerk, I once had to look up when a road was officially abandoned by the Town. It was in 1957, in the hand-written Town Board Minutes- there was a MOTION to officially abandon Hays Road as a Town public Right-Of Way. Its interesting, as now people are purchasing property along the former Town road- now considered a private road- which may eventually ask the Town to re-instate it as a Town road- having come full cycle.

  11. Charlie S says:

    Keith Gorgas says: “no one can doubt that there’s a concerted effort to destroy the culture, history, and economics of the Adirondacks.”

    This goes beyond local Keith,and the Adirondacks. Our government has a history of destroying culture and history going back to at least the 1800’s and it continues to this day. They take down historic churches and build shopping centers in their place. Rockefeller was bent on taking down the Immaculate Conception Church in Albany in the 1960’s to put a parking lot in its place.Fortunately people fought it and won. The Albany Historic Foundation completed their renovation of that church a few years ago and ‘My’ what a beautiful piece of architecture inside and out. …and Rocky was going to put up a parking lot in its place. They took down mostly all of the original Dutch houses in Albany and NYC…only black and white photos of them exist to this day.One can only imagine the woodwork in those homes,virgin timber wood. Once again it’s about progress (regress) and dollar amounts and they’ll be damned if anything gets in their way.

  12. Charlie S says:

    scottvanlaer says: “…no one can doubt that there’s a concerted effort to destroy the culture, history, and economics of the Adirondacks.”
    I think many people express considerable doubt to your assertion. Do you really believe that or are you just making a grandiose statement?

    This statement may be doubtful about the Adirondacks scott but for everywhere else it most certainly does apply!

  13. Charlie S says:

    Bruce says:”Money is often a big factor these days.”

    There’s just no way!

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