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.