Monday, January 11, 2016

Legal Questions Swirl Around State’s Plan For Essex Chain

Polaris Bridge and the Upper Hudson (courtesy Protect the Adirodnacks)Two of the Adirondack Park’s four major environmental organizations filed a legal challenge to the Essex Chain management plan, but the two others have legal questions as well.

Protect the Adirondacks and Adirondack Wild filed a lawsuit today in State Supreme Court in Albany, claiming the management plan violates the Adirondack Park State Land Master Plan, the state Wild, Scenic, and Recreational Rivers Act, and state snowmobile-trail policy.

Named as defendants are the state Department of Environmental Conservation, which drafted the management plan, and the Adirondack Park Agency, which approved it. Both agencies refused to comment on the suit.

Christopher Amato, a former assistant commissioner at DEC, told the Almanack that the Essex Chain plan is “blatantly illegal.” Amato is now an attorney at Earthjustice, a nonprofit organization that is representing Protect and Adirondack Wild in the lawsuit.

Amato said Earthjustice will file a motion to prevent DEC from implementing the management plan until the lawsuit is resolved.

The Adirondack Council and Adirondack Mountain Club declined to join the suit. The leaders of both groups said they are waiting to see how DEC implements the plan before deciding whether to pursue legal action.

“We are hoping to resolve these issues without going to court,” said Willie Janeway, executive director of the Adirondack Council.

The APA approved the management plan in November by an 8-2 vote. It governs recreational use in the Essex Chain Complex, which includes the Essex Chain Primitive Area, the Pine Lake Primitive Area, and portions of the Blue Mountain Wild Forest and Vanderwhacker Mountain Wild Forest.

The suit contains five causes of action. Four of them relate to a proposed snowmobile trail. The fifth challenges a proposal to allow mountain bikes in the Essex Chain Primitive Area.

A controversial trail

 The snowmobile trail would connect the hamlets of Indian Lake and Newcomb (and eventually Minerva). In the Essex Chain Complex, it would follow old logging roads, crossing the Cedar and Hudson rivers; it then would continue through a section of the Vanderwhacker Mountain Wild Forest that is now trail-less.

Protect and Adirondack Wild contend that the trail will duplicate an existing trail connecting the two hamlets and thus violate DEC’s snowmobile policy.

DEC plans to build a new bridge over the Cedar and open to public use a logging-road bridge over the Hudson. The lawsuit contends that the use of these bridges for motorized recreation would violate the Wild, Scenic, and Recreational Rivers Act. At both bridge locations, the river in question is classified as Scenic. The lawsuit says bridges over Scenic Rivers are allowed only for public roads and for non-motorized recreation.

Furthermore, part of the snowmobile route lies near a stretch of the Hudson classified as Wild. The lawsuit says motorized recreation is not permitted within a Wild River corridor.

Biking in Primitive Area

Typically, biking is prohibited in Primitive Areas. However, DEC wants to allow biking on nine miles of old logging roads in the Essex Chain Primitive Area. The lawsuit says this violates the State Land Master Plan.

The Adirondack Council and Adirondack Mountain Club (ADK) do not agree with all aspects of the lawsuit. For example, they support allowing bikes in the Primitive Area if the State Land Master Plan is amended – something the APA is considering.

Moreover, the council and ADK would not necessarily oppose a snowmobile trail that crosses the Cedar. Again, they want DEC to do it legally. Janeway and Neil Woodworth, ADK’s executive director, said they are holding fire until they see DEC’s legal justification for its actions.

“ADK and the council have retained our own attorneys, and we have a different way of looking at the whole situation,” Woodworth said. “It’s just a different approach.”

In the past, DEC has offered a controversial justification for allowing snowmobiles to cross the Polaris Bridge over the Hudson, claiming the department is merely “grandfathering” a pre-existing use. All four environmental groups contend this would set a dangerous precedent for the Forest Preserve.

Finch, Pruyn & Company, which then owned the land, built the Polaris Bridge in 1993 to access its timberlands on the east side of the Hudson. This was nearly two decades after passage of the Rivers Act – the law that Earthjustice claims would be violated. However, a bridge had existed at the site in the past, evidently as late as the 1950s.

In any case, environmentalists point out that the bridge and the land were then in private hands. They contend DEC cannot rely on this private use to circumvent the Rivers Act and open up the bridge to the public for motorized recreation.

DEC officials have said the Rivers Act allows past uses to continue and does not distinguish between private and public uses.

Environmentalists say DEC’s legal theory could be used to continue all sorts of past uses when the state acquires new land for the Forest Preserve.

Photo courtesy of Protect the Adirondacks: the Hudson River, with Polaris Bridge visible at bottom.

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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.

8 Responses

  1. Jim S. says:

    I am a dues paying member of 3 of the 4 groups mentioned .I find myself very worried about ADK’s and Adirondack Councils lack of commitment to protecting primitive areas from what I consider to be outrageous uses of the Essex chain area. Snowmobiles. bikes , bridges and roads don’t belong. Good job Protect and Adirondack Wild.

  2. M.P. Heller says:

    The calmer and more rational minds at ADK and Council have it right. The other groups continue to marginalize themselves.

  3. Bill Ingersoll says:

    I applaud the two groups for having the courage of their convictions, although I hope for their sake this suit turns out better than Protect’s prior suit over the Jessup River UMP. If memory serves, that suit was dismissed because the judge ruled no one can sue over the contents of a planning document. When the state **acts** on the provisions of that plan, that’s when it’s time to litigate.

    And I can’t say that I’m impressed by the two groups that in decades past would have fervently opposed some of the actions being proposed for the Essex Chain, but that now seem to warmly embrace them. If I wanted my money to support the construction of a snowmobile trail, for instance, I’d join a snowmobile club. If I contribute to a hiking club (or a pro-wilderness advocacy group, for that matter) then I’d expect an entirely different set of priorities.

    I stopped giving my money to ADK a few years ago, although some of my friends in that organization sometimes tease that I should return to the fold. But it seems like every policy statement issued by ADK since my departure has justified my decision to go my own way. And thanks to Meetup, the social benefits of joining a hiking club are entirely replicable. I’ve outlived my need for ADK.

  4. scottvanlaer says:

    It is erroneous to lump the ADK in with “green groups”. They are a hiking club. No one is lumping in Snowmobile clubs, running clubs, ATV clubs. bicycle clubs who also likely have opinions on environmental topics. Their recreational pursuits bias their stance just as it would the other groups. They are collection of people who enjoy a specific recreational pursuit.

    • Paul says:

      I agree. They are also in the lodging business. ADK owns and operates two lodges, one on the edge of the HP Wilderness and one smack in the middle. Totally different bird than the other three.

    • Solo Pete says:

      Totally agree with you

  5. Paul says:

    Sounds like the Council and the ADK have lawyered up. Why should the DEC and the APA continue to work with and appease these groups if they keep turning around and suing them when they reach a compromise that gets them much of what they wanted?

  6. Tim-Brunswick says:

    Sounds like Bill Ingersoll pretty much nailed it !

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