Wednesday, July 13, 2016

Dave Gibson: Another Legal End-Run Around The Rivers Act

The Boreas River just upstream of the Rt. 28N highway bridgeI noticed this in the June 29 edition of the Environmental Notice Bulletin, a weekly publication of the NYS Department of Environmental Conservation:

“Newcomb to Minerva Multi-Use Trail; Application ID 5-1599-00019/00001; Permit(s) Applied for: Article 15 Title 27 Wild, Scenic & Recreational Rivers; Project is Located: Newcomb, Essex County;

Project Description: The Department of Environmental Conservation proposes to construct a multi-use recreational trail within one-half (1/2) mile of the Boreas River, which is designated as a Scenic River by Environmental Conservation Law Title 27, Wild, Scenic and Recreational Rivers Systems. The total acreage of the trail within the River corridor is approximately 1.1 acres, or approximately one (1) mile of trail, located within the 92,000-acre Vanderwhacker Mountain Wild Forest.”

The notice is incomplete and misleading. Here we have the DEC applying for a permit from itself to build a 9-12 foot snowmobile route from Newcomb to Minerva through undeveloped forest preserve, a route which will intersect the Boreas River just upstream of the Route 28N bridge. At this location, the Boreas is a designated Scenic River under the state’s Wild, Scenic and Recreational Rivers Act. The DEC’s route requires a new steel bridge over the river here to safely accommodate two-way snowmobile traffic. The route also requires cutting 1,676 trees on the Forest Preserve from the river to private land in Minerva. Cutting across private lands will require landowner agreements which may or may not be in hand or forthcoming.

An incomplete, misleading notice is not the greatest problem – the project is illegal.

DEC cannot issue itself a permit to construct a public motorized recreational use within or across a Scenic River corridor like the Boreas. The Wild and Scenic Rivers law and regulations prohibit it. This is most clearly stated in the DEC’s own documents, a 1986 Environmental Impact Statement for the regulations implementing the Rivers Act, whereby DEC prohibited “motorized open space recreational uses in scenic river areas.” It did so because “The Department agrees that motorized recreational vehicles should not be allowed to operate in scenic river areas due to their relatively undeveloped nature and the concurrent extensive low intensity recreational and other passive outdoor uses which predominately take place within such river areas and conflict with motorized recreational vehicles.”

DEC is attempting at the Boreas River some of the same legal end-runs it’s employing at the Cedar and Hudson rivers where new motorized corridors and bridges in these Scenic River Areas were given the OK by APA in November. Adirondack Wild and Protect the Adirondacks have taken both agencies to State Supreme Court over this and other illegal management activities in the Essex Chain of Lakes unit management plan (a ruling may come this summer). APA State Land Chairman Richard Booth, whose term expired on June 30th, warned his colleagues several times during 2015 that DEC was relying on legal fiction to justify its actions in the Essex Chain of Lakes. Now, the pattern continues in the adjoining Vanderwhacker Wild Forest.

Booth also made clear to his colleagues that violations of the Rivers Act presume violations of the State Land Master Plan since the two documents are consistent and complementary. The SLMP states that “no river or river area will managed or used in a way that would be less restrictive in nature than the statutory requirements of the …Rivers Act, Article 15, title 27 of the Environmental Conservation Law…but the river or river area may be administered in a more restrictive manner.”

In the project file, DEC includes a short-form Environmental Assessment (EA) of the “multi-use trail” project. The EA form asks and answers a number of questions. One question: “is the proposed action consistent with the predominant character of the existing natural landscape?” DEC answers “yes” when, in fact, the building of a motorized 9-12 ft. wide, two-way connector and bridge one-half mile from both banks of the Boreas River represents a substantial change in this thickly forested area.

The EA form also asks: “would the proposed action physically alter or encroach into any existing wetland or waterbody?” DEC answers “no” when it is obvious that the Boreas River is a waterbody and the snowmobile trail and bridge construction project will encroach upon it and its wetlands along the river.

What must DEC do to legally authorize new and expand public motorized uses and bridge crossings in Scenic River corridors?

Amend the statute and the regulations in the plain light of day involving the State Senate, State Assembly and public hearings. In other words DEC, stop these legal end-runs and enforce your Environmental Conservation Law, or explain to elected officials and the public why the law needs to change.

Photo: The Boreas River just upstream of the Route 28N highway bridge.

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Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest Preserve

During Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history.

Currently, Dave is managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.




31 Responses

  1. Larry Roth says:

    This is part of a larger pattern. The state’s recent amendments to the Unit Management Plan for the Remsen-Lake Placid Travel Corridor are being challenged in court for similar reasons: regulations ignored, misleading or incomplete information in the public hearing process and official documents, and so on. Decisions made behind closed doors and information not shared even within the department. Who’s in charge at DEC and what is happening to the way it operates? There are troubling aspects to what is coming out of DEC on a number of items.

  2. Marco says:

    Lean-tos and bridges along the Cold River and Calkins Brook are at risk of being dismantled as they adhere to the guidelines. Yet here, they wish to install a motorized connector in clear violation of there guidelines? Nope. It doesn’t make any sense! Who comes up with this crap?

  3. John says:

    What must DEC do to legally authorize new and expand public motorized uses and bridge crossings in Scenic River corridors?
    The answer Dave, is to just do what the governor tells it to do, nothing more, it all started with the ACR project approval in Tupper.

    • Paul says:

      “The answer Dave, is to just do what the governor tells it to do, nothing more, it all started with the ACR project approval in Tupper”

      This keeps getting bantered around. If this is true why not present at least one shred of evidence to support it.

      After an almost unanimous decision by the agency and a court decision that ruled that all was above board people still want to throw out these sorts of accusations that seem to have zero to back them up. What are we supposed to just believe this despite all the evidence to the contrary and nothing to back it up?

      Here I can see that folks want to keep pointing at the one dissenting voice involved but for most I think they find some value in the opinion of all the others involved (some lawyers too).

      • Larry Roth says:

        There is plenty of evidence, when you look at impact statements and the like, when you see what is in there, and what is not. While the state is building snowmobile trails, do you see any mention of demographic trends or climate? Somebody chooses what ends up on the official record Or doesn’t .

        • Paul says:

          And ten out out of eleven members ignored it and the courts missed all of it. This was done legally what more do you need?

          This land could have been developed much more extensively based on the legal zoning rules. In this case there was impact but impact well below what is allowed by the rules. In fact much of the land was left undeveloped and can’t now be developed based on the permits granted and the future owners are bound by those restrictions. The agency did its job the court affirmed that fact. The case is really closed.

          • Larry Roth says:

            The members can only act on what they’re given – their decisions are only as good as the information they are based on. Ditto for the courts. The agencies are supposed to provide a complete picture when plans are being proposed. That’s not happening.

            I know I raised extensive questions on one particular aspect of a proposed amendment in the comment period, and there was no mention of it at all in DEC’s summary – and there certainly should have been. Their own official policies mandate it.

            Governor Cuomo is more interested in results than he is with process; keep bending it and it will break. As for a decision being legal, A) one can be legal but still not be right, and B) it’s legal until it isn’t – if it loses on appeal. That’s why we have an appeal process – to keep things on the level.

    • Boreasfisher says:

      Not sure I follow the drift here….are you saying that if the Governor wants it, what he wants is automatically legal? Or perhaps, I hope, you were just being ironic.

      • Boreas says:

        Boreasfisher,

        Well yes, that kinda is the drift. The Governor has been pushing for various projects that have legality issues. His will alone obviously doesn’t automatically make it legal, but APA & DEC seem to be trying as hard as they can to get around any legal snags to enable his plans. Not necessarily a bad thing, but it can lead to convoluted legal precedents and trouble down the road.

        • Boreasfisher says:

          Well, I’m with Dave on this…regardless of your commitment to the outcome, an administration and its handmaidens that subverts the law to accomplish their ends is sowing the whirlwind.

          • Boreas says:

            Agreed!

            • Paul says:

              Of course it is. Everyone agrees on that (unless they are unhinged). But just saying that in this particular context doesn’t make it so. What has been carefully examined has shown that (so far) there is no such subversion going on here. This new one is another example to be looked at. People should not jump to any conclusions. It looks to me like the agencies are being pretty transparent.

  4. I agree with Marco. They want to close the Gulf Brook Rd. and make canoeists carry their boats 7 miles to paddle on Boreas Ponds in order to had wilderness but they are planning to build a steel brige and cut new 9-12 foot wide trails for snowmobilers. The problem seems to be that they think snowmobilers spend more money so that is what they want to encourage.

    • Larry Roth says:

      Bingo

    • Phil Brown says:

      James, DEC has not announced any decisions on Gulf Brook Road, but in an internal document a few years ago, the department suggested opening the first 5+ miles of the road to LaBier Flow.

  5. Tom Payne says:

    Absolutely hilarious. Coming from the the Environmental Lobby who have for years had the keys at the back door of the NYSDEC and APA. Now that things aren’t like the good old days in Albany you talk about the law. How hypocritical! This proves one thing, laws apply to certain folk in this society and others feel they are above the law.

    • Boreas says:

      T-P
      Regardless of who is bringing it to light, the law is still the law.

      • Tom Payne says:

        Is that like when the NYSDEC illegally took and closed roads in the Adirondack Park for the benefit of groups aligned with the Environmental Lobby? Laws are made to be broken for that certain few.

  6. Wally Elton says:

    So how can the public weigh in?

    • Larry Roth says:

      Depending on how the comment period is handled, they can’t unless the agencies do an honest job. When DEC prepares a summary of comments, the question that needs to be answered is does that summary accurately reflect public opinion? Without access to the original comments or being present at all the public hearings, you are going on trust. Failing that, the only recourse is legal action.

  7. ADKerDon says:

    Just one more reason to abolish the forest preserve; to start managing for wildlife habitat; to expand outdoor recreational opportunities for all the people. Time to reject everything Gibson, Booth, and the others with their hatred of the Adirondack people who oppose improving their economy and year-round recreational opportunities. Abolish the outdated worthless forest preserve now.

  8. Bruce says:

    In the final analysis, public comment periods are a way of gauging the public’s desires, nothing more. They are essentially non-binding referendums, only with a much smaller turnout. Those who feel they lost the toss will say they (the facts) were ignored.

    When it comes to legality, it would be far better to actually quote the given law or portions thereof which actually apply, and then show exactly how that law is being broken. I don’t believe that was done here. The courts have to go by what the law actually says or doesn’t say, not by what individuals or groups say is the law.

  9. Joe says:

    Public comments are interesting but do not, and should not, drive the process. First, comments are often uninformed. Second, running this park by counting up form letters received is crazy. Imagine the potential for mischief and outcomes not associated with the law at all and not even from NYS residents.

    Our advocacy groups are biased, as they are supposed to be, but they do not represent the full public in any sense. Their boards are mostly wealthy people who know little about the regulatory details of the Park. Big donors get board seats and vote on policy issues. They can, and do, whip up letter writing campaigns using a variety of means. But the State Government must represent everyone, not just paid lobbing groups. While they have a role, a focus on lobbying groups is what has Washington so messed up and it isn’t what we need here in the Park.

    • Larry Roth says:

      An interesting take on the way the state is supposed to be run. In effect you are suggesting the state agencies should act as a Mandarin class of enlightened bureaucrats who can ignore input they feel is biased or uninformed. Who do they answer to in that case?

      But then, there are those who would say that’s exactly what we have now. Again – that’s why we have legal appeal to the courts as part of the process. Unfortunately, in that event the outcome turns on how much lawyering you can afford.

      • Joe says:

        I did not suggest letters be ignored. Read my post. I said they should not drive the process. In the end voters of the state drive the process. And sometimes that yields a NYCO, but they own the place, not the lobbyists.

        • Todd Eastman says:

          Comments do not have be used in making decisions…

          … but are used to determine the political viability or consequences of a proposal.

          Agencies fear the legislature’s budget wielding more than comments. The legislators’ staffs do track the comments. Eventually the public’s views may be reflected.

          Public process happens on many levels. Never stop pressing for what you think is right!

  10. Dave Gibson says:

    I appreciate all the insightful comments since the original post.

    Todd Eastman’s “public process happens on many levels;” and “never stop pressing for what you think is right” ring particularly true for my organization. Joe is also right when he states that we admit to a strong point of view (bias) which does not encompass 360 degrees. The voters and taxpayers do “own the place.”