There are many ways to constrain the boundaries around public participation in decision-making. One way is to sidestep the law without amending it, thereby limiting public awareness and legislative debate of the issues. An example of this is occurring on the former Finch, Pruyn lands where the State wants to issue itself a permit or a variance to allow snowmobile connectors in river corridors when the law says that that motorized recreational activity is not permitted.
Under the Essex Chain of Lakes Primitive Area Unit Management Plan, the State recently argued in Albany County Supreme Court that DEC regulations allow the agency to issue itself a permit or variance to do things that others could not do, like build a motorized bridge over a scenic Cedar River, or operate motor vehicles over a scenic river like the Hudson River. Other parts of these River regulations expressly disallow the State from issuing itself a permit or variance to undertake a project which the statute disallows.
The State also argued in court that because former private owners once permitted motorized uses, these uses are pre-existing and therefore lawful for the public to do when the land became Adirondack Forest Preserve. Those who were involved in writing these laws in the 1970s maintain that land uses existing on private land do not extend to you and to me when the land reverts to public land. They say that to argue otherwise is a plain mis-reading of the Rivers Act. Even allowing for such mis-reading, Wild River corridors are to be treated as Wilderness under the State Land Master Plan. Pre-existing uses are irrelevant. An example is the wild Hudson River south of Newcomb and near the confluence of the Indian River, where a half-mile on either side of the river should be managed as Wilderness. Yet the State has administratively opened the gate into the Indian River tract allowing us all to improperly drive through a one-half mile wide wild river corridor – just as I did the other day. The wild Hudson River is just one-eighth to one-quarter of a mile away.
Plaintiffs Adirondack Wild and Protect the Adirondacks argued in Supreme Court that the State is plainly evading the law and its regulations. We have no desire to be in court, as resorting to litigation is costly in many ways. Before resorting to litigation we had urged the State to seek to do these things through the right channels which are to amend the river laws and regulations it finds objectionable and thereby afford the public through their representatives in Albany and through public hearings the opportunity to debate these matters in public. The State chose not to do this. It is as if the ink on parts of the law state agencies wish to avoid simply disappears. That certainly constrains meaningful public debate and invites a courtroom challenge.
Another way to constrain boundaries around public debate is to limit the number of possible alternative courses of action, and the analysis behind these choices. If an agency does not discuss its reasons for presenting an alternative, it’s harder for the public to meaningfully engage. Limiting alternatives analysis is one way to “frame the debate” by not inviting the public to appreciate that there may be a wider range of options for them to consider. This is frequently done in at all levels of government across the country. A recent example is at the Adirondack Park Agency. We appreciated that APA during its meeting presented a “4th alternative” way to classify the Boreas Ponds tract, but prior to that only three alternatives were presented as options for future public hearings, with no real Wilderness option. When alternatives become too limited a pre-determined outcome may be sought, or certain aspects of the law or a certain set of interests may be neglected.
With respect to the Boreas Ponds classification options, APA member Chad Dawson made comments at the APA meeting last week which sought to loosen the boundaries of public debate, not constrain them. He argued before his colleagues that APA has a duty to present more alternatives that would allow for the highest levels of wilderness protection at Boreas Ponds, not just for today’s generation for future generations. “I think we need to have an understanding about what these alternative courses of action may mean in 10, 20 years from now,” he said. “Our choice will affect a very long period of time. What is the carrying capacity of Boreas Ponds,” he asked? “If you have a high value wetland there, what are the impacts of allowing motor vehicle use up to the Ponds? What happens to the loons, to moose populations? What if the gravel pits were moved? What if the dam were allowed to deteriorate? We should be asking about a wider range of options here.”
I appreciate that the State has scheduled eight public hearings across the State about the State Land Classifications. The first is scheduled for the evening of November 9th at Ray Brook. This number and diversity of hearing locations invites meaningful public participation in decision-making. The State must set reasonable limits on the number of hearings and the number of alternative courses of action. However, those limits should not lower the state’s standards of its responsibilities under existing law, nor should it narrow all reasonable options for protecting and restoring wilderness conditions. In speaking to his colleagues last week, APA Member Chad Dawson proposed, and I paraphrase what he said: let’s not simply ask what uses the lands were put to in the past and limit our imaginations to those past uses, but let’s ask additionally what these lands could become in the future? Restoring wilderness conditions where warranted is a big part of our legal responsibility under the State Land Master Plan. We need to try to see the whole landscape and envision its management over a long period of time, he urged.