Thursday, March 30, 2017

State: Adirondack Rail Trail Possible Despite Deed Questions

Opponents of the state’s plan to remove 34 miles of tracks between Lake Placid and Tupper Lake have questioned whether the state owns the rail corridor.

As it turns out, the state doesn’t own two parcels in the corridor: a half-mile stretch in Saranac Lake and a smaller parcel at the end of the line in Lake Placid. The state says it owns the rest of the corridor.

The Saranac Lake parcel is adjacent to North Country Community College and owned by Franklin and Essex counties. The Lake Placid parcel is owned by the Lake Placid-North Elba Historical Society, which operates a museum in the depot there.

The state says the landowners have agreed to work with the state to allow the rail trail. In court papers, the state says it has three options: buy the properties, acquire easements to allow public access, or appropriate the parcels.

But the state also says it can create the rail trail even if the landowners don’t cooperate. Read the full story on my Outtakes blog on the Adirondack Explorer website.

Photo by Mike Lynch: rail corridor near Saranac Lake.

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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.

45 Responses

  1. Pete Nelson says:

    And here we go again, off to the races!

    The lawsuit will play out as it does. The deed issue is pretty much a non-issue.

    • David P Lubic says:

      Maybe, maybe not. I understand that there are other property holders who may be affected, and may either require compensation or may not want to cooperate at all.

      Just because some people think these are the only two properties doesn’t mean there aren’t others. I well recall the claims, addressed by Keith Gorgas below, that the railroad was owned outright by the state.

      What that means is that even those two easements that have been admitted so far shouldn’t have been there at all. And if those two are there that shouldn’t have been there, then it is possible, even likely, there are others that nobody is talking about.

  2. Paul says:

    Why would they talk about what they could do if the landowners don’t cooperate when they already said that they are going to cooperate. If Pete is right (and from what they say it sounds like he is) and this is a non-issue then why not settle it right now?

    In SL where the RR tracks cross river street and then pine street and then go under Forest Hill ave and then cross the pine street again and then cross the river on the bridge and then cross Woodruff Street and then cross Bloomingdale ave and then Margret Street (then goes by the depot) and then Cedar Street and then Broadway before heading out to Lake Colby – all of that land is owned by New York State? That’s amazing.

  3. Larry Roth says:

    Sorry Mr Brown, you’re whistling in the dark on this one. You also fail to address the historic preservation issue.

    If you told the state you filled in a wetland, but it was mitigated because you videotaped the process, I am sure that would go over well.

    The judicial branch of the government is showing us the executive branch has really messed this up from the beginning. If you are really concerned about the Adirondack Park, you should find that really troubling.

    • Paul says:

      Phil has pretty much just reported what is going on. I don’t really see any agenda here other than information. Maybe too much but we keep reading so why not! Gotta try and sell the stuff on the right side of the screen.

      • Larry Roth says:

        Well, that’s the question, isn’t it? It isn’t just about the title issues, it’s also about the historic preservation laws. News coverage seems to ignore that side of the problems with Alternative 7, as though history doesn’t matter.

        And if the laws are ignored, it doesn’t, and we learn nothing.

        So far, the state seems to have failed to come up with an adequate answer for Justice Main on the issue. There’s no excuse for that given how much time they had and how much input they were given. It really feeds the impression the state decided they would end up with Alternative 7 even before they began reviewing the 1996 Unit Management Plan that settled on Alternative 6.

        • howard says:

          If it was me & I was the state, I would just let this drag out, in the mean time I wouldn’t renew a single lease for anyone to operate a single thing on the rail line as long as this dragged out in court. No sense in allowing the ASR to operate since they are suing me (i.e. the state). Why should they get to benefit from any thing under my control until the court cases are decided!

          • Larry Roth says:

            Well, who is benefitting? Thanks to the ASR, thousands of visitors have come to enjoy the Adirondacks, creating jobs, bringing money into the local economy, and maintaining the corridor for all users – some of whom might not be able to enjoy it any other way.

            The state may very well sit on the corridor and refuse to allow anyone to use it while issues are tied up in court – but the court might take a very dim view of that.

            If you were the state and acted in such an arbitrary and vindictive manner, the public would have every right to call your trusteeship of a public resource into question. I believe the legal term for the kind of action you propose falls under the heading of “cutting off one’s nose to spite one’s face.” (It looks more impressive in Latin.)

            By the way, if you had some reason to sue the state, would be you think it was proper for the state to act that way to you?

            • howard says:

              They barely make enough money to survive on their own, do you really think anyone will miss them if/when they are gone. NOPE! And as far as the court taking a dim view on that, they can for all I care, but they cannot make the state issue a lease, if the state choose not too.

            • Boreas says:

              I can certainly see why the NYS legal team would advise the state not to offer ANY leases until all of the deed issues, legal issues, and likely appeals are decided and they have a chance to rethink the future of the corridor.

              Perhaps if the corridor is deemed a historical treasure, running a modern, sightseeing locomotive will not be viewed as a historic use. If the corridor itself is deemed the most important point, what would be the best use in the future? A modern locomotive vs. a vintage steam locomotive? A non-polluting light electric train? Modern cars vs. vintage coaches? Hauling freight? 19th century historical usage vs. 20th century usage? What will be the best way to preserve and protect the history of the corridor? None of the above? All of the above? Which of these options be deemed as best complying with both the letter and spirit of the ROW verbiage on the deeds? I can see the history issue becoming the next big debate if indeed the current compromise is scrapped.

              This judge’s decision will likely be the first of a long line of legal decisions with regard to the corridor. Will ASR and/or ARTA survive long enough to wait until the process plays out?

        • Paul says:

          The issues related to the historic preservation laws have been covered here at this blog? By the same author in several stories.

          What strikes me as kind of funny on this one is that there seem to be quite a few people here that support a pretty serious snowmobile trail that normally are probably not to keen on the machines.

    • Phil Brown says:

      Larry, I have posted many articles on this controversy and written many times about the historic-preservation issue. This article focuses on another aspect of the legal situation. It’s not that I am failing to address the preservation issue. It’s just that that is not what this story is about.

      • Larry Roth says:

        I can see that Phil, but I can also see that this might leave readers with the impression that the deed questions are the only real problem – especially as you state “But the state also says it can create the rail trail even if the landowners don’t cooperate.”

        You do make it clearer at the Outtakes article – and it’s nice to see the state admit that it doesn’t have to remove the tracks to have a trail. But, for those who don’t click on the link, that’s a bit problematic in what they take away from this.

        Those of us who think rails AND trails are the best choice wish the state had shown that flexibility earlier. The railroad would be happy to share the corridor where it’s feasible, and happy to help the state find alternative routing where it isn’t.

        There are places where it actually makes sense to have the trail apart from the corridor, to connect it to places of interest off the rail line and tie them together. It’s which both would be stronger together than they would be separately.

        There’s also the question of what the state could really do if it didn’t approach this from the position of going for the cheapest possible solutions. Penny-wise and pound foolish is why the state fails to make best use of what it has. You have to spend if you really want a return.

        You could almost think this was more about coming up with a plausible way of getting rid of the railroad than making the best use of a public asset. 😉

        • Boreas says:


          The idea of a side-by-side trail resolves no issues WRT deeded rights, but makes it more complicated and less expedient. The ROW wording specifying ‘rail’ would still be an issue with any multiple use. Any widening of the corridor, detours, added side trails and crossings – whether on state land or not – all open additional cans of worms that the state may not want to tackle. They are already being sued for wanting to re-purpose their own corridor.

          Why would NYS choose to take the much more complicated and drawn-out process of additional land purchases, easements, ROW arguments, and APA amendments/battles when they already have a corridor at their disposal? If you feel they are taking the easy and cheap way out, you are right. Taxpayers expect their funds and resources to used prudently. The state is just trying to make that happen with the compromise decision.

          • Smitty says:

            Here’s why. The state had hearings, took comments from all parties, deliberated, and arrived at a reasonable compromise. Now the rail advocates have selfishly decided to obstruct at every turn to get what they want, costing taxpayers more time and money and unnecessarily delaying what will be a public benefit.

            • Larry Roth says:

              If the ‘compromise’ had been truly reasonable, there’d be no case to take to court.

              As far as taking comments from all parties goes, some of them may have been taken – and thrown right in the trash.

        • Paul says:

          Larry, let me try again to ask this question. On a rail with trail what are you going to do where the tracks cross lake colby. Talk about deed issues! The only thing I can think of there would be to buy land on the lake shore. Numerous private parcels where most of the owners probably have zero interest in selling. Please explain how this will work?

          • Keith Gorgas says:

            Around Lake Colby is probably the easiest solution of any part of the whole trail. The village of Saranac Lake already has a bike trail that comes out from the village, past the Dodge dealer, through the beach, and into Lapan park. There already is a wide bike lane along the road there, and except for two small spots there is at least 10 ft between the road and lakefront. There are a couple of short sections, maybe 5 ft long, where erosion has narrowed the space to about 8 ft between the park and the State boat launch. Snowmobiles already use this path all winter. People use the boat launch to unload snowmobiles and from the up to Old Military Rd there is ample room for a path. There is an existing snowmobile trail that goes in off of Old Military Rd,through the old apple orchards, and connects to both the Bloomingdale bog trail and to the RR right of way. It’s already regularly used by snowmobiles and would be far cheaper to upgrade than removing the rails. I attended the APA hearings when Mr. Davies from the DEC claimed that the grade change was too great to use this alternative. That was either gross ignorance or a deliberate deception. The change in elevations is about 15 ft over the whole length of it, and far less than the existing grade changes on the RR ROW. Lake Clear Junction is 80ft higher than Saranac Lake, with several substantial hills along it.

            • Paul says:

              Keith, I personally would like to see the RR preserved along the whole route so don’t take my comments the wrong way. But suggesting that going on the highway side of Lake Colby (including along the shoulder of the road) is not a good alternative for a trail like this. And you are suggesting that a trail be built across several private parcels there. That is not the same as an old snowmobile trail that people may have been using by the good grace of the owners over the years. As far as the old RR bed that runs out across the Bloomingdale bog that is going totally in the wrong direction?

            • Paul says:

              If that section is the easy part I would hate to see what the hard sections are!

  4. Keith Gorgas says:

    Phil, I respect that your coverage of this issue has been considerably more balanced than what the young “reporter” at the ADE presents. I also appreciate that your coverage has every right to be biased towards a certain position. I’ve got no problem with your representing your own view point and that of like minded people. You are not the “newspaper of record” for the area. The Adirondack Almanack is the online representation of the Explorer, whose founder has been a long time advocate for the destruction of the railroad in order to create the Bob Marshal Wilderness.
    I’m grateful that you allow the voice of dissent and open dialog in response to what you publish.
    For whatever reason, perhaps on the advice of their attorneys, employees, volunteers on the railroad, and board members rarely comment or dispute statements made by opponents of the railroad. People who worked for the State in devising Alt 6, the 1996 UMP are forbidden, contractually, from public comment on it. So the voices in support of restoring rail service to the Northern Adirondacks are limited to concerned citizens. Some are “rail fans” or “railroad buffs”, commonly referred to by ARTA members as “choo-choo heads”, or similar derogatory terms. I don’t fit into that pigeon hole. I do know the difference between a steam locomotive and a diesel, but that’s about the extent of my knowledge of trains.
    My involvement in the controversy has always been from an economic and environmental vantage point, and the researched conviction that a restored railroad re- connecting the tri-lakes with the nation’s rail network, along with a recreational trail is the best solution for the region economically, environmentally, culturally, and morally.
    That said, I think many of the news venues, for what ever reason, are doing the public a disservice by not at least addressing the fact that up till now, the State has never produced a record of legally taking the underlying land in the right of way, not just through two parcels, but through all the private land through which the right of way runs. I wrote to the DEC three times asking for that record and received no response. I have personally seen a number of deeds belonging to homeowners along the ROW that are specific that an easement is given for rail operations.
    It may turn out that the State has indeed, at some time in the past, met its obligation to provide just compensation for the public taking of private property. If so, I’m surprised that they haven’t been forthcoming with that proof. Perhaps that proof was included in the State’s recent response to the judge.

    • Big Burly says:

      @Keith, NYS did not provide any such information regarding any deeds other than the NCCC property and the small parcel in LP. I too have read many deeds in Segment 2 with specific wording regarding the ROW for railroad use across the land described in the deed. And I asked the landowners if NYS had at any time contacted them or their family since 1974 (most of the deeds have been held in the same family for many years) — the answer in every case was no. BTW all the deeds involved are in the public domain at the local county real property office.

      • David P Lubic says:

        Big Burly, your comment seems to confirm what Keith has been saying and what I’ve been told. . .that there are other properties with easements that the State of New York has NOT said anything about yet.

        There’s dynamite on the track, and someone’s trying to hide it.

      • Boreas says:

        My only comment is if all of this is is public record, why haven’t the rail lawyers given the judge a list of all of these properties to support their case? Or have they?

        • David P Lubic says:

          They may well have. The lawyers only submitted 2,500 pages of exhibits. Who knows what is in all of that.

        • Keith Gorgas says:

          Boreas, from what I’ve been told, they did indeed pass them on to the judge.

        • James Falcsik says:

          Both Keith and Big Burly are reputable contributors to this forum; if the railroad attorneys have provided evidence of deeds with easements as examples to the court, what is the plan from NYS? Ignore the law and land owners, and build the trail anyway? Forgiveness is easier to get than permission? Or perhaps possession is 9/10’s of the law? Phil, have you spent any research time at the local tax offices to look into this for yourself?

          It seems government agencies really don’t answer to anyone in particular. If they are in the wrong who is to do anything about it? By tearing up the tracks and building a trail, a land owner with a deed that has provided an easement for the RR would need to speak up and petition the government for payment. If you read up on many of these easement cases, the trail developers are not liable for the cost, the government is. So in the end, the taxpayers get the shaft for the inept agencies that should know better. The NYS DEC and DOT probably do know better, but the political machine requires them to forge ahead.

          Perhaps that won’t happen here if the judge rules in favor of the railroad.

  5. James Falcsik says:

    Keith and Big Burly’s testimony in this forum of having seen other deeds with easements for the railroad right of way shed light on another matter. This may explain why ARTA and really, Lee Keet in particular, would have paid Bill Owens to file an amicus brief in the case before Judge Main. One of the reasons an amicus brief is filed is because the interested parties don’t believe the attorneys representing their interest are getting the job done. Perhaps Lee Keet can see the NYS attorneys are as inept as the agencies they are defending, or, “the cat is just about out of the bag” All speculation on my part, but very interesting.

    • David P Lubic says:

      Just speculation on my part, but I can’t help but think the people at the Attorney General’s office are disgusted with the ARTA and other bodies they are working for here. If they lose the case, they will have done so because they were given a losing case to begin with, based on bad information. I think they found this out pretty early in the process, and that explains the very large and exceptional number of continuances granted as they attempted to make the best of what they could.

      But being attorneys and knowing the law as they do, they would also know there was only so much they could do. They have been, I believe, trying to put on a brave face, but they know the score.

      They aren’t really to blame as much as the “client” for sending them into a case with bad information or even the hope of winning legally but dishonestly.

      But that’s just my opinion, and you know what that’s worth.

      • Boreas says:


        Good point(s). But who was in the dark here ARTA or NYS? I am not defending ARTA, but was it wrong of them to assume NYS had no legal/deed issues WRT the ROW? As an outsider not affiliated with ARTA, I do not feel the century-old legal ROW issues that have been buried for as long, were their responsibility to flesh out before they proposed any changes to the corridor’s usage. Rather, I feel it should be the state’s responsibility to assess before any plans were made.

        My personal assessment of the situation is that NYS did not foresee a leaseholder suing them to block a compromise that in fact increased the leaseholder’s usable mileage within the corridor by repairing the southern end of the line and functionally connecting it with points south. ARTA notwithstanding, I feel the same legal challenges would have been put forth by ASR regardless of who suggested any alternative re-purposing of any section of the corridor that interfered with their business. That is only common business sense.

        • Keith Gorgas says:

          Boreas, two comment to your questions. 1) When the 1996 UMP was put together, the State was aware that the ROW would revert to the underlying landowners if the tracks were removed. In fact, the APA stated that the State land would legally revert to its surrounding classification.
          2) Back about 20 years ago, the then State Attorney General told various state agencies to ignore right of way law, with the assumption that most people are ignorant of the laws, and it would be cheaper and less cumbersome to just settle with the few that challenged them. This has led to a lot of abuse, and to some very large court and out of court settlements over the past couple of decades. I’ll give you one very common example: State highway law states that if a road is a “road by user”, and not a planned deeded road, the responsible party (State, County, Town, etc.) must clear the entire ROW by a certain day in August every year. Any part of the ROW that is neglected for over 20 years reverts to the underlying land owner. Many older deeds go to the center of the road. To reclaim the ROW, the road user must re-condemn the land and settle with the land owner, and compensate for trees or earth removed in a later project. Routinely now, governing entities ignore that law, and every once in a while a landowner sues and wins surprisingly large settlements. In two high profile cases regarding railroad ROW’s, the Supreme Court has reinforced land owner rights, in 2014 by an 8;1 or 7:1 opinion. The lone dissent was not for legal reasons, but because the cost of compensating landowners will be a huge burden to taxpayers.

          Bottom line, there were people in the DEC and DOT who have known all along that they do not own the underlying land in the ROW. It’s been a genuine betrayal of the public trust on the part of some people in Albany.

          • Boreas says:

            So, in your opinion, should the corridor be closed where there are any suspect ROW issues? Declare the easements void and give the landowners back their property? How can we even maintain the current corridor’s usage if it is in contention?

            • David P Lubic says:

              The contention comes from the easements, which were written for a railroad and have a reversion clause if the railroad is removed.

              If you are really concerned about keeping the corridor intact–and that is perhaps the single most important thing here, and I’m speaking as a rail supporter as well–then the easiest, cheapest, lowest risk, and best way to do that is to keep the railroad intact and ditch the ill-advised idea of tearing it out.

              The law is plain on that, and the cat is out of the bag, too–too many people know, and even if they were trail supporters (and not all of them will be), you can bet they like money and would LOVE a NEW easement agreement at a NEW price, which will be pricey!

            • Paul says:

              This is where property law gets really funky (for lack of a better word). Let’s say that the RR did not have a proper easement going across a parcel of land. If that use exists for a certain period of time (decades) w/o the landowner objecting to the use there could be a special kind of an easement that now exists. We see this when a landowner access their property across another parcel. Even if they do not have a deeded easement at some point they could get an easement if the other landowner appears to be allowing the use w/o objection.

              One interesting point here is that both of these two parcels are owned by other than your normal private entity. I understand that these special easements are more difficult when it isn’t your straight up person to person transaction. If the state is basing anything on this other type of ROW they must be thinking that it will allow for any type of travel. A land0wner could maybe argue that I was “okay” with the RR but now I am objecting to this new use. Not sure how that would play out.

              • Boreas says:


                What about the scenario if rail traffic increases significantly between SL and Old Forge area. There hasn’t been significant traffic over that section in 50 years. Would any private landowners in Tupper, etc. be able to revisit their easements to deal with increased usage (noise, derailment risk, pollution, etc.)?

                • Paul says:

                  I doubt it I would think that almost all if not all of these landowners bought the property knowing that the RR ROW was there, that means a few trains coming through (and any related stuff). They could try, that is what lawyers are for. The estimates for the bike trail use are in the hundreds of thousands of users per year (bit optimistic if you ask me). If that is right things are really going to change in their backyards!

                  • David P Lubic says:

                    I concur. The reason is that the easement agreements say “railroad.” They don’t say “corridor,” they don’t say “trail.”

                    In fact, it might even be argued that a trail would cause problems even if the railroad were kept, which I think will be needed to preserve the corridor.

                    What I’m referring to was a legal case in which a large railroad thought it had a good deal with a communications firm to lay a fiber optic cable along its right of way. Somehow the lawyers got in and the case went to court, and the final decision was that the fiber optic cable, which was for common carrier use and not primarily for railroad use, was a NEW use of the right of way, and that the easement owners should get paid for this NEW use. A fellow commenting on this in another forum, and who owned some of the property involved, said the payment came to something like 90 cents per foot. That’s a bit of money at 5,280 feet per mile on a system that’s 35,000 miles long! It would still be a pretty bit even if only half of that was easements!

                    Would snowmobiles and bikes on the railroad constitute a new use? How hungry are some other lawyers? How much do the property owners like money?

                    All this backs up what I’ve expressed earlier–the easiest, cheapest, lowest risk means of keeping the corridor intact and open is to keep that railroad and support it.

                    • Boreas says:

                      But this doesn’t address the point I made about a sudden increase in usage along the southern section that has been nil over the last 50 years or so. Wouldn’t that be considered a change in usage as well? 2-4 slow trains/year is a lot different than 2-4 faster trains daily.

                    • David P Lubic says:

                      A lot of railroads are built on easements; one fellow around here suggested they might make up as much as 85% of the national railroad mileage.

                      What you say has come up when people started complaining about increased rail traffic as the rail system has gradually revived itself over the last 25 years or so.

                      There is a story about how someone in the south bought a house twenty years before. . .the railroad that ran behind it operated perhaps 4 to 6 trains daily, if that much. The agent told the purchasers they wouldn’t see any more than that. At the time he said that, a lot of people would have thought that.

                      But diesel fuel went to over $4 per gallon, there were additional rules put in place to make sure drivers were better rested, and the railroad itself had a more aggressive management. That little railroad saw its traffic boom, and I understand, at the time, that it was adding a second track.

                      The same thing is going on in Florida, where a railroad there is going back into the passenger service, is building new stations in several places (among them Miami), and it’s looking at increased freight traffic. It has a lot of people with country clubs on the route up in arms, but there’s nothing they can do. . .and heaven knows they’ve tried enough, with lawsuits and things. . .turns out the railroad comes under Federal jurisdiction, and it’s following the requirements to relay its second track (taken up in the 1960s, and being replaced now).

                      That bunch was really funny, complaining about where they were going to put the second track. One fellow even had photos of the line. . .and several had bridges in them, with the space for the second track clearly visible.

                      I have a railroad right down the street from me that used to run three times per week. A change of ownership and a more aggressive management has resulted in traffic of up to eight trains per day!

                      The good thing for your area is I don’t see that level of traffic for some time. You’ll get a couple of passenger trains per day, and maybe an occasional freight train if that picks up. That’s a lot less than anything I’ve spoken of, and I would take issue with anyone who would complain about a traffic level that light.

                      I’ll mention one other thing, and that is that a railroad had to be legally abandoned. That’s never been done, the line has either been “out of service,” and in more recent years has been in service on what is called “exempted” track (not usable for passenger trains). It’s been in use for equipment moves to and from the north end of the line.

                      More trains, in other words, is not a change of use.

                      One big difference here is the ownership of the line, which is the State of New York. The state could decide the railroad was a nuisance and force closure and abandonment. . .but in doing so it loses the corridor because of those easements. That’s just not smart at all, even if you don’t like trains.

  6. David P Lubic says:

    James Sanchez had this comment on an earlier story here, and in my opinion it’s worth some more exposure.

    James Sanchez says:
    March 31, 2017 at 11:08 pm
    They should study what has been done in Jim Thorpe , Pennsylvania. They have a hugely popular rail with trail recreational corridor. Tourist from all over the world come to ride the trains, hike, camp and bike, there is also river rafting, many interesting historic sights to visit, great shops and restaurants. Some of the trains allow bicyclists to bring their bikes. Everyone is served, The train buffs, families, history buffs, tourists and locals all benefit. Do not stupidly rip up a railroad, that could be a great economic tool for your region.

    David P Lubic says:
    April 1, 2017 at 9:31 pm
    Thank you, James, and what you have to say could be summarized in the old sentence, “Don’t put all your eggs in one basket.”

    What you describe at Jim Thorpe is a tourist economy with considerable diversity. It has hiking, camping, rafting, history, and the railroad. The railroad even ties in with biking (taking bikes on trains), history, and may well tie in with some of the other activities, too.

    About the only thing missing that’s also in the Adirondacks would be snowmobiling, and that’s more to climate and location than anything else. . .and it looks like between climate change and possibly the expense of sleds, winter sports are taking a hit, and snowmobiles may–may–eventually be on the way out.