“They own the track so they believe they have the right to store their trains on their track in the Adirondacks. It is unsightly. It’s out of character with the Adirondacks. We don’t own the tracks. There’s a question as to what legal right we have to oppose it. But we oppose it one hundred percent and we are going to do everything we can do to stop the owner from storing the trains on those tracks.” – Governor Andrew Cuomo
So said Governor Andrew Cuomo to media gathered in Glens Falls last week concerning Iowa Pacific/Saratoga-North Creek Railroad (SNCRR) storage of old, supposedly cleaned tanker cars on rails in Minerva, Essex County, close to the designated “Scenic” Boreas River. The underlying land below and on either side of the tracks where tanker cars are being stored is “forever wild” Forest Preserve (Vanderwhacker Mountain Wild Forest).
Two summer ago, in the summer of 2015 the State and local governments raised the same objections about proposed storage of tanker cars with an unknown amount of petroleum product in them. SNCRR eventually backed off its plan. So, the State has had more than two years to perfect its objections in preparation for the possibility that SNCRR, in search of needed cash, would defy State and local objection and actually haul these old tanker cars into Essex County. Now, they have, with the added assurance that these cars are now inspected and found clean of old petroleum products. Governor Cuomo has said he is still unsure of his legal rights to stop this movement of tanker cars into the heart of the Adirondack Park and to remove those that are already stored on the tracks.
In order to “do everything we can” to stop this activity, Governor Cuomo has specific laws, regulations, procedural tools to shed light on this matter, and lots of sharp minds at his disposal. Adirondack Wild: Friends of the Forest Preserve and many others issued these recommendations to him in 2015, which were taken seriously at the time, so I thought I should reiterate and again recommend them to the Governor. This is not an exhaustive list and I am not an attorney. There may be other, equally or more potent legal tools at the Governor’s disposal not listed here.
- The Governor should immediately instruct his agencies to hold public hearings to gather information, facts and opinion from Iowa Pacific-SNCRR, a variety of affected local governments, a variety of State agencies, a variety of environmental points of view, the federal Surface Transportation Agency, and from regular citizens. The SNCRR action is a major new commercial and industrial activity sponsored by a private company on lands which are public lands (Forest Preserve) and, further north along these same tracks, more Forest Preserve bordered by private lands classified Resource Management, Rural Use and Industrial Use at the RR terminus at Tahawus.
- Both NYS Adirondack Park Agency and NYS Dept. of Environmental Conservation appear to have ample authority to convene such public hearings about a new, large, highly controversial land use and development project where public input could definitely have a bearing and shed new light on the matter. The action appears to be a Class A regional project for the APA because on the private land portion of the tracks the action may constitute a new junkyard according to N.Y. Exec. L. §810(f)(7) and §810(d)(17). Consequently, Iowa Pacific may need to apply for and obtain an APA permit for those portions of the oil car storage project occurring on private land.
- Until the permits are issued, the Governor and the agencies have the authority to ask SNCRR to cease and desist from bringing more tanker cars into the Park at this location. The DEC and the Attorney General could, if necessary, bring an enforcement action against the company.
- For DEC, the jurisdiction may be two-fold. The proposed storage of disused tank cars may be subject to DEC permit requirements as a solid waste management facility, where regulations define a “solid waste management facility” as including “storage areas or facilities,” “rail-haul facilities,” and “used oil storage” facilities. Accordingly, Iowa Pacific may need to apply for and obtain a DEC permit for its oil car storage activity.
- Secondly, for the DEC there is the not-so-small matter of possible illegal occupancy of public Forest Preserve along 13 miles of the track. The Governor should be aware of this history starting in 1942 when the United States seized the tracks and right of way to haul out titanium dioxide from Tahawus during the national emergency of World War II. While the federal ROW-easement was extended far into the 21st century (to the year 2062) and even though Iowa Pacific-SNCRR has obtained federal common carrier designation, the State of New York has a claim that under its laws of abandonment and termination of easements the purposes for which the easement was taken were extinguished, and that the railroad was effectively abandoned years ago. There is a heap of background information suggesting this is the case. If so, the lands revert back to pre-1942 ownerships, a combination of New York State and private owners. Governor Cuomo should fully explore this aspect of the matter during and after the recommended public hearings.
Photo of stored tanker cars, courtesy Protect the Adirondacks.