Tuesday, March 6, 2018

Gibson: DEC Should End Uncertainty of Old Mountain Road

old mountain roadThis past week, the Appellate Division of State Supreme Court ruled that the Old Mountain Road that runs through the public’s Sentinel Wilderness between Keene and North Elba remains a town road and is not abandoned by either town. The court thus overturned a decision by former Department of Environmental Conservation Commissioner Joe Martens in 2016 and affirms an enforcement proceeding decision by former DEC Commissioner Pete Grannis in 2009.

It’s been a long, bumpy and controversial legal ride to this point. What is so perplexing about it is that the NYS Department of Environmental Conservation could have prevented it from ever happening if the DEC had asserted certain legal authority it has been wary of asserting. In a few places where it’s obviously warranted, DEC should start to employ that legal authority again.

I won’t dive deeply into the detail of the laws and complex legal provisions of road abandonment. Suffice it to say that DEC Forest Preserve attorneys have found it very trying to convince courts, local and state, that old 19th century, once useful roads for oxcarts, etc. which are fully within the “forever wild” Forest Preserve are lawfully abandoned and should be allowed to revert to a trail.

DEC regulation prohibits public operation of motor vehicles within the Forest Preserve, but that regulation has a number of exceptions including one for roads under the jurisdiction of a town highway department or NYS DOT, or where a legal right-of-way exists for public or private use.

The Appellate Court just ruled that DEC Commissioner Grannis’ 2009 decision on an administrative enforcement proceeding was final and controlling, and that Commissioner Martens’ subsequent ruling was powerless to overturn a prior decision that had such legal finality to it. Grannis affirmed a DEC administrative law judge who, after an exhaustive investigation, found that the Old Mountain Road was never affirmatively abandoned by the towns of Keene and North Elba, nor was it abandoned by dis-use, as defined. Further, that the road, more a track, is still under the jurisdiction of local highway departments and, further, that a right-of-way exists between the two towns.

The only effect of the Grannis decision, just affirmed by the Appellate Court, was that the enforcement case brought by DEC against an individual for driving a snowmobile on Old Mountain Road in violation of DEC Forest Preserve regulations was dropped.

It was pointed out by the administrative law judge and by Grannis that there is considerable local liability and cost involved in bringing what is a cross-country ski (part of the Jack Rabbit Trail), rock climbing and hiking route through the Sentinel Wilderness up to public road standards. Neither town has maintained it as a road for many years. Still, the fact of non-maintenance is irrelevant, said last week’s Appellate Court, compared with the State’s lack of evidence that the old road was abandoned under the law.

The towns still have the authority to regulate all-terrain vehicle and snowmobile use on Old Mountain Road so that such use does not erode the tranquility and wild solitude that the public has come to expect here. There’s no signal I’m aware of that these towns now want to destroy that tranquility or maintain this route to highway standards. The beaver dams and impoundments and the high rock escarpments along this route so familiar to Keene and North Elba residents and visitors are impressive. This natural scene and its ecological values could be seriously jeopardized by the frequent intrusion of motorized vehicles here.  This quiet, natural route through the wilderness also has an important recreational, spiritual and economic benefit for the towns, which doubtless they have long recognized.

In a footnote to its recent decision, the Appellate Court stated:

“Our holding does not necessarily leave DEC without recourse…Without taking any position on that issue, we note that Highway Law § 212 vests DEC with the authority to order the abandonment or discontinuance of a road passing over or through lands within the Forest Preserve whenever a state purpose is endangered by such road.”

From the outset, the state could have utilized this legal tool to formally and finally end Old Mountain Road’s status as a local road or highway because the lands beneath and on either side of the old road are fully within the NYS Forest Preserve. The use of Section 212 would also avoid the considerable local government expense needed to maintain to drivable, highway standards what has long been a wild, rugged foot, snowshoe and ski path through the wilderness. As mentioned, the towns could also be exposed to liability if they do not maintain the route to highway standards.

So, Old Mountain Road still faces an uncertain future. Given its popularity for muscle-powered recreation, the towns are not likely to want to change its character or to spend a lot of money to upgrade it to highway standards. Yet, motor vehicle enthusiasts will doubtless be encouraged by this court ruling. The baton is now passed to DEC Commissioner Seggos to use Section 212 of the State Highway Law to end the current uncertainty and formally abandon Old Mountain Road as a highway wholly within the Forest Preserve in order to preserve the route’s natural resources, scenic beauty and wild character for the benefit of local residents, visitors and businesses that depend upon them.

Map of Old Mountain Road courtesy DEC.

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David Gibson

Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for nearly 25 years, much of that time as Executive Director of the Association for the Protection of the Adirondacks and then as first Executive Director of Protect the Adirondacks.

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 a partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.

10 Responses

  1. Paul says:

    ” The baton is now passed to DEC Commissioner Seggos to use Section 212 of the State Highway Law to end the current uncertainty and formally abandon Old Mountain Road as a highway wholly within the Forest Preserve”

    The town apparently has jurisdiction not the state, you are splitting hairs. Same goes for many other roads apparently illegally closed by the DEC. That isn’t a “motor vehicle enthusiast” issue its a legal one. They can all be closed if the town chooses to do so.

    Lots of DEC access roads are not up to DOT standards who wants that? Would look terrible.

  2. adkDreamer says:

    Is this 2018 case of the Appellate Division of State Supreme Court available online and if so do you have the link?

  3. Tony Goodwin says:

    What apparently makes this road legally unique is that it was formally established by the NYS Legislature as a part of the old Northwest Bay Road. This legislative action makes that section a “road by law” rather than just a “road by use” – the category for most more recent state and town roads. As a result, more than simple lack of maintenance for “ordinary vehicular travel” is now required for this road to become “abandoned”.

    Across the Adirondack Park, most, if not all, roads originally created by the legislature as “roads by law” are now major thoroughfares where there is no argument about thier status. The realities of geography, however, dictated that the first road going west from Keene had to go by the higher and steeper pass west of Pitchoff Mt. because of the difficulties of constructing a road through the huge talus boulders lining the Cascade Lakes. Once those difficulties along the Cascade Lakes were solved with modern (1850s) explosives, that became the main route.

    So that is why we now have this 3.5 mile section of “road by law” that remains a town road. Ever since the original decision by the Administrative Law Judge, both towns have managed their respective sections for non-motorized use. For the most part, motorized interests have respected this.

    Yes, Section 212 of the Highway Law does give the DEC Commisioner the power to summarily declare this road abandoned. Fine, but that was the same statute used to declare Crane Pond Road as abandoned, and we all know how well that didn’t work out.

    So, while the current situation on the Old Mountain Road is not perfect, the emphasis going forward should, in my opinion, emphasize that any other long-abandoned town road that might be resurrected as a snowmobile/ATV trail does not have the unique legisltative status as the Old Mountain Road. That would hopefully prevent any further encroachments on the Forest Preserve.

  4. Tim says:

    The DEC needs better lawyers. It appears they also blew the Lake Placid-Tupper Lake rail trail. A perfect job for you, Tony.

  5. Edward Zahniser Ed Zahniser says:

    Thanks, David Gibson, for pointing out that commonsense application of Forest Preserve law itself would de-complicate such a decision and its ramifications, which are politically motivated and functions of a particular point in time, whereas the interests of the whole people of New York State obtain in perpetuity.

  6. Paul says:

    Dave, Certainly as far as the “old mt. road” goes there is no uncertainty. The appellate court has ruled.

    How that impacts other closed roads? There is some uncertainty there. But perhaps more clarity after this ruling.

  7. Boreasfisher says:

    What could be simpler? Yes, Please! Do the right thing Commissioner Seggos!

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