Tuesday, March 21, 2023

APA-DEC Take A Bold Stand To Deny Reality

The Adirondack Park Agency (APA) and Department of Environmental Conservation (DEC) have teamed up to formally interpret an important guideline in the Adirondack Park State Land Master Plan (Master Plan) that deals with the mileage of roads allowable in Wild Forest areas of the Adirondack Forest Preserve. This is a high stakes action by these agencies because of the potential to significantly expand the mileage of roads open to motor vehicles in all corners of the Forest Preserve.

There is no greater impact to a wild area than a road. From the fact that motor vehicles travel on roads at high speeds to the fact that roads are conduits for invasive species, the impacts of roads are undeniable. Roads change and fragment forest habitats, impact wildlife travel pathways, and impact streams, rivers, and wetlands that they cross and border. They are also extremely expensive for the DEC to maintain and repair.

The APA-DEC have been working for the last nine months to formally interpret Wild Forest Basic Guideline 4 in the Master Plan. This is the clause in the Master Plan that caps the allowable road mileage in the Forest Preserve. Wild Forest Basic Guideline No. 4 states:

Public use of motor vehicles will not be encouraged and there will not be any material increase in the mileage of roads and snowmobile trails open to motorized use by the public in wild forest areas that conformed to the master plan at the time of its original adoption in 1972. (p. 36)

In hearing materials provided to the public last summer, the APA wrote: “The interpretation of Basic Guideline No. 4 will establish a baseline for road mileage on Wild Forest classified lands. The interpretation of this guideline of the Adirondack Park State Land Master Plan will better inform and support the development of Unit Management Plans (UMPs) that conform with the Adirondack Park State Land Master Plan.”

DEC estimates that the current mileage of roads in Wild Forest areas in the Adirondack Park is 206.6 miles, and that Wild Forest road mileage in 1972 was 211.6 miles. These mileage estimates do not include State administrative roads which are maintained by DEC but are closed to public use. In addition, the mileage estimates do not include roads that were once in Wild Forest but have been reclassified to Intensive Use.

One thorny issue for the APA-DEC is how to deal with roads that have been opened to members of the public under special permits for access with motor vehicles. DEC Commissioner Policy 3, Motorized Access Program for People With Disabilities (CP-3), adopted in 1997, established a process for qualified disabled individuals to receive permits, called CP-3 permits, for special access to roads on the Forest Preserve that are closed for motor vehicle use to other members of the public.

The CP-3 permit program was a key element of the Galusha case legal settlement in 2001. Galusha was a federal court case brought under the Americans With Disabilities Act (ADA) in which plaintiffs alleged that they had been discriminated against in violation of the ADA and sought motor vehicle access to various locations in the Adirondack Forest Preserve. The case was settled with the filing and approval by the presiding judge of a “Consent Decree.” The two organizations that merged to form Protect the Adirondacks were part of that settlement and I was involved in the settlement discussions.

The Galusha settlement enumerated a wide range of ways that the DEC would provide greater opportunities for disabled individuals to access and enjoy outdoor recreation on all State lands. Motor vehicle access under the CP-3 permit program was one part of a large array of different access programs. The total mileage of Adirondack Forest Preserve roads open to CP-3 permit holders, including those opened pursuant to the Galusha settlement, is estimated at 36.7 miles.

In the last three APA Board meetings, in December 2022, February and March 2023, the APA Board floundered in its discussions on how to interpret Wild Forest Basic Guideline 4. The Board has been all over the map. One APA Board member was adamant that none of the mileage of roads open to CP-3 permit holders should be counted when determining the current Wild Forest road mileage. Another Board member wanted to include the CP-3 roads, but not the CP-3 roads opened pursuant to the Galusha settlement. It was clear based on questions and comments from other Board members that several had no clear understanding of either CP-3 permit program or the Galusha settlement. One Board member asserted that CP-3/Galusha road mileage should be counted, but this member’s opinion was quickly swatted down by other Board members. Some Board members claimed, incorrectly, that the Galusha settlement mileage could not be counted because the Consent Decree eliminated DEC’s discretion to open or close roads covered by the Decree.

Unfortunately, the APA and DEC staff failed to provide any meaningful historical evidence or legal analysis to assist the Board’s deliberations. Protect the Adirondacks submitted a legal analysis on this issue to the APA Board before its last meeting, but it appeared that few on the Board had read it.

Most disturbing in these meetings was the seeming commitment of both key APA Board members and the leading staff at the APA and DEC to deny reality. In my experience, nothing good comes about when state agencies deny reality.

The floundering stems in part from different ways that APA Board members chose to interpret the definition of a “road” in the Master Plan, which is defined as:

an improved or partially improved way designed for travel by automobiles and which may also be used by other types of motor vehicles except snowmobiles, unless the way is a designated snowmobile trail; and is,

  • either maintained by a state agency or a local government and open to the general public;
  • maintained by private persons or corporations primarily for private use but which may also be open to the general public for all or a segment thereof; or,
  • maintained by the Department of Environmental Conservation or other state agency and open to the public on a discretionary basis. (p 20)

The confusion for the APA-DEC is found the phrases “open to the general public” and “open to the public on a discretionary basis.” APA-DEC leaders and key staff maintain that, somehow, disabled individuals who obtain CP-3 permits suddenly lose their status as members of the public. Neither agency has provided any legal support for this claim because there is none. Under the APA-DEC rationale, any person who buys a hunting or fishing license is no longer a member of the public, which is patently absurd.

Let’s look at CP-3, a policy that was established by DEC in 1997 in order to “clarify the authority of the Department . . . to issue . . . permits . . .  to qualifying people with disabilities to allow them motor vehicle access to certain specified State lands under the Department’s jurisdiction, thereby facilitating such access.” (p 1) Click here for a list of roads opened across the state. The Policy specifically recognizes that, on Forest Preserve lands, “the Department must comply with the directive in Article 14 of the New York State Constitution,” the famed Forever Wild clause. CP-3 also specifically recognizes that issuance of CP-3 permits is constrained by the Master Plan, which places “restrictions on motor vehicle access into the Forest Preserve.” Thus, CP-3 explicitly acknowledges that its permit system and road management components are subject to the legal constraints imposed by Article 14 and the Master Plan.

The DEC’s program for providing access to DEC-administered lands to persons with disabilities is set forth in CP-3 as follows:

A qualified person with a certified disability who wants to access State land by a suitable motor vehicle . . . may do so only through the authority of a [CP-3] Permit . . . . On lands administered by the Department, a suitable type of motor vehicle shall be allowed to provide motor vehicle access for qualified people with disabilities to operate on designated roads, trails and geographical areas where, in the opinion of the Department with comments from the public where appropriate, the use of such motor vehicles will not have a deleterious effect on the trail, road or geographical area, the land’s natural resource values or the experience of other users. Such designation and use must be consistent with current law, including the Environmental Conservation Law, the State Land Master Plan for the Adirondack Park or Catskill Park, as the case may be, Department rules and regulations, a Unit Management Plan for the area, and an administrative directive consistent with current law, and must not endanger the safety and welfare of the general public. (p 4) (emphasis added).

CP-3 makes clear in plainly stated language that motor vehicle use on Forest Preserve land under this policy is subject to, and must be consistent with, “current law,” including the Master Plan, where such uses will occur in the Adirondack Park. CP-3 further states that “Executive Law 816(1) provides that [the Master Plan] ‘shall guide the development and management of State lands in the Adirondack Park’ [and] the Master Plan therefore has the effect of law.” (p 7)

Thus, any road open to motor vehicle use under CP-3 must comply with the Adirondack Park State Land Master Plan, including the limits on Wild Forest road mileage in Basic Guideline 4.

Let’s look at the Galusha settlement. Contrary to statements made at recent APA Board meetings, the Galusha “Consent Decree” did not “order” DEC to open certain roads in the Adirondack Park to motor vehicle use. Based on the erroneous belief that the Consent Decree ordered DEC to open certain roads regardless of State constitutional or statutory restrictions, some APA Board members incorrectly claimed that the Consent Decree supersedes those restrictions. In fact, the Decree makes crystal clear that the process of opening roads to CP-3 permit holders would have to comply with both State constitutional and statutory restrictions.

The Galusha Consent Decree only required DEC to (1) propose amendments to certain existing Unit Management Plans (UMPs) allowing access to specific areas under the Department’s CP-3 program and (2) keep certain roads already open to CP-3 use open for such use “subject to final approval in the UMP process.” (p 6-8). In fact, far from “ordering” DEC to open certain roads for CP-3 use regardless of State restrictions, the Consent Decree recognized that some roads listed in the Decree would not be approved at the conclusion of the UMP review process. This is made clear by the fact that the Decree included alternative procedures to follow “in the event that any road [proposed for CP-3 use] is not approved through the UMP process.” (p 8)

Significantly, no part of the Consent Decree excludes or exempts any of the proposed CP-3 roads from applicable legal constraints, including those imposed by the Master Plan. In fact, the Decree recognizes that DEC and APA “are charged by Article 14 of the New York State Constitution, statue, regulation and the Adirondack Park and Catskill Park State Land Master Plans to act as stewards and, in the case of DEC, land manager for the Forest Preserve within the constraints of the New York State Constitution Article XIV’s “forever wild” provision and the SLMP classification system and to act in accordance with all applicable state and federal law.” (p 2)

Thus, the roads approved for use by CP-3 permit holders pursuant to the Galusha settlement must comply with Article 14 and the Master Plan.

Think about it. Does anyone truly believe that the environmental groups involved in the Galusha settlement would have signed off on exempting motor vehicle use on Forest Preserve lands from compliance with Article 14 or the Master Plan? Does that idea make any sense?

Because CP-3 roads, including all roads opened to CP-3 permit holders pursuant to the Galusha Consent Decree, meet the Master Plan’s definition of a “road,” all existing CP-3 road mileage on Wild Forest lands in the Adirondack Park must be included in the APA’s assessment of whether there has been a material increase in road mileage on Wild Forest lands since 1972.

One more point: despite the APA Board’s floundering in three meetings over questions that plainly require a legal analysis, the legal staffs at DEC and APA have failed to provide any legal input to the Board on these questions. It is perplexing why the APA leadership continues to operate in a legal vacuum where serious misinterpretation of applicable law results in misguided opinions and foolish options being tossed around. This is not a recipe for the APA Board arriving at a legally defensible decision.

In my experience, when state agencies deny legal realities, the outcome is never good.

The APA Board ended its meeting with the approval of a new public comment period for a fourth alternative for its formal interpretation of Wild Forest Basic Guideline 4 that reads:

The current estimated non-CP3 mileage of roads in lands classified as Wild Forest, 206.6 miles, does not constitute a material increase in road mileage since 1972, nor would increases of mileage up to and including the 1972 estimated mileage of 211.6.

The public is welcome to submit public comments here until April 17.

The new Alternative 4 is legally flawed because it excludes the mileage of CP-3 roads from its tally of existing road mileage. Because of that impermissible omission, Alternative 4 mistakenly concludes that there has been no material increase in road mileage on Wild Forest lands since 1972. Thus, Alternative 4, and any other alternative that does not include CP-3 road mileage in the tally of existing road mileage on Wild Forest lands, violates the Adirondack Park State Land Master Plan.

Because CP-3 roads, including all roads opened to CP-3 permit holders pursuant to the Galusha Consent Decree, meet the Master Plan’s definition of a “road,” all existing CP-3 road mileage on Wild Forest lands in the Adirondack Park must be included in the APA’s assessment of whether there has been a material increase in road mileage on Wild Forest lands since 1972. Alternative 4 above is clearly flawed.

The APA and DEC need a course correction on this matter.

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Peter Bauer is the Executive Director of Protect the Adirondacks. He has been working in various capacities on Adirondack Park environmental issues since the mid-1980s, including stints as the Executive Director of the Residents' Committee to Protect the Adirondacks and FUND for Lake George as well as on the staff of the Commission on the Adirondacks in the Twenty-First Century. He was the co-founder of the Adirondack Lake Assessment Program (ALAP) in 1998, which has collected long-term water quality data on more than 75 Adirondack lakes and ponds. He has testified before the State Legislature, successfully advocated to pass legislation and budget items, authored numerous articles, op-eds, and reports such as "20% in 2023: An Assessment of the New York State 30 by 30 Act" (2023), "The Adirondack Park and Rural America: Economic and Population Trends 1970-2010" (2019), "The Myth of Quiet, Motor-free Waters in the Adirondack Park" (2013), and "Rutted and Ruined: ATV Damage on the Adirondack Forest Preserve" (2003) and "Growth in the Adirondack Park: Analysis of Rates and Patterns of Development" (2001). He also worked at Adirondack Life Magazine. He served as Chair of the Town of Lake George Zoning Board of Appeals and has served on numerous advisory boards for management of the Adirondack Park and Forest Preserve. Peter lives in Blue Mountain Lake with his wife, has two grown children out in the world, and enjoys a wide variety of outdoor recreational activities throughout the Adirondacks, and is a member of the Blue Mountain Lake volunteer fire department.Follow Protect the Adirondacks on Facebook and Threads.




22 Responses

  1. Ryan says:

    It doesn’t matter if there has been an increase in mileage. Was matters is mileage per given area. If we’ve doubled the acres of protected forest preserve since 1972 then the total road mileage allowed doubles as well. Any other interpretation belies common sense and ar is at cross-purpose to the rule. Interpreting it the way Peter wants to would discourage adding additional land to the forest preserve and this is not the intent.

    • Rob says:

      Peter wants to see absolutely no changes made to the park. Doesn’t matter if it limits people being able to use the park. Just leave it as it is and he will be happy.

      • Craig says:

        It seems like this is a logical position, but it seems like it’s in conflict with existing DEC and APA regulations. Do you think the APA should have this much power?

    • Dana says:

      Ryan,

      That is perfectly logical, but it simply isn’t how the Act was written – hence, the discussion we are having now.

  2. Rob says:

    Oh bo this is going to be good. I’m waiting for the day that the APA says unless you’re driving an electric vehicle you are not welcome to enter the Adirondack Park.

  3. William says:

    What I take away is the goal is to make vast expanses of public property, (in a park no less) completely inaccessible for people to enjoy. We are not talking about putting Route 73 through the preserve. A gravel road does not impact wildlife in anyway. The Blue Mountain Road between St Regis Falls and Paul Smiths is a perfect example. Greater access not only provides more opportunity for hiking, fishing, kayaking and hunting, it will alleviate the pressure on the spots that are open to it.

    • william hill says:

      We all know if Bauer & Co. could get it through, they would close every road on state lands. Access to recreational opportunities means nothing to them. Let’s keep our fingers crossed that common sense prevails in this matter.

    • Boreas says:

      All public property is not governed by the same restrictions. Most of us realize the Forest Preserve has more protection than other state lands because of Art. 14. If lands are going to be added to the FP, it should not be automatically assumed vehicular access will be provided. Many parcels added over the years do not even have roads anywhere near them.

      Gravel roads do indeed impact the ecology and wildlife through the corridor. Roadkill – not only of mammals but many other vertebrates and invertebrates – indeed happens. Openings through a forest are also corridors for spread of invasive species. Road noise, human activity, and even dust/pollution all have impact on wildlife.

      It can be argued that Art. 14 is no longer relevant or applicable. It can also be argued it is more important now than ever before, given the state of wild lands around the globe. But if change is to come WRT the FP overall policy of protection, it needs to be done with constitutional amendment(s), not the ever-changing direction of political and legal winds.

    • Craig says:

      Clearly Peter and others, myself included, would like to see motorized vehicles limited. Reading the article, Peter makes some pretty strong legal arguments that I don’t see addressed in the comments. I suspect that without some better law-based reasons, it’s likely that this matter could end up in court (again), and unless the access community wants to lose (again), they would be wise to address the legal matters instead of simply stating personal opinions.

      • Craig says:

        Note: by limited I don’t mean eliminated.

        • Tom Paine says:

          Please, the ultimate goal is the complete elimination of all user groups you dislike from the park. In order to create your utopian dream. People have opinions. Sorry if you dislike their opinions of the author. And yes it will end up up in court at that time lawyers for all sides will be present.

          • Craig says:

            Ok, now it make sense, thanks for explaining it so clearly. I based on what you say, I will now believe that everyone who supports some limits on roads is a utopian who wants to exclude non-utopians from the park. How could I have missed such an obvious conclusion before?

  4. Tom Paine says:

    And what about the roads and right of ways that were illegally confiscated and closed in the park by the state as we have seen with the McCulley vs NYSDEC case? One has to believe there are far more that were illegally taken from the Adirondack towns, villages and counties to satisfy a certain few. Before any further policy changes, a complete audit of all roadways, right of ways in the park to determine if they were legally confiscated and closed by NYS should be conducted by the NYS Attorney General’s office.

    • Dana says:

      I would add to that all roads and trails that were BUILT/UPGRADED/MAINTAINED illegally by DEC. Illegal is illegal, right?

  5. Charlie Stehlin says:

    william hill says: “We all know if Bauer & Co. could get it through, they would close every road on state lands. Access to recreational opportunities means nothing to them.”

    It seems to me he’s trying to protect what you seem to have a great admiration (?) for william, maybe in ways varying so far as usage is concerned, but admiration nonetheless……except he has future generations in mind whereas you may not.

  6. Charlie Stehlin says:

    William says: “A gravel road does not impact wildlife in anyway.”

    This is outright fake news! It goes against science outright!

  7. Charlie Stehlin says:

    Boreas says: “It can also be argued it is more important now than ever before, given the state of wild lands around the globe.”

    > Think acid rain Boreas! Adirondack lakes dying due to pollution from a thousand miles away. Nothing is safe in this ever-shrinking world. There’s less and less of wildness to buffer viruses, or who knows what, which may come along, even if it comes from across the globe. As Peter (and you) say: “roads are conduits for invasive species”. Less and less of wildness, or buffer zones, opens up more conduits. This isn’t rocket science! De Witt Clinton, not just a politician, but a naturalist too, knew this over 200 years ago, as did many others. The history is out there. You can find the same in the 1700s literature. Nothing is new under the sun except for disillusioned humans whose appetite is voracious….to the detriment of all other lifeforms, which has been a reality unfolding before our eyes for too long now, yet we don’t see it!

  8. Todd Eastman says:

    Ironically those desiring better motorized access, apparently want to visit the wild places their desired roads would make less wild.

    If you want better motorized access, go elsewhere; don’t destroy the Adirondack Park because you don’t want to walk…😎

  9. Bobojones says:

    Why is road mileage issue coming up now? It wasn’t an issue when the state acquired the finch lands an added over 17 miles of roads to the forest preserve. In fact, I believe it was Bauer, who supported a drive up wilderness by opening the gulf Brook Road to public motor vehicle access into Boreas pond. Why wasn’t road mileage made an issue then? So again, what has caused this issue to come to the forefront now? Baauer talks a lot about the Galusha consent decree and what was the basis of that settlement. One critical point for the plaintiffs was that CP3 permit holders would not be considered part of the general public. The plaintiffs did not want to see any existing roads open to the public closed due to CP-3 openings. That is why new corridors that were not public roads needed to be found as CP-3 candidates. These new corridors were primarily administrative roads that were specifically not open to the public. Of course those agreements in the consent decree, as so many other previous promises, seem to be forgotten and we will now be closing public roads in order to accommodate future disabled access.

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