Almanack Contributor Phil Brown

Phil Brown

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.


Monday, August 2, 2010

The Cougar Question: Have You Seen One?

Several months ago, I confessed here on Adirondack Almanack that I once saw a cougar—or thought I did. I say “confessed,” because if you tell people you saw a cougar in the Adirondacks, some of them will look at you funny.

Others will tell you about their own cougar sighting.

I’m bringing up cougars again because the Adirondack Explorer recently received an interesting letter from Don Leadley, a longtime outdoorsman from Lake Pleasant. Leadley responded to an Explorer column written by our publisher, Tom Woodman, discussing our endless fascination with the possibility that cougars may be living in our midst. » Continue Reading.


Monday, July 26, 2010

Local Economics: Confessions of a Granola-Eater

Yes, I eat granola.

Ergo, I am a granola-eater, and in the view of some people, that makes me a cheapskate hiker.

Over the years I’ve heard a few local politicians complain about “granola-eaters” who gas up their cars outside the Park, drive to the Adirondacks for a hike or canoe trip, and return home without spending a dime.

I’ve always been puzzled by this attitude.

First, it’s wrong. OK, many hikers and paddlers are not lavish spenders, but some of them are and most of them do spend money during their Adirondack sojourns. And there are a lot of them. Their dollars add up. How do you think EMS in Lake Placid, Mountainman in Old Forge, the Mountaineer in Keene Valley, and Hornbeck Boats in Olmstedville stay in business?

Second, it’s wrongheaded. For the sake of argument, let’s assume that hikers, paddlers, and other backcountry enthusiasts don’t spend money in the Adirondacks. Whose fault is that? Isn’t it up to entrepreneurs in the Park to figure out how to pry cash from their tight fists? If these people aren’t spending money, I assume it’s because businesses are not offering goods and services they desire.

In fact, as already noted, there are many businesses and outfitters in the Park that cater to backcountry enthusiasts. I can’t help noticing that many of them are run by transplants. John Nemjo, for example, grew up in New Jersey and started Mountainman after moving to the Adirondacks in 1993. It’s now one of the largest canoe-and-kayak dealers in the Northeast.

Money can be made off hikers and paddlers, but first you have to see them as potential customers, not as tightwads.

If nothing else, you can sell them granola.

Photo of a granola-eater by Susan Bibeau.

Phil Brown is editor of the Adirondack Explorer newsmagazine.


Monday, July 19, 2010

Commentary: Finch Deal Would Help Newcomb

A few days ago I went paddling with two other guys in Newcomb. We started at Rich Lake and canoed through Belden Lake and Harris Lake to the Hudson River and then down the Hudson for a mile, turning around at the first rapid.

We took out at Cloudsplitter Outfitters, conveniently located at the Route 28N bridge over the Hudson. Click here for a detailed description of the route.

It’s a fun seven-mile excursion, but paddlers will have more to do in Newcomb if and when the state buys a tract of former Finch, Pruyn & Co. lands from the Adirondack Nature Conservancy. The purchase would lead to more tourism for Newcomb. » Continue Reading.


Monday, July 12, 2010

Forever Wild Outside The Adirondack Park

I recently did a paddling trip in the northern Adirondacks that had been on my bucket list for a few years. I launched my canoe in Hatch Brook and traveled downstream to the Salmon River and down the Salmon to Chasm Falls.

It’s a delightful trip, largely wild, with interesting scenery, lots of birdlife, and a great swimming hole. Click here for a detailed description, directions, and more photos.

One unusual thing about this excursion is that it begins inside the Adirondack Park and ends outside of it. Of course, there is no sign on the river–either man-made or natural–to let you know when you leave the Park. The trip reminds us that wildness does not end at the Blue Line.

As a matter of fact, two state commissions on the Adirondacks (in 1971 and 1990) recommended extending the Park’s boundary northward to include the tract that I paddled through. But that didn’t happen. Consequently, when I crossed the Blue Line I simultaneously crossed the boundary between the Debar Mountain Wild Forest (part of the Adirondack Forest Preserve) and the Titusville State Forest (not part of the Forest Preserve).

Most people familiar with Adirondack history know that Article 14 of the state constitution prohibits cutting trees in the Forest Preserve. Logging, however, is allowed on State Forest lands.

Fewer people realize that some of the Forest Preserve lies outside the Park.

Article 14 declares that “the lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands.” And an 1885 law defined the Forest Preserve as “all the lands now owned or which may hereafter be acquired by the State of New York, within the counties of Clinton, excepting the towns of Altona and Dannemora, Essex, Franklin, Fulton, Hamilton, Herkimer, Lewis, Saratoga, St. Lawrence, Warren, Washington, Greene, Ulster and Sullivan.” (The lands in the last three counties are in the Catskill Forest Preserve.)

Reading Article 14 and the 1885 law together, you might reasonably conclude that nearly all the state lands in eleven northern counties belong to the Adirondack Forest Preserve.

But you’d be wrong, according to Norman Van Valkenburgh, the author of The Forest Preserve of New York State in the Adirondack and Catskill Mountains.

Van Valkenburgh tells me that a constitutional amendment in 1931 permitted the state to acquire lands outside the Park in the Forest Preserve counties for reforestation. These lands can be managed for timber and wildlife habitat.

Yet the lands outside the Blue Line that the state owned prior to the amendment are part of the Forest Preserve. The Temporary Study Commission on the Future of the Adirondacks estimated in 1971 that there were 12,867 acres of Adirondack Forest Preserve outside the Park (not including lake and river beds).

Like the Preserve inside the Park, these lands must be kept forever wild and cannot be logged. Van Valkenburgh said this requirement leads to a legal anomaly when a piece of orphan Forest Preserve lies within a State Forest tract. Even if all of the surrounding land is logged, the Forest Preserve parcel must remain untouched.

If the Adirondack Park boundary were expanded, would the State Forest lands automatically become part of the Forest Preserve?

“That’s a good question,” Van Valkenburgh said. “I don’t know, but I think not.”

Van Valkenburgh noted that the State Forest lands were purchased with a specific purpose in mind and so may be exempt from Article 14’s forever-wild mandate.

This interpretation seems to jibe with the view of the Commission on the Adirondacks in the Twenty-First Century. In its 1990 report, the commission recommended not only extending the Blue Line, but also amending the constitution to prohibit “the continued management of existing reforestation areas” added to the Park.

The commission wanted to extend the Blue Line to the north to encompass all of the towns of Bellmont, Brandon, Dickinson, Peru, and Saranac; part of the town of Malone; and Crab Island in Lake Champlain. It argued that doing so would protect extensive forestlands and farmlands on the Park’s border.

Do you think extending the Park’s boundary is a good idea?

Photo of Salmon River by Phil Brown.

Phil Brown is the editor of the Adirondack Explorer newsmagazine.


Wednesday, July 7, 2010

Phil Brown: Paddling to Beat the Heat

Monday was hot, but I barely noticed. I spent most of the day paddling on Hatch Brook and the Salmon River in the northern Adirondacks.

When it’s too hot to climb a mountain, I often get out my canoe and take advantage of outdoor air conditioning: cool breezes blowing over the water. If the breezes falter, I can always jump in the water.

It looks like we’re in for a string of hot days this week. And no doubt we’ll have other scorchers in the weeks ahead. With that in mind, I’ve compiled a list of links to paddling stories from the Adirondack Explorer to help you beat the heat.

In the latest issue of the Explorer, Brian Mann writes about kayaking to the little-visited Schuyler Island on Lake Champlain.

In the May/April issue, I wrote about canoeing on the Deer River Flow, a scenic piece of flatwater north of Meacham Lake.

In an earlier issue, Publisher Tom Woodman described a trip down the Jessup River and Indian Lake.

Tom also has written about canoeing the West Branch of the Sacandaga, one of the best river trips in the southern Adirondacks.

Last year, Dick Beamish, the magazine’s founder, paddled up Lower Saranac Lake and down the Saranac River, nearly circumnavigating Dewey Mountain in the process.

If you’re into whitewater, check out Mal Provost’s suggestions for novice and intermediate river runs.

And if you’re still looking for other ideas, check out my Adirondack recreation blog, where I describe fourteen paddling trips–with more to come. Scroll down to find a list of all the trips in the right-hand column.

Just to give you a taste, here’s what I wrote about the Grass River Flow.

Phil Brown is editor of the Adirondack Explorer newsmagazine.

Photo of grass along the Salmon River by Phil Brown.


Monday, June 28, 2010

Wilderness on the Raquette River:Should Motorboats Be Banned?

Ah, the ideal Adirondack day: sunny, mild, few people, no bugs. These circumstances aligned the other day when I paddled from Axton Landing to Raquette Falls.

The six-mile trip up the Raquette River is one of the more popular flatwater paddles in the Adirondacks. (Click here for a description and photos.) Meandering upriver, you see lovely silver maples overhanging grassy banks, kingfishers darting across the water, common mergansers with their young in train, inlets that lead to hidden marshes. » Continue Reading.


Monday, June 21, 2010

Should Adirondack Scenic Railroad’s Tracks Be Torn Up?

We’re in a fiscal mess. State officials have talked about closing parks and campgrounds, Forest Preserve roads, and the Visitor Interpretive Centers in Paul Smiths and Newcomb.

But I haven’t heard them talking about shutting down the tourist train that runs between Lake Placid and Saranac Lake.

The state spends hundreds of thousands of dollars a year to keep the Adirondack Scenic Railroad in operation. The railroad operates two tourist trains: one out of Lake Placid and one near Old Forge. The latter accounts for the bulk of the railroad’s revenue. » Continue Reading.


Thursday, June 17, 2010

Phil Brown: Paddling Another Posted River

Over the past year, the Adirondack Explorer has published several stories on paddlers’ rights, including an account of a canoe trip on Shingle Shanty Brook through posted lands. As you can see from this earlier post on Adirondack Almanack, not everyone applauds our work.

We hope the stories will spur the state to clarify the legal status of Adirondack rivers. For the July/August issue of the Explorer, I paddled the Beaver River from Lake Lila to Stillwater, another stretch of river that passes through posted land. Click here to read the story.

The Beaver is shallower than Shingle Shanty, with many shoals and rapids. As a result, I had to get out of my canoe on several occasions to carry around obstacles or free the boat from rocks. I imagine the river would be even more boney in midsummer.

But that doesn’t mean it’s not “navigable-in-fact,” a legal phrase that describes waterways open to the public under the common-law right of navigation. The experts I spoke with said courts recognize that paddling sometimes requires portaging or lining a boat and that a river may not be navigable year-round. And the time I spent portaging or lining accounted for just a small fraction of the journey.

I’ll mention two other points in favor of the argument that the Beaver is navigable-in-fact.

First, this stretch of the Beaver connects two popular canoe-camping destinations in the public Forest Preserve. Thus, it is part of a canoe route from Lake Lila to Stillwater. Moreover, you could extend the route on both ends to create a multiday canoe expedition. You could start in Old Forge or Saranac Lake and paddle to Lila, thence to Stillwater, and then continue down the Beaver below Stillwater. If you’re looking at a hundred-mile trip, a few sections of shoals and rapids are not that daunting.

Second, the Beaver was used to float logs in the nineteenth century—which is evidence of the river’s navigability. Coincidentally, a week before my trip I received a letter from George Locker, a New York City attorney who canoed the Beaver a few years ago. In his historical researches, Locker found that William Seward Webb—the ancestor of the current landowners—asserted in 1893 that the Beaver was “a natural highway” for transporting logs.

“If the original Webb told a New York court in 1893 that the Beaver River was his commercial highway beginning at Lake Lila, then it is a settled matter that the Beaver River is navigable-in-fact and accessible to the public, no matter what any subsequent owner (Webb or not) may claim,” Locker wrote us.

Nevertheless, the landowner I spoke with contends the public is not allowed on the river.

Apart from the rapids and shoals, the legal ambiguity is probably enough to deter most paddlers from traveling down the Beaver.

The state Department of Environmental Conservation is talking with the owners of Shingle Shanty Brook. Let’s hope this will result in public access. Perhaps the department could talk to the Beaver’s landowners next.

Photo by Susan Bibeau: Phil Brown on the Beaver River shortly before crossing into private property.


Monday, June 7, 2010

Commentary: On Roads and DEC Conspiracies

I guess the conspiracy theorists were wrong.

When the state Department of Environmental Conservation (DEC) announced it would not open the dirt roads in the Moose River Plains Recreation Area, some in the blogosphere suggested that DEC was using the state’s fiscal crisis as an excuse to cut off motorized access to the Plains. Supposedly, DEC was in cahoots with environmental groups.

Of course, DEC has since announced that it will open most of the roads after all. It agreed to do so after local communities offered to share in the expense of maintaining the roads.

I do find it curious, though, that the DEC will keep closed the Indian Lake Road, which forms the border between the Moose River Plains Wild Forest and the West Canada Lake Wilderness.

Several years ago, I attended a meeting at which DEC discussed a proposal to close this five-mile road permanently to motor vehicles. The rationale for the closure was that it would safeguard the West Canada Lake Wilderness against motorized incursions and the negative impacts of overuse along the border.

Interestingly, DEC argued that the closure would be a boon for floatplane operators as it would make Indian Lake, which is located at the end of the road, an attractive destination for their customers. As long as people can drive to the lake, it makes no sense to fly there.

I need to clarify that we’re not referring to the big Indian Lake associated with the hamlet of the same name. The Indian Lake in the Moose River Plains is an eighty-two-acre water body on the edge of the West Canada Lake Wilderness Area. It once held brook trout, but acid rain killed most of the fish. DEC’s intention is to restock it with trout once the lake’s pH improves.

I don’t know what became of DEC’s proposal, but it seems like a good idea. A few years ago, I visited Indian Lake during a four-day backpacking trip from Forestport to Lewey Lake. Indian is a beautiful, wild lake, but its shoreline has been damaged by overuse. By closing the road, DEC would be limiting use and keeping out most of the litterbugs. In time, Indian Lake would recover its pristine appearance.

Incidentally, the purpose of my backpacking trip was to trace part of the proposed route of the North Country National Scenic Trail. When finished, this trail will stretch 4,600 miles from North Dakota to Crown Point. The trudge along Indian Lake Road was the most boring part of my trek. This section of the Scenic Trail would be more appealing if it were allowed to revert to a motorless pathway.

No doubt some people would oppose closing Indian Lake Road. If you’re one of them, let us know your thoughts.

Whatever you think of the proposal, it shows that DEC recognizes that environmental groups are not its only constituency. In this instance, the department was looking out for the interests of floatplane operators—just as it did during the controversy over Lows Lake.

Yes, DEC listens to environmentalists, but it also listens to pilots, hunters, fishermen, snowmobilers, business owners, and the list goes on. The department can’t please everyone all the time, least of all conspiracy theorists.

Photo of Indian Lake Road by Phil Brown.


Monday, May 31, 2010

Celebrating the Life of Clarence Petty

On Sunday morning, the Wild Center hosted a memorial celebration of the life of Clarence Petty, the ardent conservationist who died last fall at 104.

The Wild Center showed two films about Clarence. After a brunch, several longtime friends and colleagues spoke about Clarence’s passion for protecting Adirondack wilderness.

As serious as Clarence was about preservation, anyone who met him was struck by his sense of humor and friendly manner.

Clarence had lots of stories from his long, rich life. He spent the first years of his life in a squatter’s cabin on the Forest Preserve. He grew up in the tiny hamlet of Coreys on the edge of the woods, a virtual frontier in those days, and went on to become a manager in the Civilian Conservation Corps, a forest ranger, a state pilot, and an indefatigable defender of the Adirondacks.

Most of the speakers at the memorial celebration, such as Michael Carr, Barbara Glaser, David Gibson, and Peter O’Shea, had known Clarence for decades and regaled the audience with one humorous anecdote after another. I particularly enjoyed Carr’s story about the time Clarence mistakenly air-dropped a load of trout over a fisherman. Thinking he may have killed or injured the fellow, Clarence flew back over the pond and saw him raising his hands in thanks.

I didn’t know Clarence as well as those folks, but as the editor of the Adirondack Explorer, I had the chance to speak with him many times in the last decade of his life. Every two months, I interviewed him for a feature called “Questions for Clarence,” which the Explorer published from 2004 until Clarence’s death.

The questions covered just about every topic under the sun, but often I would try to get Clarence to reveal what bit wisdom he would like to pass on to posterity. He kept on returning to his faith in democracy. He believed that if the people were allowed to vote on the important issues facing the Adirondack Park, they would opt to protect it.

By “the people,” he meant the people of the whole state, since the Forest Preserve is owned by all of them. The difficulty is that many of the Park’s residents don’t like outsiders making decisions that affect their lives. Hence, the continuing animosity toward the Adirondack Park Agency.

To this, Clarence had an answer. He described the Park’s wild lands, especially the Forest Preserve, as “the magnet” that draws tourists to the Adirondacks. The more wildness that is preserved, the greater the appeal to tourists. And tourists are money.

In short, protecting the Park is good for the economy–and hence good for the people who live here.

Despite his best efforts, Clarence failed to convince everyone of that point of view. But the argument will be carried forth by those he did reach.

You can find out more about Clarence Petty’s life in this remembrance by Dick Beamish, the founder of the Adirondack Explorer.

Photo by Phil Brown: Clarence Petty memorabilia at the Wild Center.

 


Monday, May 24, 2010

Commentary: On Towers in Wilderness Areas

This month the Adirondack Park Agency board authorized its staff to solicit public comment on proposals to save the fire tower on Hurricane Mountain through a bit of legal legerdemain.

I understand the board’s motivation: the public wants the tower to stay. This has been amply demonstrated in letters, petitions, and comments at hearings.

But the solutions on the table are intellectually dishonest and make a mockery of the Adirondack Park State Land Master Plan. » Continue Reading.


Tuesday, May 11, 2010

Phil Brown: The Moose River Plains Conspiracy

The state Department of Environmental Conservation (DEC) is catching flak over its plan to close the roads in the Moose River Plains, and according to some conspiracy theorists, this is exactly what it wants.

The thinking goes like this: DEC must have known it would spark an outcry, so it must be hoping that the controversy will garner more money to keep the roads open.

However plausible this may be, it appears to be at odds with the other conspiracy theory to emerge since DEC announced its proposal last week. This one holds that DEC is using the state’s fiscal crisis as an excuse to shut the roads not just this year, but permanently—in deference to the wishes of environmental groups.

Both theories were raised in the public discussion that followed my posts last week (here and here) on the Adirondack Explorer website and on our publication’s Facebook page.

Of course, DEC says it’s closing the roads to save money—a necessity required this year by state budget cuts—but many people seem unwilling to take this explanation at face value.

That state officials always harbor ulterior motives seems to be embedded in the ideology among certain Adirondackers. Usually, they claim that DEC and the Adirondack Park Agency are in cahoots with environmental groups such as the Adirondack Council and Adirondack Mountain Club (ADK) and act against local interests.

I won’t dispute that officials sometimes do have hidden motives, but the idea that DEC and the APA merely do the bidding of the greenies is manifestly false.

For one thing, the Adirondack Council, ADK, and other environmental groups have taken DEC and APA to court on numerous occasions when they disagreed with the decisions of officialdom.

For another thing, both DEC and the APA have shown a willingness to bend the rules to give local residents what they want.

Take Lows Lake. DEC went to the mat to keep Lows Lake open for floatplanes even though the Adirondack Park State Land Master Plan had for years called for banning planes from the lake.

Take snowmobile trails. The State Land Master Plan says snowmobile trails must have the character of a footpath. Yet the DEC and APA approved guidelines that allow some snowmobile trails to be up to twelve feet wide, with most of the rocks removed to create a smooth surface.

Take fire towers. The State Land Master Plan calls for removing the towers from Hurricane and St. Regis mountains, but the APA board recently directed its staff to find a way to allow them to remain.

In short, DEC and the APA do not always take the side of the environmentalists. And they do try to appease local interests.

As a journalist, I’ve learned that you sometimes have to take what officials say with a grain of salt. So it can be a good thing when the public questions the motives of its government. But when people accuse the state of engaging in dark conspiracies whenever things don’t go their way, they poison the political atmosphere.

What is the evidence that DEC wants to permanently close all the roads in the Moose River Plains? Those who are making this claim should set forth their case. We’d all like to see it.

Photo by Phil Brown: the main road in the Moose River Plains.


Tuesday, May 4, 2010

Phil Brown on Climbing: To Bolt Or Not To Bolt

Last weekend, Josh Wilson led my friend Mike Virtanen and me up a historical rock-climbing route on Rooster Comb in Keene Valley. Fritz Wiessner, one of the best climbers and mountaineers of his era, pioneered the route in 1949 with Jim Goodwin, his frequent partner on Adirondack outings.

The Old Route, as it’s called, is rated 5.4 in the Yosemite Decimal System, which is easy by today’s standards, but Weissner availed himself of a variety of interesting features as he meandered up the cliff: a ramp, a narrow chimney, corners, ledges, and wide cracks.

Wiessner was involved in the first ascent of at least eighteen rock-climbing routes in the Adirondacks. The hardest, on Noonmark Mountain, is rated 5.8. That’s considered moderately tough, but it doesn’t come close in difficulty to many routes put up since Wiessner’s heyday. Josh, for instance, has climbed 5.11 routes. III Fire, the hardest climb in the Adirondacks, is rated 5.14a—which once would have been thought impossible.

So are modern climbers that much better than Wiessner?

Not really. Changes in footwear have enabled climbers to ascend ever-harder routes. In the old days, climbers wore boots or sneakers. Today, they climb in lightweight shoes that resemble ballet slippers with sticky rubber soles. These shoes allow climbers to get a purchase on steep slabs and tiny nodules of rock.

Protective gear—“pro,” in the sport’s lingo—also has greatly improved. In Wiessner’s day, climbers hammered metal pitons into cracks to hold their rope in the event of a fall. Nowadays, climbers carry lightweight nuts and cams that can be wedged into almost any crack. The new technology makes climbing difficult routes safer.

On Rooster Comb, we saw three or four old pitons on the Old Route. We wondered if they had been pounded in by Wiessner himself. Although no longer needed, the pitons are artifacts of a bygone era and should be left in place.

Pitons may be relics of the past, but steel bolts are not. Like pitons or other pro, fixed bolts are used to hold the rope in a fall. They are usually found on blank faces where it’s impossible to place pro or at the top of a cliff or pitch where climbers clip in the rope to rappel.

Since they alter the natural environment, bolts are controversial. Don Mellor notes in his book American Rock that attitudes toward bolts vary among climbing communities in different parts of the country. Climbers can get quite worked up over the issue. Mellor once told me, after we climbed Wallface, of a guy who used to carry a hammer to destroy any bolt he encountered.

In the Adirondacks, climbers frown on the overuse of bolts. Dominic Eisinger writes in the guidebook Adirondack Rock: “For existing routes, no additional protection or fixed anchors should be added without the consent of the first-ascent party. Fixed anchors have been installed by the climbing community where necessary for safety and preservation of fragile terrain and trees” (since they obviate the need to wrap slings around trees during a rappel).

But the guideline is not always followed. Tom Rosecrans, a longtime climber, complains that routes he pioneered on Rogers Rock years ago have since been bolted.

Some might ask whether it’s ever appropriate to fix bolts to a cliff in the forever-wild Forest Preserve. It’s a legitimate question: state regulations forbid defacing “any tree, flower, shrub, fern, fungi or other plant like organisms, moss or other plant, rock, soil, fossil or mineral or object of archaeological or paleontological interest found or growing on State land.”

Nonetheless, bolts do happen. Of course, many forms of outdoor recreation—whether hiking, snowmobiling, or camping—leave an impact on the wilderness. The question is whether that impact is acceptable.

Eisinger says Adirondack climbers strive to minimize their impact in all respects, not just in their bolting practices. “Scrubbing lichen from holds, cleaning dirt from cracks for protection, breaking the occasional branch to squeeze by a tree, or removing a dangerous loose block are all accepted practices,” Eisinger writes. “Scrubbing an 8-foot wide swath and cutting trees are not only illegal but aren’t accepted by the climbing community.”

In truth, no one but climbers will see a bolt on a cliff. And most climbers don’t mind a well-placed bolt. So the aesthetic impact is negligible.

Bolts are to modern climbers what pitons were to early climbers: an occasional necessity. And what climber would not take delight in seeing a piton put in by the great Fritz Wiessner? It’s a reminder that the sport hasn’t changed that much.

Photo by Phil Brown: Josh Wilson on the Old Route on Rooster Comb.


Monday, April 26, 2010

Phil Brown: Long Standstill Over Paddlers’ Rights

When four canoeists and a kayaker ventured down the South Branch of the Moose one spring day in 1991, passing through posted land, they sparked a legal battle that lasted eight years and ended in a victory for paddlers.

The Court of Appeals, the state’s highest tribunal, ruled that the common-law right of navigation embraces recreational canoeing. Two years later, the paddlers and the landowner, the Adirondack League Club, reached an agreement specifying when the public is allowed to paddle the South Branch.

But it wasn’t a total victory.

For one thing, the agreement says the river is open to the public only from May 1 to October 15 (or the opening of big-game season). But if a river is navigable in mid-April, why shouldn’t the public be allowed to paddle it? Can such an agreement between a landowner and private parties restrict the common law?

For another thing, little has happened to advance the cause of navigation rights since. Last spring, I paddled through posted land on Shingle Shanty Brook, a stream that connects two parcels of Forest Preserve in the Whitney Wilderness. I believe the public has a right to paddle this stream, but the landowners disagree. That there is still doubt about this, more than a decade later, shows that the Moose River decision was not as world-shaking as paddlers had hoped.

Finally—and this is less well known—the Moose River case put an end to legislative and regulatory efforts in Albany to clarify navigation rights.

Back in 1991, state legislators were pushing a bill that would have affirmed that paddlers have the right to travel on navigable rivers. At the same time, working on a parallel track, the state Department of Environmental Conservation was drafting departmental regulations with the identical purpose in mind.

The bill passed the Assembly, but apparently it was blocked in the upper chamber by Senator Ron Stafford, whose district included most of the Adirondacks. I’m told that Stafford was on the verge of coming around when the Moose River controversy erupted. Because of the lawsuit, the bill was shelved.

Similarly, DEC abruptly abandoned its effort to adopt regulations. The department had progressed so far in this initiative that it had drafted a news release.

What’s more interesting, DEC had prepared a draft list of 253 waterways throughout the state that it deemed navigable under the common law. Fifty-five of those rivers are in the Adirondacks.

You can read about this history in the May/June issue of the Adirondack Explorer. The story is available online here.

You also can see online the fifty-five Adirondack waterways on the department’s list. Keep in mind, however, that this was the draft of a preliminary list. If the list were subjected to public hearings, waterways may have been added or subtracted. That being said, it’s thought that most of the waterways on the list probably would have survived.

There is now a bill before the state legislature that would clarify the common law and authorize DEC to draft a new list of navigable waterways. Whether DEC would use that authority is questionable. The department may prefer to negotiate with landowners, as it is doing in the Shingle Shanty case. However it’s done, though, the public’s rights need to be clarified. The Moose River decision was not enough.

Photo of Shingle Shanty Brook by Phil Brown


Monday, April 19, 2010

Phil Brown: Facts of The Domtar-Nature Conservancy Deal

Attorney General Andrew Cuomo’s investigation into the state’s purchase of Lyon Mountain and nearby lands from the Adirondack Nature Conservancy stems from a perception—fostered by the New York Post—that the state overpaid for the property.

It’s easy to see how suspicions might arise. The Nature Conservancy paid $6.3 million for the twenty thousand acres in 2004 and sold it to the state four years later for $9.8 million.

A $3.5 million profit, right?

Well, not so fast. The conservancy says it spent $3.4 million in taxes, interest, and other “carrying costs.” If these are taken into account, the organization made only $100,000 on the deal.

Nevertheless, the conservancy says the state did not factor the carrying costs into the purchase price. Yet Fred Monroe, executive director of the Local Government Review Board, is not so sure. It was Monroe who tipped off the Post to the story.

In an interview with the Adirondack Explorer last week, Monroe suggested that the state could have inflated the price without the conservancy’s knowledge, out of a sense of obligation to its partner in land preservation.

Of course, this would require that one or more of the state’s appraisers were in on the fix. But perhaps it needn’t have been an outright conspiracy. Appraising is not an exact science. As Monroe notes, an appraiser can place an estimate on the low end or high end of a range in accord with his client’s interest. Thus, the appraiser for the homeowner is likely to come up with a higher appraisal for a house than the appraiser for the potential buyer.

The difference in the Nature Conservancy deal is that the buyer (the state) presumably wanted a high appraisal.

If we accept all this, there is still a problem with Monroe’s theory.

As it turns out, the conservancy says it hired Fountain Forestry to appraise the twenty thousand acres in 2004. Since the conservancy was buying the property, we can assume, following Monroe’s own logic, that the appraiser would low-ball the estimate.

Fountain’s appraisal: $9.1 million.

That’s $300,000 higher than LandVest, one of the appraisers hired by the state, valued the property in 2008, four years later. The state’s other appraiser, the Sewall Company, applied different criteria and came up with an estimate of $11 million—or $1.2 million more than the state ended up paying.

So we have three professional appraisals from private companies, ranging from $8.8 million to $11 million.

What’s more, an expert in the state Department of Environmental Conservation critiqued the LandVest and Sewall appraisals and came up with his own estimate of the land’s value: $9.5 million. Then a second DEC expert reviewed the two companies’ appraisals again and his colleague’s critique and came up with yet another estimate: $9.8 million. This is what the state paid.

That gives us five appraisals. The purchase price, though based on the fourth-highest appraisal, falls in the middle of the range.

The question remains: if the property was appraised at $9.1 million in 2004, why did the Nature Conservancy pay only $6.3 million?

There is a simple explanation. The appraisal looked at the property in isolation. In fact, the Nature Conservancy acquired the land as part of a three-way transaction involving 104,000 acres owned by Domtar Industries. The conservancy bought twenty thousand acres, and Lyme Timber bought the rest. Given the scale of the transaction, the conservancy was able to negotiate a lower price—a wholesale price, if you will.

Furthermore, Domtar and Lyme might have been willing to cut the conservancy a good deal as a reward for brokering the transaction.

The New York Post story
that prompted Cuomo’s inquiry didn’t delve into any of these details. It merely assumed, based on the difference between the two selling prices, that the conservancy pocketed a huge profit at taxpayer expense.

The Post‘s assumption seems overly simplistic. Nevertheless, we now have a state investigation. Of course, it will be the taxpayers who will be paying for that.

Photo from Lyon Mountain’s summit taken by Phil Brown.



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