Grimditches seek to appeal boathouse case

The larger of the two Grimditch boathouses. Photo by George Earl.

A family that built two boathouses on Lake Placid without a town permit wants to take its legal case to the state’s highest tribunal, the Court of Appeals.

William H. Grimditch Jr. and his children contend that the Appellate Division of State Supreme Court erred when it ruled in June that town law applied to the construction of boathouses on the lake.

In its 5-0 ruling, the Appellate Division partially reversed decisions in two similar cases in which it held that municipalities have no jurisdiction over construction on the state’s navigable waterways. Click here to read more about the ruling.

The Grimditches lawyer, Mandy McFarland of Albany, contend the Appellate Division’s latest decision represents “a stark departure from its prior rulings” and violates stare decisis, the principle that legal precedents should not be overturned lightly. McFarland also contends that the decision contradicts rulings of other state courts and the Court of Appeals must resolve the conflict. Finally, McFarland said the Appellate Division “created new law” in holding that state Navigation Law is inapplicable in the Grimditch case.

Given the issues at stake, McFarland is asking the Appellate Division for permission to appeal to the Court of Appeals. The motion is returnable on August 27. Jim Ranous, deputy clerk of the Appellate Division, said a decision could be made two to three weeks after arguments are made.

The Grimditches built the boathouses in 2010, defying a stop-work order from the town of North Elba. The town sued and demanded that the structures be torn down.

State Supreme Court Justice Richard Meyer ruled in favor of the Grimditches, but the Appellate Division overturned him.

Christopher Amato to leave DEC

Christopher Amato is resigning as the state Department of Environmental Conservation’s assistant commissioner for natural resources. He said will return to practicing law in the private sector or go to work for the state attorney general.

Amato told the Explorer that he expects to remain in the Albany region, where he lives. He said he will stay at DEC for “at least a week” longer.

Christopher Amato

“It was time for me to move on,” he said. “I very much enjoyed my time here.”

Amato had been in private practice before joining DEC four and a half years ago. Earlier in his career, he worked as a lawyer for six years in the state attorney general’s office.

As assistant commissioner for natural resources, Amato oversaw many decisions involving the management of the Adirondack Forest Preserve. Asked to list a few of his accomplishments at DEC, Amato mentioned the unit management plan (UMP) for the Moose River Plains Wild Forest, which he described as a model for balancing various uses of the Forest Preserve without harming the environment. Among other things, the UMP established an Intensive-Use corridor for car camping and a new Wilderness Area where all motorized access is forbidden.

“The Moose River Plains is like a microcosm of the entire Park,” he remarked.

DEC is notoriously decades behind in drafting UMPs for all the Forest Preserve tracts in the Adirondack Park. A few years ago, Amato wrote a Viewpoint for the Explorer in which he argued that DEC should streamline its UMP process by consolidating planning for neighboring tracts. Under such a scheme, for example, DEC would write a single plan for the High Peaks, Dix Mountain, Giant Mountain, Sentinel Range, and McKenzie Mountain Wilderness Areas.

Amato still believes the UMP process needs to be improved. He suggested today that DEC could draft one management plan for all Wilderness Areas and include appendices for dealing with specific problems in the individual Forest Preserve units. “So much of these UMPs are a lot of the same [information],” he said.

DEC was supposed to finish all the UMPs in the 1970s and update them every five years.

“How are we ever going to get the staff and the time to do the five-year reviews?” Amato said. “At this point, it’s an unrealistic expectation.”

One of the biggest controversies of Amato’s tenure erupted when DEC postponed enacting a ban on floatplanes landing on Lows Lake. The action upset environmentalists, but Amato stands by the decision.

“The Lows Lake floatplane decision was important,” he said, “because there is a real necessity to encourage the type of recreational activities that rely on the Forest Preserve. If the state is going to be the owner of huge tracts of land, it needs to support uses of the Forest Preserve that are consistent with people accessing it and enjoying it. For me, floatplanes are part of the picture.”

After a three-year delay, the Lows Lake ban will take effect next year. Amato said DEC is finishing a report that will explore other opportunities for floatplane operation in the Park.

Amato leaves as DEC continues to work on two major land acquisitions for the Forest Preserve: 65,000 acres of former Finch, Pruyn lands and the 14,600-acre Follensby Park. The Adirondack Nature Conservancy bought the lands in 2007 and 2008, respectively, and plans to sell them to the state.

Despite the state’s financial problems—and some opposition to the deals—Amato said DEC remains committed to the purchases. He said DEC has been meeting with hunters, fishermen, hikers, paddlers, and other user groups to discuss how the state will manage the Finch, Pruyn lands (which will be purchased first).

Amato also has been a champion of paddlers’ rights. After I paddled through private property on Shingle Shanty Brook and encountered no-trespassing signs and a chain, Amato tried to negotiate with the landowners to allow public access. After the negotiations failed and the landowners sued me, DEC and the attorney general’s office joined the suit on behalf of paddlers. The case is still pending.

Driving to Marcy Dam?

Jim McCulley walks along the Old Mountain Road in the Sentinel Range Wilderness. Photo by Susan Bibeau

Imagine how the High Peaks Wilderness would change if people were allowed to drive to Marcy Dam or Indian Pass. The Adirondack Park Agency raises this possibility in a legal brief filed last week in the long and convoluted dispute over the Old Mountain Road in the Sentinel Range Wilderness.

The Old Mountain Road is now used as a trail for hiking and cross-country skiing, but in May 2009 the state’s environmental conservation commissioner ruled that the route was never legally closed and thus, theoretically, could be reopened to motor vehicles.

If allowed to stand, the decision could be cited as a precedent for reopening other old roads in the Forest Preserve, according to the APA.

Jim McCulley, the president of the Lake Placid Snowmobile Club, touched off the battle in 2005 when he drove his pickup truck onto Old Mountain Road. Motorized vehicles are not allowed in Wilderness Areas, but McCulley contended that the road had never been legally closed. He was ticketed by the state Department of Environmental Conservation.

DEC Commissioner Pete Grannis agreed with McCulley and dismissed the ticket. But DEC’s staff, in a motion filed by DEC attorney Randall Young, contended that Grannis misinterpreted the law and asked for a clarification of the decision. Young is not seeking to reinstate McCulley’s ticket, but he has argued that Grannis’s ruling raises questions about the status of other roads in the Forest Preserve.

The APA sides with Young on this point. In its brief, the APA mentions the old truck trail to Marcy Dam and the trail through Indian Pass as two old roads at risk of being reopened to motor vehicles—both of which are in the High Peaks Wilderness.

“These are just two among many recreational trails that occupy the track of 19^th century roads and are placed in question by the argument in the Commissioner’s [ruling],” the APA says.

The APA argues that Grannis’s ruling violates the Adirondack Park State Land Master Plan, which sets forth the rules for the management of Wilderness Areas. In essence, the APA contends, Grannis modified the master plan by altering the status of the road. The APA says only its board can modify the master plan.

The Adirondack Council also filed a brief in the case. The council also says the Grannis decision could lead to the reopening of roads in other parts of the Forest Preserve, endangering flora and fauna and damaging trails.

Click here to read a story in the Adirondack Explorer about the implications of the Grannis ruling.

The decision on whether to clarify the ruling lies with Administrative Law Judge Louis Alexander.

McCulley’s lawyer, Matt Norfolk of Lake Placid, said in his brief opposing the motion for clarification that his client will not recognize any order that alters the Grannis decision. “The motions for clarification and reconsideration … have made this particular administrative proceeding to be a spectacle of lawlessness and abuse of process,” Norfolk asserts.

Norfolk also contends that the APA filed its brief after the 5 p.m. deadline on March 18. In a letter to Alexander, he asks that the agency’s brief be rejected as untimely.

Click the links below the read the briefs filed by the APA, the Adirondack Council, and Norfolk.

APA brief PDF

Adk Council brief PDF

Norfolk brief PDF

DEC lawyer files brief in McCulley case

A lawyer for the state Department of Environmental Conservation argues that his former boss misconstrued the Highway Law in dismissing a ticket against a Lake Placid man who drove his pickup truck on an abandoned road in the Sentinel Range Wilderness.

Randall Young, the top attorney in DEC’s Region 6, is asking the commissioner of DEC to clarify a decision handed down in 2009. The decision was made by then-Commissioner Pete Grannis.

Jim McCulley, the president of the Lake Placid Snowmobile Club, sparked the legal dispute after driving his truck on the Old Mountain Road in 2005. The road, now part of the Jackrabbit Ski Trail, runs through a Wilderness Area where motorized use is prohibited. McCulley, however, argued that the road was never legally abandoned.

Grannis agreed with McCulley, but Randall asserts that the former commissioner overlooked factual evidence and legal precedent. Among other things, Grannis noted that the route has continued to be used by hikers and skiers. Randall, however, contends that such recreational use is irrelevant in determining the legal status of a road.

Randall was granted permission in January to file a motion for clarification of the ruling. 

Click the link below to read Randall’s brief.

DEC brief PDF

New twist in McCulley case

Old Mountain Road passes through the Sentinel Range Wilderness. Photo by Phil Brown.

The state Department of Environmental Conservation has granted a request by its own staff to clarify an agency decision that the Old Mountain Road in Keene—now part of the Jackrabbit Ski Trail—had never been legally abandoned and therefore could be open to motorized use.

The decision by DEC Commissioner Pete Grannis in 2009 raised questions about the status of other old woods roads in the Forest Preserve.  Many such roads are now foot trails and closed to vehicles.

DEC attorney Randall Young had filed a motion for clarification, contending that Grannis misinterpreted the law and that the decision could lead to conflicts with the Adirondack Park State Land Master Plan. Click here to read an indepth look at the implications of the Grannis decision.

Old Mountain Road passes through the Sentinel Range Wilderness, where all motorized use is forbidden.  Lake Placid resident Jim McCulley challenged the closure of the road by driving his snowmobile and later a pickup truck on the road, leading to a series of legal battles.

Both the Adirondack Park Agency and the Adirondack Council supported Young’s motion for clarification and sought permission to intervene in the matter.

In a ruling dated December 30, acting DEC Commissioner Peter Iwanowicz granted Young’s motion and agreed to allow the APA and the council to participate.

“This gives us an opportunity to undo what was potentially a damaging precedent for the Forest Preserve,” said John Sheehan, the council’s spokesman. He fears the Grannis decision could be used to open other roads in the Preserve.

Iwanowicz has asked DEC staff to submit legal papers by February 4. McCulley, the APA, and the council are required to file their responses by March 11.

McCulley’s lawyer, Matt Norfolk of Lake Placid, could not be reached for comment. In a letter to the administrative law judge in the case, Norfolk asked for confirmation that Iwanowicz was still the acting commissioner when he signed the ruling.

McCulley was ticketed for driving on the road, but the ticket was dismissed. The motion for clarification does not seek to reinstate the ticket.

Click the links below to read Iwanowicz’s decision and Norfolk’s letter.

Iwanowicz decision PDF

Norfolk letter PDF

McCulley testifies against train

The tracks outside Saranac Lake. Photo by Susan Bibeau.

Jim McCulley traveled to Albany this week to testify against the state’s continuing subsidization of the Adirondack Scenic Railroad. A short article in the Adirondack Daily Enterprise generated a lot of online comments from readers. Click here to read the article.

McCulley, the president of the Lake Placid Snowmobile Club, wants to see all or most of the tracks pulled up to create a corridor for biking, hiking, and snowmobiling. Snowmobilers do use the corridor, but McCulley says the rails and ties limit its usefulness.

Proponents of the train argue that removing the tracks would be shortsighted at a time when the nation is, or should be, embracing mass transit to reduce our dependence on oil. But is reviving the train a for freight and/or passenger service a realistic option? That’s a question that we will look at in a future issue of the Adirondack Explorer.

For background on converting the railbed into a recreational corridor, see this earlier story in the Explorer.

The case against cairns

Earlier this week, I wrote a short item for Adirondack Almanack on cairns. Many people are fascinated by these heaps of stone often found on bare ridges and summits. Tom Woodman, our publisher, wrote about cairns in a column in the Explorer last year. Adirondack Life ran a photo feature on cairns last year. And Mary Thill wrote about cairns in an earlier Adirondack Almanack piece.

Cairn on East Dix.

Not everyone, though, likes cairns. I discovered this after posting my piece. As one reader commented, “The last thing I want to see on public land is someone else’s form of personal expression, whether it is a cross, spray painted graffiti, or a cairn built by a some hippy or Andy Goldsworthy wannabe.”

Some readers even argued that cairns constructed by the public are illegal.

It turns out they’re right.

Unless you work for the state Department of Environmental Conservation, you are not allowed to build a cairn in the Forest Preserve without a permit, according to agency spokesman David Winchell. DEC regulations state: “No person shall erect, construct, install, maintain, store, discard or abandon any structure or any other property on State lands or subsequently use such structure or property on State lands, except if the structure or property is authorized by the department.”

Does this mean you should look over your shoulder the next time you add a stone to the giant cairn on Skylight? That’s probably not necessary.

“I can’t recall any instance of someone being charged with constructing a cairn, not to say that it hasn’t occurred,” Winchell said.

In theory, though, you could be ticketed and fined up to $250.

I guess that beats busting rocks in a prison.

County official protests to governor

Hamilton County’s director of economic development and tourism has written Governor David Paterson to protest the state’s plan to close to vehicles all the roads in the Moose River Plains Recreation Area.

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

In his letter released today, William Osborne asserts that the closures “will have a devastating effect on the Hamilton County business community and a local economy already teetering on the brink.”

He also contends that the state should not purchase any more land for the Adirondack Forest Preserve unless it can guarantee it can pay to maintain the land.

 “Why is the State of New York buying more and more land when it cannot begin to care for, maintain and police the land it already owns?” he asks.

Osborne suggests the state pass legislation tying future land purchases to maintenance funds.

The state Department of Environmental Conservation says budget cuts prohibit it from opening the forty miles of dirt roads in the Moose River Plains. DEC spokesman David Winchell said the department lacks the staff to maintain and patrol the roads and 110 drive-in campsites. The roads usually open in May.

The Hamilton County Board of Supervisors adopted a resolution last week demanding that the state open the roads immediately.

Click the link below to read Osborne’s letter in its entirety (in PDF format).

Osborne letter

New deal for hunters

When the state signed a deal a decade ago to protect 139,000 acres owned by Champion International, Adirondack residents complained that it called for the demolition of hunting camps that had been in use for many years.

As a result, the state Department of Environmental Conservation is proposing to modify the deal to allow the 220 camps to remain. In exchange, the current owner, Heartland Forestland Fund III, will donate 2,661 acres to the state. The company supplements its timber revenue by leasing land to hunting clubs.

In 1999, the state bought 29,000 acres outright from Champion and protected the remaining 110,000 acres via conservation easements that prohibit development but permit logging.

The original deal required the camps to be demolished after June 30, 2014. Under DEC’s proposal, released today (Tuesday), they will be allowed to remain indefinitely. Each camp will have a one-acre footprint that will remain off limits to the public. The rest of the land will be open for public recreation.

The land to be given the state includes a 2,146-parcel near the Deer River in the northern Adirondack Park. Most of the Deer River corridor within the Park was purchased from Champion in the 1999 deal and is now called the Deer River Primitive Area. The new parcel will be added to this Forest Preserve tract. Also, a 515-acre parcel will be added to the Deer River State Forest just north of the Park.

Adirondack Council spokesman John Sheehan said the modified agreement will benefit the Forest Preserve, the hunters, and Heartland. “We’re not thrilled that they reopened an easement that the state settled a decade ago, but we can live with the result,” he said.

The modifications must be approved by the state attorney general and the state comptroller. DEC will be taking public comments on the proposal until December 11. Comments may be e-mailed to Heather Carl at HFF3DEIS@gw.dec.state.ny.us.

 Click the links below for PDF files of DEC’s announcement and details of the proposal.

DEC announcement

DEC proposal

Land swap on ballot

On Tuesday, voters will be asked to approve the construction of a power line that’s already been built—through the forever-wild Forest Preserve in the northwestern Adirondacks.

If Ballot Proposal One is approved, the state will cede to National Grid a two-mile strip, totaling six acres, along Route 56 where the line was built last year. In exchange, National Grid will give the state a forty-three-acre parcel along the South Branch of the Grass River.

National Grid built a power line along Route 56 that traversed the Forest Preserve parcel shown in dark green. The alternative would have been to avoid the parcel by building in an old-growth forest and spruce-grouse habitat. Courtesy of the Adirondack Council.

John Sheehan of the Adirondack Council says it’s a good deal for the state.

If the line were not built along the road, Sheehan said, National Grid would have had to avoid the Forest Preserve parcel by constructing the line through an ancient boreal forest and Seveys Bog, a home of the endangered spruce grouse. The line would have crossed ninety-five streams and wetlands, according to the council.

“That forest has not been disturbed, as far we can tell, since the last ice age,” Sheehan said.

The line is needed to provide a backup source of power to Tupper Lake.

“In a couple of cases they’ve had outages in the winter that lasted more than a day,” Sheehan said. “They’ve had to put people in public shelters to keep them from freezing to death.”

He concedes that building the power line in the Preserve was illegal, but for the sake of the greater good, the council and other environmental groups chose not to sue.

The state Department of Environmental Conservation also agreed not to sue if National Grid pursued the constitutional amendment allowing the land swap. The amendment, now known as Ballot Proposal One, has already been approved by two successive state legislatures—a prerequisite to getting it on the ballot.

DEC spokeswoman Maureen Wren said National Grid was under federal orders to build the line by the end of last year, so work could not be delayed under after next week’s referendum.

Sheehan has been talking up the amendment around the state and has encountered virtually no opposition. He is confident it will pass. If for some reason it doesn’t, he added, National Grid will push for another vote in 2011.

The council’s website contains an explanation of the proposal as well as its exact wording. You’ll also find links to numerous editorials in favor of the land swap.

Click the link below to read National Grid’s fact sheet on the project.

National Grid factsheet PDF