Should floatplanes be allowed on Lake Lila?

The state attorney general is again asking a federal judge to dismiss a lawsuit that demands that the disabled be allowed to fly to remote lakes in regions of the Adirondack Park classified as Wilderness, where motorized use is prohibited. Among the waterways targeted in the suit is Lake Lila, long a prime destination of canoeists and kayakers. 

Assistant Attorney General Susan Taylor argues, among other things, that the five men who filed the suit, though disabled, can access Wilderness Areas and many Adirondack lakes without a floatplane.

Lake Lila

But Lake Placid attorney Matthew Norfolk says his clients (who include Maynard Baker, the former supervisor of Warrensburg) are unable to visit on foot “truly wild lakes and ponds” in the backcountry.

Norfolk says there are 860 lakes and ponds in Wilderness Areas. The plaintiffs seek permission to fly to thirty-eight of them, those considered big enough to accommodate a floatplane. One of them is Lake Lila, the largest lake in the Adirondack Park totally surrounded by publicly owned Forest Preserve. With its several islands and wild setting, Lila is a popular destination of paddlers.

The other thirty-seven lakes are:

West Canada Lake Wilderness. West Lake, South Lake, Cedar Lakes, Whitney Lake, Mud Lake, Metcalf Lake, Horn Lake, Pillsbury Lake, Spruce Lake.

Pigeon Lake Wilderness. Shallow Lake, Lower Sister Lake, Queer Lake, Constable Pond, Terror Lake, Pigeon Lake, Cascade Lake.

Five Ponds Wilderness. Cage Lake, Salmon Lake, Negro Lake, Rock Lake, Lyon Lake, Witch Hopple Pond, Big Deer Pond, Clear Pond, Crooked Lake, Sand Lake.

Pepperbox Wilderness. Sunshine Pond.

Siamese Ponds Wilderness. Upper Siamese Pond, Lower Siamese Pond, Round Pond, Puffer Pond. 31

Blue Ridge Wilderness. Cascade Pond, Stephens Pond.

Silver Lake Wilderness. Silver Lake.

Pharaoh Lake Wilderness. Pharaoh Lake, Crane Pond.

High Peaks Wilderness. Round Pond.

 The plaintiffs filed the suit in U.S. District Court in August 2010, claiming that Wilderness regulations violate the federal Americans with Disabilities Act.

 Click the links below to read the latest court filings from the plaintiffs and the state.

 AG motion

Norfolk response

DEC proposes to ban gas motors on 13th Lake

The state Department of Environmental Conservation proposes to ban gas-powered motorboats on Thirteenth Lake on the edge of the Siamese Ponds Wilderness. DEC says it has received numerous complaints about the noise and pollution caused by motorboats on the lake. Under the proposed regulation, electric motors would be allowed on the lake. The agency’s news release, with links to more information, follows.

DEC PROPOSES THE USE OF ELECTRIC MOTORS ONLY ON THIRTEENTH LAKE

 A proposed regulation that would limit motorized boating  on Thirteenth Lake to electric motors only was released for public comment today  by the New York State Department of Environmental Conservation (DEC).  Interested parties have until July 2 to provide comments on the proposed regulation.

Thirteenth Lake lies in the northeastern portion of the Siamese Ponds Wilderness Area in the Town of Johnsburg, Warren County. The lakeshore is predominately state-owned lands classified as wilderness.  Some privately owned parcels adjoin the lake.  

During the development of the Unit Management Plan for the Siamese Ponds Wilderness Area, DEC received numerous comments from private homeowners on the lake and from other users requesting that motorboats be prohibited on Thirteenth Lake due to noise, air pollution and water pollution issues. In response to these concerns, the Siamese Ponds Unit Management Plan calls for limiting motorized boating on the lake to electric motors only. This regulation implements that directive.

 The use of electric motors will allow anglers to troll for trout and people with mobility disabilities to access the lake and adjoining wilderness lands.

 The full proposed regulation and additional information regarding the purpose of the regulation can be viewed on the DEC web site (www.dec.ny.gov/regulations/2359.html) Notices have also be posted in the DEC Environmental Notice Bulletin (www.dec.ny.gov/enb/20110518_not5.html) and the State Register (www.dos.state.ny.us/info/register/2011/may18/pdfs/rules.pdf).

 Comments will be accepted until July 2, 2011.  Comments or questions may be directed to Peter Frank, Bureau of Forest Preserve, Division of Lands & Forests, by mail at 625 Broadway, Albany, NY 12233-4254; e-mail at pjfrank@gw.dec.state.ny.us or by telephone at 518-473-9518.

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

State answers floatplane suit

Floatplane on Long Lake. Photo by Carl Heilman II.

The November/December issue of the Explorer will contain an article and a debate on a lawsuit filed against the state by five military veterans who contend that the state’s ban on floatplanes in Wilderness Areas violates the federal Americans with Disabilities Act.

Today, Attorney General Andrew Cuomo filed an answer to the suit. Most of the document is filled with standard legalese (“Deny knowledge or information sufficient to form a belief …”), but it provides insight into the state’s defense.

Assistant Attorney General Susan Taylor contends in the answer that the federal law does not require the state to provide the disabled with access to every part of the Adirondack Park.

“A substantial portion of the entire Adirondack Park is accessible to the plaintiffs, including many lakes and ponds on which float planes are permitted to land and from which they are permitted to take off,” Taylor writes.

In recent years, the state Department of Environmental Conservation has spent millions of dollars to make boat launches, viewing platforms, hardened trails, roads, and other facilities accessible to the disabled.

Most of these facilities are on Forest Preserve tracts designated Wild Forest, not Wilderness. However, Taylor asserts that the disabled do have access to some lakes in Wilderness. She mentions as examples Little Tupper Lake and waterways in the Siamese Ponds, Silver Lake, West Canada, and Five Ponds Wilderness Areas.

The plaintiffs are represented by Lake Placid attorney Matthew Norfolk.

Click the link below to read the state’s answer (in PDF format).

Cuomo answer PDF

Thanks to Carl Heilman II for permission to use the above photo.

Council loses snowmobile decision

A state judge has dismissed the Adirondack Council’s complaint that guidelines for snowmobile trails, adopted last year, violate the Adirondack Park State Land Master Plan and the forever-wild clause of the state constitution.

Photo from Wikipedia.

The guidelines authorize the state Department of Environmental Conservation to construct extra-wide “community connector” trails between hamlets and allow tractor groomers to maintain them.

The Adirondack Park Agency approved the guidelines in November, saying they complied with the State Land Master Plan.

Brian Houseal, the council’s executive director, said the council will decide whether to appeal after reviewing the judge’s opinion.

Houseal said the council recognizes the economic importance of snowmobiling and supports the concept of community connectors, but he raised several objections to the guidelines.

Community connectors are supposed to avoid the interior of the Forest Preserve, but Houseal  said the trails will be permitted up to two miles from highways. The council contends community connectors should be located no more than five hundred feet from roads.

Houseal also argues that the Master Plan needs to be amended to define “community connector,” “mechanized groomer,” and other novel terms found in the guidelines.

State Supreme Court Justice Gerald W. Connolly dismissed most of the council’s claims on the ground that they were not “ripe” for litigation. The guidelines will be implemented only through unit management plans (UMPs) for individual tracts of Forest Preserve. The time to sue, the judge reasoned, is when UMPs are adopted.

The judge dismissed one of the council’s claims on procedural grounds.

Click the link below to read the full decision.

Adirondack Council v APA

Disabled sue for wilderness access

Kayakers in the motor-free St. Regis Canoe Area. Photo by Phil Brown.

Six men filed suit in federal court this week to force the state to allow the disabled to fly into wild lakes by floatplane or helicopter.

The plaintiffs contend that banning aircraft from tracts of Forest Preserve classified as Wilderness, Primitive or Canoe violates the federal Americans With Disabilities Act.

Before the adoption of the Adirondack Park State Land Master Plan in the early 1970s, floatplanes regularly flew in and out of lakes where they are now banned. The plan prohibits nearly all motorized use in Wilderness, Primitive, and Canoe Areas.

The Explorer will run a story on the lawsuit in a future issue. Meanwhile, you can read this account in the Adirondack Daily Enterprise.

The plaintiffs in the suit are military veterans. Some suffered grievous injuries in war that prevent them from hiking or paddling to remote lakes.

It’s hard not to feel sympathy for them, but I spoke today with one disabled person who opposes the lawsuit. He is Michael Washburn, the former executive director of the Residents’ Committee to Protect the Adirondacks.

“I don’t believe my rights as a disabled person should extend in a way that deprives others of their rights,” said Washburn, who is legally blind. “The citizens of New York have a right to a wilderness experience without the intrusion of motors.”

He also argues that many disabled people support wilderness regulations. He points to a federal study (pertaining only to federal lands) that found “the majority (76 percent) of the respondents with disabilities do not believe that the restrictions on mechanized use stated by the Wilderness Act diminish their ability to enjoy the wilderness.”

Washburn said organizations such as Adirondack Adaptive Adventures (he sits on its board) can help the disabled access and enjoy wild lands where motors are banned.

Furthermore, he said the Forest Preserve contains dozens of lakes where floatplanes are allowed.

As mentioned, we’ll run a fuller account in the Explorer, with opinions from both sides.

Incidentally, the plaintiffs’ lawyer is Matt Norfolk of Lake Placid, who defended Jim McCulley after he was ticketed for driving a pickup truck on an old woods road in the Sentinel Range Wilderness. Norfolk won that case.

Revisiting Crane Pond Road

The words "Adirondack Homeland" appear on a boulder at the entrance to the Pharaoh Lake Wilderness, a reminder of the battle over Crane Pond Road two decades ago.

In the next issue of the Adirondack Explorer, we plan to publish an article by Adam Federman on the implications of the Old Mountain Road decision on the state Forest Preserve.

Federman notes that probably hundreds of old roads crisscross the Preserve. As a result of the Old Mountain Road case, observers are asking whether towns could reopen these roads to snowmobiles and/or other motor vehicles.

Any attempt to open these roads is sure to put the state Department of Environmental Conservation in the crossfire between local governments and environmental groups.

Remember Crane Pond Road? The dirt lane penetrates nearly two miles into the Pharaoh Lake Wilderness, ending at Crane Pond. Since motorized use is forbidden in Wilderness Areas, DEC placed boulders across the road in 1989 to blockade it.

The closure enraged local residents and became a cause celebre. In 1990, a group of men wearing masks removed the boulders and vowed to keep the road open. Members of Earth First, a radical environmental group, later pitched tents at the start of road to keep out vehicles.

A truck at the Crane Pond, nearly two miles inside the Pharaoh Lake Wilderness. Photo by Phil Brown.

This set up a confrontation between the Earth Firsters and locals who wanted to keep the road open. Jack LaDuke, who was there as a reporter for WCAX-TV, recalls that Warrensburg Supervisor Maynard Baker was among those who approached the encampment.

“Out of the corner of my eye I saw some commotion,” LaDuke told me today. “Baker and this other fellow were going at it. It was a very short encounter. Baker threw a punch and hit the fellow, it appeared to me on the chin, and he went down.” The Earth Firsters left soon afterward.

LaDuke’s footage later aired on a 60 Minutes piece about violence against environmentalists.

I went to Crane Pond Road on a gray, chilly day a few weeks ago to take photographs for Federman’s story. There is still an American flag hanging from a tree near the boundary of the Wilderness Area. Just where the road crosses into state land I noticed a boulder with spray-painted letters. I scraped off the moss and to reveal what they said: “Adirondack Homeland.”

There were no signs either indicating that this was the boundary of a Wilderness Area or forbidding motor vehicles. In fact, I wasn’t sure this was the boundary when I first drove up the road. I went as far as the trailhead for Goose Pond and hiked the rest of the way to Crane Pond. I saw three pickups parked along the road, including one at Crane Pond.

John Sheehan, a spokesman for the Adirondack Council, argues that DEC is obligated by the Adirondack Park State Land Master Plan to close the road. “It was closed [initially] by a legal action,” he said. “It was reopened by an act of vandalism.”

But the agency has no desire to open this can of worms.

When I asked why the road remains open, DEC spokesman Yancey Roy sent this e-mailed response: “When the controversy became public some years ago, the administration at the time decided to delay any action on the road until some future date. All subsequent administrations have continued to follow that policy.”

APA snowmobile plan called illegal

The Adirondack Park Agency could face legal action if, as appears likely, it approves new snowmobile-trail guidelines at its meeting on Friday.

 The APA’s State Land Committee voted this afternoon (Thursday) to permit the agency’s full board to consider the guidelines at its Friday meeting.

 Afterward, the executive directors of the Park’s three major environmental groups—the Adirondack Council, the Adirondack Mountain Club (ADK), and Protect the Adirondacks—argued that the proposed guidelines violate the Adirondack Park State Land Master Plan.

Their objections pertain to the character and maintenance of a new class of trails known as “community connectors,” intended to link hamlets.

The trails would be nine feet wide in most places and up to twelve feet wide on curves. Also, most protruding rocks would be removed to create a smoother surface. The critics say such trails would violate the State Land Master Plan’s mandate that snowmobile trails retain “essentially the character of a foot trail.”

The guidelines also would permit grooming tractors on the trails, which the green groups contend would be an illegal use of motor vehicles on the Forest Preserve.

“The State Land Master Plan carries the force of law,” said Brian Houseal, head of the Adirondack Council. “A community-connector trail with tractor groomers is beyond the definitions” of permissible uses found in the State Land Master Plan.

Houseal and his two colleagues—Neil Woodworth of ADK and Dave Gibson of Protect—said they would consider filing a lawsuit if the guidelines are approved.

They said they would not object to the construction of community connectors or to the use of tractor groomers if the State Land Master Plan were appropriately amended.

APA Commissioner Dick Booth was the only member of the State Land Committee who argued that the master plan should be amended. The full board will take up the issue at 10:45 a.m. Friday.

The New York State Snowmobile Association backs the proposed guidelines, according to Dave Perkins, the group’s trails coordinator.

Click here to review the guidelines and related documents.