APA closer to wild forest roads policy

Public invited to comment on another way to count the miles

By Gwendolyn Craig

Adirondack Park Agency commissioners could make a decision as soon as May on what constitutes a “material increase” of roads in wild forest areas.

What’s at stake

The APA has to determine:

• How many miles of wild forest roads existed in 1972 and today.
• Whether roads accessible to people with disabilities but not to the general public count in the wild forest roads mileage.
• What constitutes a material increase.

Environmental organizations have argued over the last year that the law plainly states that roads accessed by people with disabilities count in the mileage. Part of the master plan definition of a road is that it is “maintained by a state agency or a local government and open to the general public.” 

The routes in question are called CP3, short for Commissioner’s Policy No. 3. That policy came about after a July 2001 settlement in the matter of Theodore Galusha vs. the state Department of Environmental Conservation. Galusha, of Warrensburg, sued the state under the Americans with Disabilities Act and in the settlement, the DEC was required to open about 26 miles of forest preserve trails to people with disabilities. Those miles are referenced as Galusha CP3 routes, but the DEC and APA have approved other CP3 routes beyond what was required in the settlement.

Christopher Amato, conservation director and counsel for the nonprofit advocacy group Protect the Adirondacks, was also a staff attorney at the APA and deputy commissioner of natural resources at the state DEC. He spoke before APA commissioners at their meeting on Thursday.

“We’ve heard DEC make the claim that CP3 permit holders are not members of the public,” Amato said. The DEC has not provided a legal analysis explaining why, he continued. “It makes no practical sense.”

But some commissioners appeared to balk at the consequences if they do consider CP3 routes and the Galusha CP3 routes in the mileage. Then, the agency would be over its mileage limit for wild forest roads in nearly any scenario of what constitutes a material increase, meaning roads currently open would have to be closed.

Josh Clague, Adirondack Park coordinator for the DEC, said if CP3 routes are not included in the policy’s definition of a road, then there is “theoretically no limit on CP3 routes throughout the park.”

APA and DEC staff have used an estimated 211.6 miles of roads documented in 1972. Today, not including all CP3 routes, there are about 206.6 miles of wild forest roads. Should all CP3 routes be added to that number, including CP3 routes approved in plans but not yet opened, there would be 244.7 miles of wild forest roads today.

APA commissioners are considering four ways of interpreting what constitutes a “material increase” in roads, and the last one is what is new.

1. A 15% increase in road mileage would be allowed, and consistent with the APA’s policy on snowmobile trails.

2. The board must set a percentage or a mileage number for what constitutes a material increase, and it will be greater than 15%.

3. The board would set a percentage or mileage number less than a 15% increase. This would treat roads differently from snowmobile trails.

4. The board would consider the current mileage of non-CP3 roads in wild forest (206.6 miles) as a non-material increase, “nor would increases of mileage up to and including the 1972 estimated mileage of 211.6,” according to the APA’s presentation. The option would require staff to assess the impact of every road in a unit management plan (UMP), another policy document created for specific sections of the Adirondack Park.

APA Chairman John Ernst, who had originally suggested the fourth no material increase option, considered the 15% increase on Thursday. He suggested it has worked for the snowmobile trails and that CP3 routes are only opened on a discretionary basis.

“If we did that, and if we only counted the CP3 miles adding to wild forest roads, we end up with 20.2 miles of additional wild forest roads that could be approved to take into consideration for future acquisitions or changes,” Ernst said. “It’s going to have critics and can probably be challenged, but it’s beginning to me to be a path that is doable.”

Commissioner Zoe Smith said she didn’t want to ask “the staff and board to wrestle with this every time a UMP comes up.”

Commissioner Art Lussi said he’d like to see the board adopt the second no material increase option that would cap mileage at greater than 15% and not include CP3 routes.

“You don’t know what we’re going to acquire,” Lussi said. He referenced the rest of Whitney Park, owned by the widower of socialite and philanthropist Marylou Whitney, John Hendrickson. Hendrickson has said publicly he does not plan to sell one of the last largest privately owned parcels to the state, but many environmental organizations are pushing for it to be added to forest preserve. Lussi said the 36,000 acres has lots of roads “that would be phenomenal access. What would be the point of acquiring it if people can’t use it?”

Megan Phillips, deputy director of planning for the APA, cautioned that if the state were to acquire the Whitney property, the APA would have to determine its land classification. “We’re getting ahead of a really important step in the process,” she said.

Joe Zalewski, DEC’s Region 5 director and an APA commissioner, said the board had to decide what constitutes a road first. If the board went with the fourth option of no material increase, the agency would have 5 miles left to work with if CP3 routes were not included, and would be over its limit by 33 miles if they were.

Jerry Delaney, director of the Adirondack Park Local Government Review Board, agreed that deciding how to count CP3 has to be solved. There has always been some town in the park since 1972 that lost access to a road for every state land purchase, he said. If the board went with an option that would require the closing of more roads, Delaney asked, “what are you going to close?” He didn’t think any town should have to go through road closures.

Delaney pointed to a July 1972 press release from Gov. Nelson Rockefeller announcing the approval of the Adirondack Park State Land Master Plan. It counted 930 miles of snowmobile trails.

“They could have figured out how many miles of roads in 1972,” Delaney said. “They chose not to.”

Commissioner Mark Hall said he was more open to looking at “no material increase” on a case-by-case basis during the UMP process rather than setting a hard cap.

“I think we’ll look at it on a UMP basis anyways, but I think we have to deal with this CP3 mileage one way or another,” Ernst said.