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Tuesday, March 22, 2011

Driving to Marcy Dam?

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

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 19th 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

Phil Brown

Contributor Phil Brown was editor of the Adirondack Explorer from 1999-2018. When he isn't at his desk, he's usually out hiking, paddling, skiing, or doing something else important.

33 Responses

  1. Paul says:

    I am sure the towns that have control of those roads would not decide to reopen them to motorized traffic. Just like Keene has decided to keep OMR closed.

    The master plan is not being changed. The master plan came after the roads in question were already under the control of the towns. Everything except certain roads on state land fall under the jurisdiction of the DEC the APA and the plan.

  2. Paul says:

    The APA brief refers to “many” other trails that would fall under this definition beyond the two they describe. What are they?

  3. Phil says:

    Paul, the brief doesn’t identify others. The Explorer story I link to suggests that there are hundreds of miles of old roads in the Preserve.

  4. Paul says:

    Phil, thanks yes I saw that. I was just thinking maybe they could have supplied a list in their brief. It would only strengthen the case they are trying to make. The old “lots and lots” argument isn’t as strong.

    You can certainly see the frustration in the Norfolk brief.

  5. Jim McCulley says:

    Paul, no roads fall under the jurisdiction of the APA or DEC. That’s why they have turned in to hysterical fools. Imagine trying to over turn a judges decision in their Kangaroo Court. When we are done with them DEC will not have the ability to have hearings any longer. The APA will be the laughing stock for even trying to pass their plan off as law.

  6. Phil says:

    I updated the original post to add a graph about the Adirondack Council and a link to the council’s legal brief.

  7. Dave says:

    You sound calm and collected Jim. Not at all like someone driven by vendetta instead of principle.

  8. Tony Goodwin says:

    I have read the APA brief and find their basic argument sound. If indeed the APA notified the towns in 1987 (when they last updated the SLMP) that the Old Mountain Road and others were declared abandoned with no objections from the respective towns. I believe the SLMP does have “legislative force” and that the DEC Commissioner does not have the right to change the SLMP.

    (This is, of course, said against the background of DEC statements in 1995 that this was still a “town road” and my willingness to go along with this statement since it allowed a Town of Keene bulldozer to solve one of several major washouts that had been created by the deluge.)

    As for opening the road to Marcy Dam or through Indian Pass, I believe that is just very sloppy legal work by the APA as they tried to meet the deadline. Any early road to Marcy Dam beyond South Meadow would have been a privately constructed lumber road on what would then have been private property. The supposed “road” through Indian Pass never existed, but the APA staff may have confused this with a “winter road” that apparently did exist from North Elba to Tahawus to help supply th early 19th Century mining operation there. Neither “road” would ever have been considered a “town road” and therefore not subject to reopening by the initial decision in this case.

    Yes, there are indeed other old roads that were once town roads or even state highways that could be reopened, but Marcy Dam and Indian Pass are not in jeopardy – much as some commentators seem to like to use scare tactics.

  9. Nature says:

    This is a bunch of hooey. The State Land Master Plan, even if it does have the “force of law”, does not have the ability to supersede or contradict other state laws; in this case state highway law. Either this thing is a road or it is not. And the state land master plan is not the legal means of determining that.

    The state land master plan was not dictated to Clarence Petty by Yaweh on the top of Mount Marcy. It is a “plan” that even if it has the “force of law” was intended to be updated and corrected (thats right, corrected) at periodic intervals or when the needs arise.

    I agree with Goodwin, in that the roads to Marcy dam, and through Indian pass are of an entirely different nature than the Old Mtn Road. The APA and Adirondack Council staff would have us believe that every old logging road or skid path would be reopen to motor vehicles. This is far from the truth and they should know that. The APA staff that drafted this legal brief should be docked a week’s pay and put on probation.

    Whether you or I like it, if a road is still legally a “road” then the law should be upheld. It seems that the Old Mountain Road has passed through several different courts and none of them have determined that the road is not a “road”. How much tax payer money do we have to waste on this?

    McCully had his day in court and won. But the road will still remain a ski trail as it has been for many years. Everyone seems to have gotten what they want. When is enough enough?

  10. Jason Pedu says:

    I love how people try to rationalize this situation.

    I have read the APA brief and find their basic argument sound. If indeed the APA notified the towns in 1987 (when they last updated the SLMP) that the Old Mountain Road and others were declared abandoned with no objections from the respective towns. I believe the SLMP does have “legislative force” and that the DEC Commissioner does not have the right to change the SLMP.

    (This is, of course, said against the background of DEC statements in 1995 that this was still a “town road” and my willingness to go along with this statement since it allowed a Town of Keene bulldozer to solve one of several major washouts that had been created by the deluge.) – Tony Goodwin

    I choked on my beer!

  11. HikingBlog.net» Blog Archive » Driving to Marcy Dam? says:

    […] Source: http://adirondackexplorer.org/out-takes/2011/03/22/driving-to-marcy-dam/ […]

  12. Jim McCulley says:

    What people should understand about this entire situation is this. Administrative Hearings, cannot super cede a state court decision and create a new precedent. The Halloran decision is LAW. Ask any lawyer they will all tell you the same thing.

    Secondly the very idea of having a trial with out a respondent makes this a Kangaroo Court. The operations now going on will result in DEC/APA and the Council all ending up back in Federal Court to explain this political prosecution.

    Even better is the Halloran decision will be the finale word and the APA’s brief can now be used to open any and all roads. Along with the SLMP once and for all, being called what it is a plan not law. What other law must be updated every 5 years their entire argument is laughable.

  13. Paul says:

    “I have read the APA brief and find their basic argument sound. If indeed the APA notified the towns in 1987 (when they last updated the SLMP) that the Old Mountain Road and others were declared abandoned with no objections from the respective towns.”

    Jim or Tony, is this really the legal way to abandon a town road? How were the towns given the opportunity to object. Did the respective courts that ruled in Jim’s favor have documentation that showed how the DEC and APA notified the towns in writing? Did they have documentation that showed that the towns notified the state in writing that they agreed with the state’s decision? I think the point of the HW law is that it is a town decision not a state decision that requires town approval??

    It sounds like they are claiming they notified the towns in 1987. When did they close the road?

    Has the state notified the towns in advance on all the other road closings (inside and outside the Adirondack park)? Did the towns approve of the closures in these cases? It should be simple to find this documentation if it exists. Since the APA describes this in their brief it all must exist, especially for OMR and the two roads they describe?

    I think this whole thing is a desperate attempt to exert jurisdiction over something they don’t have jurisdiction over? Get over it. The town is capable of deciding what to do with this road and any others.

  14. Paul says:

    Another question for the experts since we have their attention…

    What about all the roads that you see listed on tax maps and the like that are on state land that are not closed. I am refereeing to what the DEC calls a “DEC road” in the Adirondacks. Who has jurisdiction there? Can the DEC close these when the are tired of paying to maintain (or not in many cases) them in the future?

  15. Jim McCulley says:

    Paul, the towns were never notified. As a matter of fact North Elba and Keene both sent resolutions to the DEC telling them it was their road and they would not give it up. In 1991 DEC sent a letter to each town saying the OMR would not be closed.As far as DEC roads depending how the road was built town/ county funds they may or may not have jurisdiction over them.

  16. Paul says:

    Jim, thanks. This brief sounds inaccurate at best a lie at worst.

    Even if it were accurate I still don’t think it would matter.

    The DEC has upgraded some of the kinds of roads I describe but I personally don’t know of any roads that the DEC has ever constructed? Does anyone?

  17. Timothy Dannenhoffer says:

    Most people with at least one brain cell between their dopey ears know and accept the rules, regulations and intent of the forest preserve – and happily and willingly accept them.

    Then we have the handful of self-centered stupid people.

    That’s just a fact.

    And it deserves mass ridicule.

    Let’s not sugarcoat this because you semi-encourage it when you do so.

    A selfish moronic idiot needs to be called a selfish moronic idiot.

    Be MIGHTY proud of yourself Jim McCulley.

  18. Paul says:

    Tim as usual you don’t have a logical comment to make so you have to revert to your childish name calling.

    I know you don’t like the facts behind this case. But several courts and the commissioner of the DEC have spoken. This is just a desperate attempt to see if they can get around the rules that you are talking about. Like you say you need to learn to willingly accept them and move on.

  19. Timothy Dannenhoffer says:

    No Paul, some things are SO OBVIOUS, that it’s not necessary to debate or make an argument – some things just require ridicule. This is one of those things.

    WHO ELSE besides MORONS are trying to pry their way into something that MOST people consider settled?

  20. Paul says:

    Tim, yes, this was settled as you say. Some people just can’t accept the fact that the “rules” were interpreted correctly by Jim, the court and now the DEC, and probably now the DEC again (I guess?). With hindsight it is crystal clear who interpreted things right and who interpreted them wrong. It just cost the tax payers a whole bunch of money to figure out what the rules were. Doesn’t look like they are finished yet. Too bad.

  21. Paul says:

    If I was someone opposed to the idea that the towns have control over certain roads I would be concerned about how the APA and The Adirondack Council have decided not to leave this as a “settled” matter. I would not have thought that the two “roads” they describe are outside their jurisdiction as they claim might be the case under this ruling? If, through clarification, they are told that these roads are outside their jurisdiction than it may result in some other roads opening up. Without this “appeal” I don’t think this ruling would have changed anything really.

  22. Timothy Dannenhoffer says:

    Paul, when this is all finally settled will you and Jim please scurry away and stay away? You people are disgusting to normal people.

  23. Paul says:

    Tim, I think your comments speak for themselves.

  24. Paul says:

    Phil,

    Maybe you will have to get rid of comments like over at the ADE if this keeps up?

  25. Jim McCulley says:

    I love people like Timmy, has the facts exactly backwards. He is pontificating from a moral stand point that is complete wrong and shows himself for what he and unfortunately many environmentalists are. Which is hate filled elitist with and end justifies the means attitude even when they are wrong.

  26. Jason Pedu says:

    “No Paul, some things are SO OBVIOUS, that it’s not necessary to debate or make an argument – some things just require ridicule. This is one of those things.

    WHO ELSE besides MORONS are trying to pry their way into something that MOST people consider settled?” -Timothy

    The answer to that Tim is the DEC. You are arguing McCulley’s point of view. What is OBVIOUS is your lack of knowledge on how things are unfolding in the world around you.

  27. Jason says:

    “WHO ELSE besides MORONS are trying to pry their way into something that MOST people consider settled?” -Tim

    The MORONS doing the prying would be the Adirondack Park Agency and the Adirondack Council.

    Like you said, most people consider this settled. Nearly two years ago.

    BTW…Jim won.

  28. Eric says:

    Did you know that some states still have old laws on the books that address horse traffic on main streets!

    Isn’t that wild? Can you imagine if someone were to use our courts to fight legal battles based on that?

    I bet most of us would think that was pretty wrong.

    After all, who would look at a modern main street and actually think that an old legal technicality should be used to allow horses!

    So silly…

    And no, Paul, comments here should not be shut down because someone asked you to take a hike. If you being asked to hike were the standard by which websites shut down their comment sections we wouldn’t have many Adirondack online communities left – it seems to happen everywhere you go. I do admire your persistence though! Or maybe it is a lack of hint taking?

    And FYI for those reading who didn’t connect the dots yet. Jim and Jason represent the same interest group, and serve (or served?) as #1 and #2 for a snowmobile club. In case their motives weren’t completely transparent – through their efforts to frame this about law or rights – this is all about going vroom vroom.

  29. Paul says:

    Eric, I don’t think I would equate a law that gives a town (as opposed to the state) jurisdiction over a road to an old law on the books that no longer has any real practical application.

    I suppose that someday highway law will be obsolete but not just yet.

  30. Paul says:

    Eric don’t scare Phil. Remember his defense in the “paddling rights” dispute is based mainly on an old common law that dates back to the beginning of the state.

  31. nike mercurial says:

    Rarely am I satisfied with the typical belonging to the online content I just read today. This really is the material I love to read since it makes me think.

  32. Stacie Muhs says:

    well if it’s that easy, maybe i’ll have to give it a shot.

  33. Marvelous Marv says:

    There is much to debate here, but the real question is to Susan. How did you get Mr McCulley off his ATV to go for a walk? Looking svelte Jim! Keep buring those calories instead of hydrocarbons and some might accuse you of being one of those kale eating liber-ales!

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