Compromise gives state agencies ability to determine additional 13 miles of wild forest roads
By Gwendolyn Craig
The Adirondack Park Agency on Thursday issued an interpretation of a 50-year-old road policy haunting it, deciding to allow limited extra access in wild forest areas. Wild forest is the largest land use classification in the 6-million-acre Adirondack Park.
The decision dissatisfied local government, which desired more roadways, and environmental groups, which wanted fewer routes. Board members, however, mostly applauded their compromise on how much can be added to the 211.6 miles in wild forest areas there were 50 years ago.
The 8-2 decision will leave the agency and the state Department of Environmental Conservation with about 13.04 miles of roads left available for them to consider opening, or to leave open, should the state acquire new lands classified as wild forest. The APA is charged with long-range planning and overseeing development in the park, while the DEC manages the state lands.
The decision means if the state were to purchase property with even more miles of roads and classify them as wild forest, roads there or elsewhere in the park must be closed to hold within the cap. The decision, however, could help move along management plans for wild forest sections of the park that have been in limbo partly due to this open-ended policy.
The APA gave itself a way out of sticking to its interpretation, however. In a resolution drafted and printed for the second half of the board’s 7-hour meeting, staff added a clause allowing for a “contrary interpretation by the Agency.” Absent a second interpretation, however, 13.04 miles is the cap.
APA board members Mark Hall and Dan Wilt voted against the resolution, which members spent a few minutes perusing before passing it. Hall and Wilt wanted more flexibility for roads to remain open.
A recap of the policy questions
Wild forest areas make up more than half of the public lands in the Adirondack Park. They permit a somewhat higher degree of human use than in the most protected land category, wilderness. Motor vehicle use, however, is discouraged.
In 1972, the Adirondack Park Agency’s leading policy document, the Adirondack Park State Land Master Plan was created. It states: “Public use of motor vehicles will not be encouraged and there will not be any material increase in the mileage of roads and snowmobile trails open to motorized use by the public in wild forest areas that conformed to the master plan at the time of its original adoption in 1972.”
The board had to determine how many miles of wild forest roads existed in 1972 and today, whether roads accessible to people with disabilities should be included in those numbers, and what would constitute a material increase of roads in wild forest.
The roads accessible to people with disabilities are called CP3 routes, short for Commissioner’s Policy No. 3. The policy was derived from the 2001 settlement in the matter of Theodore Galusha vs. the DEC. Galusha, of Warrensburg, sued the state under the Americans with Disabilities Act. In the settlement, the DEC was to open about 26 miles of forest preserve trails to people with disabilities. Those miles are called Galusha CP3 routes, but the DEC and APA have approved other CP3 routes beyond what was required in the settlement.
Today, there are about 21.6 miles of CP3 routes under the Galusha settlement open and about 16.5 miles of non-Galusha CP3 routes planned for but not yet open.
The board had been considering several interpretations of what is a material increase including less than 15%, 15% and more than 15%. Another interpretation wouldn’t have set a cap.
The decision
The board’s interpretation was proposed for the first time to the public on Thursday by APA Board Member Ken Lynch, who also chairs the state lands committee. The board has been discussing the policy question for the last year, but had not specifically discussed Lynch’s proposal.
Lynch floated allowing an 11.6% increase in wild forest roads from the mileage in 1972. He arrived at this percentage, he said, because it is the percent increase of wild forest lands the state has acquired since 1972. He also proposed counting CP3 routes, but only those outside of the Galusha settlement. He argued that the DEC had no choice but to keep the Galusha CP3 roads open, and thus they shouldn’t be counted in the policy. The 11.6% increase would bring the total allowable miles of roads in wild forest lands to 236.1.
Justin Levine, communications associate for the Adirondack Council, disagreed with Lynch’s reasoning for not including Galusha CP3 roads. A road is a road, he said, and will still fragment wildlife habitat and impact the environment.
Board members, however, felt Lynch’s interpretation was the middle ground of two extremes it had considered. One would have led to an unlimited number of roads being open in a park known for its wildness. The other would have led to imminent road closures in some of the state’s most rural communities. Hundreds of comment letters were passionate on both sides.
“This sits with me the best,” said Zoë Smith, an APA board member and the executive director of the Adirondack Watershed Institute. “I think it does allow us some flexibility.”
Hall did not support Lynch’s interpretation and wanted more flexibility for the future.
“I struggle to support putting that threshold on this board, on the DEC,” Hall said.
Local government, environmentalist groups react
Levine said the Adirondack Council was disappointed with the decision, but was glad the board did not decide to allow a 15% increase, or more, in road mileage.
Jerry Delaney and Peter Bauer also attended Thursday’s meeting and were unhappy with the outcome. They sit on opposite sides of the issue.
Delaney, the executive director of the Adirondack Park Local Government Review Board, wanted the APA to not include any CP3 routes and wanted a more flexible process like Hall. Bauer, executive director of the environmental group Protect the Adirondacks, wanted a much smaller percentage increase in wild forest roads from 1972. Like Levine, he disagreed with the board’s decision to leave out the Galusha CP3 routes.
Bauer, who has brought several lawsuits against the agency, said Protect is evaluating if it will sue over the board’s decision.
“We think they’re on thin ice,” he said. “The APA-DEC set out to expand the roads for motor vehicles and it looks like they were successful.”
Delaney didn’t find the expansion enough. Private citizens could challenge the interpretation by arguing that routes open to people with disabilities are now open to the general public under the APA’s interpretation of a road, he said.
“Whether this is good or not, it doesn’t meet the criteria of what local government wanted, but it’s better than nothing,” he said.
What APA completely disregards in their year-long debate: This is one Park of public and private land. Dozens of miles of motorized dirt roads open to the public exist on private land under agreement by conservation easement. None of those easements existed in 1972. Some of those routes open on private land since 2000 could and should substitute for roads in “forever wild” Wild Forest. In short, there are many hundreds of miles of routes open, no shortage at all. For a planning agency to not even to examine where those private land routes are, map them, and consider their possible role in reducing road uses on public Forest Preserve “forever kept as wild forest” makes no sense to Adirondack Wild.
Forever-wild is the highest available protection for land in the United States. To be forever-wild, a piece of land is legally and permanently protected, often through a conservation easement. Without easements you would not have the land conservation we have today.
Boils down to whether the Adirondack Park should be primarily focused on protecting the natural environment and ecosystem services that ultimately save NYS $ millions by protecting air, water, and forests…
…or, whether adding motorized access for recreation that reduces air quality, water quality, and impacts forests, is more important.
First, a correction: The Galusha case settlement (the “Consent Decree”) did not require DEC “to open about 26 miles of forest preserve trails to people with disabilities.” Only existing DEC administrative roads (roads by State Land Master Plan definition) could be opened to people with disabilities for motor vehicle use. No “trails” could be opened to such use, because the court recognized (by stating it in the Decree) that the provisions of the Master Plan (its many guidelines and criteria) needed to be honored. Also, just to be sure something else of importance here is understood, the court did not direct DEC and APA to open up any particular mileage of such roads for such use. The final mileage was worked out through a long period of DEC, APA and stakeholders’ field work and meetings, and in the end, Judge Kahn accepted what we had all finalized together. (I was personally involved in the tail end of all that work.)
What Dave Gibson is suggesting is a complete rewrite of the SLMP and ECL Article 49 title 3 authorizing CEs in NYS. To start counting mileage on CEs is to treat them as Forest Preserve lands, which they specifically are not. By statute, if said CE lands are ever to be treated as Forest preserve lands they would be “void ab initio.” That means almost 1 million acres of permanently protected lands goes away like the CEs never existed. Not sure that is the outcome Dave is looking for.
So what’s happened here is the APA Board has totally mixed up / mixed together their responsibilities in administering the Adirondack Park State Land Master Plan. There is: 1) WRITING the document (deciding how they want it to direct certain aspects of land planning and management, followed by inserting/adopting the language they think best reflects that); and there is: 2) INTERPRETING the document (answering the question, “What was meant, here?” back when these particular words were written?). The first is often sausage-making (understandably and acceptably), but the second is supposed to be an objective, logical analysis and consideration of the language as others wrote it and interpreted it – and hopefully followed it – historically. APA has just completed one giant, very ugly sausage-making process under the pretense that they were interpreting it. At least, that is, regarding whether or not the mileage of CP3 roads count in the “no material increase” mileage limitation.
To be as brief as I can be…
There are three defined types of roads in the Master Plan, and one of those is the type that is “open to public use” and – in Wild Forest classified lands – subject to the mileage limitation. There are no caveats or exceptions to this written or implied anywhere in the document.
The APA Board has just decided that CP3 roads OF A CERTAIN CATEGORY are indeed of that type of road “open to public use” and subject to the mileage limitation written in the Master Plan, while CP3 roads also “open to public use” but OF A DIFFERENT CATEGORY are not, and so their mileage escapes subjection to the limitation. This of course begs the critical question: What IS this important categorization they’ve come up with – what is it based on?
Is it based on the nature of the “public use”? No. The “public use” is exactly the same.
Is it based on the roads themselves – their widths or any other aspects of their construction or maintenance? No. These roads are apparently the same in such characteristics.
Is it based on some assessment of the various detrimental impacts that roads and motor-vehicle use are known to have on wild areas? (And this focus, as all should know, is the primary focus of the Master Plan.) The answer is, again, no.
It turns out that the supposedly critical difference between the two groups of CP3 roads has nothing to do with anything except THE DECISION-MAKING PROCESS that was behind their opening. That’s all: the nature of the decision-making process. Those first CP3 roads opened to public use were not opened through any APA/DEC initiative. They weren’t opened as a result of some enlightened APA/DEC planning and management actions as they COULD HAVE BEEN (by the existing language of the Master Plan) and as they SHOULD HAVE BEEN (by the existing language of the Master Plan – see the UMP guideline regarding development of opportunities for people with disabilities). They were instead opened because a federal judge finally said to them, “YOU CAN DO THIS” [by the existing language of the Master Plan], “AND SO NOW YOU WILL DO THIS [by the existing language of the Master Plan].
Almost laughably, the APA Board is basically saying, now, “These roads get a “pass” on the limitation because we were so negligent of our responsibilities that we were forced to do what we could have and should have done, but just hadn’t.”
There is no existing language of the Master Plan that can be interpreted to allow for this. Now APA can look forward to even more litigation they are bound to lose. Yet again.
This is doubtlessly a challenging issue, but I’m surprised by the rationale given for the 11.6% increase in road mileage.
People have consistently broached the issue of linking material increase to newly acquired lands (e.g., calculating allowable road mileage relative to total acreage of Wild Forest), but the official response of APA/DEC has been: “Wild Forest Basic Guideline #4 does not identify a relationship between the acreage of Wild Forest and the mileage of public motor vehicle roads.” (see September 2022 APA Meeting Materials)
Whether that is a reasonable interpretation of Basic Guideline #4 or not, I’d make the argument that there are in fact good reasons for avoiding such “mile per acre”-based decisions on road mileage.
For one, it’s very hard to get the logic right. As an idealized example, let’s say that we have a 100 acre “Wild Forest” in the shape of a perfect square, and there is a road from one corner to its center. Such a road would be approximately 1,500 feet long. Now let’s imagine that we acquire another 100 acres such that we now have a 200 acre “Wild Forest”, once again (miraculously) in the shape of a square. We want to ensure that there is a road from a corner to the center of our new “Wild Forest”. We have twice as much land, but do we need twice as much road? As it turns out, we do not; we only need about 40% more road. Doubling road mileage as acreage doubled would, in this idealized example, considerably increase access.
If a mathematical calculation is going to become the basis of a de facto standard, we should be abundantly clear on the implications of the math. Rather than determining total road mileage as a function of miles of road per acre of Wild Forest (relative to the situation in 1972, of course), my suggestion would be to calculate road mileage in terms of square miles of Wild Forest squared. All things considered, this ends up allowing for about 10 miles more road on Wild Forest as it exists today, which won’t make some happy, but it also means that 140,000 more acres of Wild Forest would need to be acquired in order to justify the 11.6% increase in road mileage that APA is proposing.
Or, maybe numbers shouldn’t be the focus of the conversation at all. Either way, the policy needs to be logically consistent. Hopefully the discussion isn’t over yet.
Based on the court ruling McCulley vs NYSDEC roadway miles were in fact illegally confiscated by NYS to create the Wilderness classification. How many more miles beyond the Old Mountain Road have been illegally confiscated from the Adirondack counties, towns and villages in the Park? Before any plan is to move forward an independent investigation by the NYS Attorney General’s office into the total number of miles that have been illegally confiscated by NYS.
I suppose it’s just for the record at this point, but since this article includes a “Recap of the Policy Questions,” I have to argue with its statement about policy that in Wild Forest areas (as a generality, regarding DEC’s management) motor-vehicle use “is discouraged.” Of course illegal motor-vehicle use is, but in all my years here and in my twenty years of APA work in the State lands program, I never saw DEC staff practicing policy that could be called discouragement of public motor-vehicle use.
In fact, when APA staff went public with their first draft of the State Land Master Plan language for basic guideline #4 for Wild Forest areas, the original language DID read that public motor-vehicle use would be “discouraged.” The back story as to why it came out on the other end of the public process weakened to “will not be encouraged” I never did learn, but I was able to make an educated guess. It probably had a little to do with how showing true discouragement would have required DEC to show actions along those lines. Looking sideways and upwards while whistling a little tune would suffice for, “I’m not encouraging that… Nope!”