Outgoing DEC chief rules Old Mountain Road closed
Press-Republican
August 4, 2015
By KIM SMITH DEDAM
NORTH ELBA — Among his final actions as State Department of Environmental Conservation commissioner, Joe Martens decided that Old Mountain Road is not a public right-of-way.
He said the road was closed when the State Land Master Plan marked it as abandoned in 1987, despite the fact that the towns of North Elba and Keene had not voted to vacate the roadway.
CLARIFICATION SOUGHT
Martens' final decision came in response to a request for clarification made by the Adirondack Park Agency and the Adirondack Council five years ago, after former DEC Commissioner Pete Grannis ruled on citizen Jim McCulley's Old Mountain Road case.
McCulley, who insisted it is a town road, drove a snowmobile and also a truck on it to challenge DEC’s move to incorporate the roadbed into surrounding state land.
That triggered enforcement action and related litigation in federal court.
In the end, DEC dismissed McCulley’s tickets and the legal proceeding, paid his legal fees and agreed the road was still owned by the towns.
NO NEW CHARGES
In a 12-page document, Martens found that Grannis overlooked evidence “that the public right-of-way with respect to Old Mountain Road ceased to exist prior to 1986.
"Subsequent recreational use, staff contends, did ‘not re-create the public right of way that was extinguished by abandonment before the recreational use resumed,'” Martens said.
DEC is not “seeking to reinstate the charges" against McCulley and that the decision "does not affect the dismissal of the enforcement action against him,” he said.
VACATED SECTIONS
But, Martens said, “after due consideration” he is vacating three portions of the 2009 order:
- The decision that said the Old Mountain Road was a town road that had not been abandoned.
- The writ that concluded that Old Mountain Road is a legal right-of-way for public use.
- The obligations and responsibilities of the towns of Keene and North Elba in regard to Old Mountain Road.
By doing so, Martens asserts that the State Land Master Plan has jurisdiction to close a town road.
McCULLEY CHALLENGE
Matthew Norfolk of the Lake Placid law firm Briggs Norfolk said Marten’s ruling attempts to appeal an enforcement decision in McCulley’s case.
And McCulley plans to challenge it in court.
“After the final decision by the DEC Administrative Law judge James T. McClymonds, lo and behold, APA intervened, along with the Adirondack Council. Then Acting DEC Commissioner Peter Iwanowicz granted the clarification order on his last day on the job (in 2010),” Norfolk said of the case's history.
“That’s the point; it’s a clarification. They’re trying to use the clarification as an appeal.
“And this is what’s all wrong about it. Whether it’s at trial court level, either Supreme Court or Appellate Division or Court of Appeal, we won’t stop.”
Norfolk says there is no legal precedent for making policy by intervening in an enforcement action.
“It’s laughable," he said. "I found nowhere where a sister state agency — in this case APA — can inject themselves in an enforcement proceeding, let alone after a final decision.
"Anyone with a law degree could not set forth this argument without blushing.”
'POWER OF LAW'
Norfolk also believes the move to appropriate road-closure policy is a dangerous precedent.
“The Adirondack Council and other green groups who hail this decision will say that this has the power of law,” he said.
“But really, if we allow this to stand, the APA and DEC could find this decision is the rule of the land — that Old Mountain Road is closed and that all the roads not properly closed by the towns are also abandoned, whether they are still being used or not.
“It appears that this decision came out as an attempt to set precedent to give DEC an advantage in arguing that Essex Chain Lakes roads are all closed.
"We can think of no other reason why it would come out now.”
MASTER PLAN
At the Adirondack Council, spokesman John Sheehan said they are pleased with the Martens ruling.
He said the State Land Master Plan was designed to carry the same weight as law.
“The commissioner affirmed the importance of the State Land Master Plan regarding acceptable uses of the Forest Preserve.
“This really reaffirms the integrity of the public Primitive Areas, Canoe Areas and Wilderness Areas around the park, which are the places where motorized traffic is illegal.”
POLICYMAKING BY PROXY
McCulley had said numerous times that the Old Mountain Road concern was never about motorized access but about policy precedent, where town and state highway law hold jurisdiction over state land uses assigned in the 1980s.
In his decision, Martens said the towns never contested the State Land Master Plan finding that the 3.5-mile road had "been closed and the area now fully conforms to wilderness standards."
In asking for clarification, he said, APA found that the towns of Keene or North Elba never contested the Master Plan regarding Old Mountain Road "at the time of the Master Plan adoption in 1987.”
Martens said the 2009 decision should have been limited only to McCulley’s rights to use the road, “because neither the Town of North Elba nor the Town of Keene was a party to the proceeding.”
NO PUBLIC RIGHT-OF-WAY
The outgoing commissioner also agreed with legal position put forth by the Adirondack Council: “New York courts have held that the filing of a certificate of (highway) abandonment by the town superintendent is a ministerial act, and if the evidence demonstrates that the road has been abandoned by six years of non-use, then the road is deemed abandoned by operation of law, not by filing the certificate,” Martens said.
He went so far in his decision to say that no right-of-way exists for public use of Old Mountain Road, even though it is a popular hiking path, cross-country ski trail and is sometimes used for horseback riding.
“The Master Plan and the related legal arguments ... make it clear that Old Mountain Road had been closed and abandoned and that no legal right-of-way for public use existed," he said.
CONFLICT OF INTEREST
When Martens left his post last Friday, the DEC named attorney Marc Gerstman acting commissioner.
He was the attorney of record for the Adirondack Council in its application to intervene in the McCulley decision.
Norfolk points to what he sees as a conflict of interest with DEC’s position going forward.
“It would look awfully funny if Acting Commissioner Gerstman signed the paperwork overturning this decision,” he said
