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McCulley's Second Victory Is a Knockout
DEC Administrative Judge Rules in Favor of McCulley's Use of Old Mountain Road
State Cannot Selectively Bar Motor Vehicles from a Town Road through Forest Preserve

By Carol W. LaGrasse

James W. McCulley of Lake Placid had already successfully defended his right to use his snowmobile on Old Mountain Road in North Elba into the State Forest Preserve, but staff of the New York State Department of Environmental Conservation (DEC), which has jurisdiction over the Forest Preserve lands, did not seem to accept the court's decision that the road was open to his snowmobile use.

Yet the DEC did not appeal to the state appellate court. Mr. McCulley believed that something had to be done to stop the DEC staff from injecting an element of uncertainty about the public's right to use the road for motor vehicles. Mr. McCulley is president of the Lake Placid Snowmobile Club, which regularly uses the Old Mountain Road, including the 3.2 mile stretch through the Adirondack Forest Preserve.

Jim McCulley with his pickup truck. The DEC staff's second attempt to charge Mr. McCulley for riding his motor vehicle in the Adirondack Forest Preserve was rejected in May by the DEC Chief Administrative Law Judge McClymonds and Commissioner Grannis in a 46-page Hearing Report and Decision and Order.
Photo by Darcy McCulley.

Jim McCulley and his pick-up truck

Mr. McCulley decided to force a legal determination on the status of Old Mountain Road. So on May 22, 2005, he backed his truck past the turnaround in North Elba for about thirty feet into the State Forest Preserve and got cited by DEC. The road begins at State Route 73, extends nine-tenths of a mile to a turnaround where maintenance by the Town of North Elba ends, then proceeds through the Forest Preserve to the Town of Keene. The 199-year-old road has a lot of history. It is thought that this was likely the route over which abolitionist John Brown's body was hauled for burial in North Elba just before the Civil War.

That original decision in favor of Mr. McCulley was handed down by Judge Andrew Halloran of the New York State Supreme Court, Essex County, on March 23, 2005. The second time the DEC brought an enforcement action against McCulley, it brought the action in DEC Administrative Court, where the matter was assigned to Chief Administrative Law Judge James T. McClymonds, who presided over a three-day administrative hearing in Ray Brook, New York, on November 13-15, 2007. Judge McClymonds issued a 37-page Hearing Report dated March 27, 2009, which established the salient points of the historic record and law, and concluded:

"In this case, Department's staff's proof is insufficient as a matter of law to overcome the presumption that the Old Mountain Road continues to exist as a public highway, whether as a town road or other legal public right-of-way. As such, motor vehicle traffic over the Road is not prohibited under the plain terms of 6 NYCRR 196.1. According, respondent's motion to dismiss the complaint should be granted." (Hearing Report, p. 33)

On May 19, 2009 DEC Commissioner Alexander B. Grannis issued his formal Decision and Order, adopting Administrative Law Judge McClymonds' hearing report, subject to his comments (which clarified the force of the hearing findings), agreeing that "the Department staff did not meet its burden in this matter," granting Mr. McCulley's motion to dismiss the complaint, and dismissing the enforcement proceeding against Mr. McCulley.

Commissioner Grannis's seven-page Decision and Order provides a concise summary of the extent by which the administrative rules and state highway law preserve the legal existence of town roads and rights-of-ways created by town roads within the Forest Preserve.

He began with a citation of the regulation (6 NYCRR 196.1) under which Mr. McCulley was charged. "The regulation expressly permits operation of a motor vehicle within the forest preserve (1) on a road under the jurisdiction of a town highway department or the New York State Department of Transportation or (2) 'where a legal right-of-way exists for public or private use.'" Then he explained that both of the relevant exceptions are satisfied.

The Commissioner stated, "Old Mountain Road is a town road that has not been abandoned, and is accordingly under the jurisdiction of a town highway department." Excerpts from his summary outline the basis of his conclusion.

"Regarding the first relevant exception in section 196.1, a town road remains a town road unless it is (1) affirmatively abandoned as a matter of law by a town under New York Highway Law [section] 205; (2) it is abandoned through non-use under the common law; or (3) the State asserts jurisdiction pursuant to New York Highway Law Sect. 212."

"New York Highway Law [section] 205 provides that a town can affirmatively abandon a road in one of two ways. Under the first way, when a road has not been used for six years, the road is deemed abandoned when the town superintendent, based on written consent of the town board majority, files a description of the highway abandoned with the town clerk."

"Under the second way, when a road has limited use it has not become 'wholly disused' a town can pursue a qualified abandonment."

He summarized the criteria and procedures for qualified abandonment.

Neither town had filed a certificate of abandonment, under the first way a town can abandon a road. Nor had either of the towns filed a certificate with its respective town clerk as is required under qualified abandonment, or provided the notice to the DEC that is required for town roads that traverse the forest preserve.

In addition, he noted:

"When a town concludes the process for a qualified abandonment under section 205(2), the town is relieved of all maintenance responsibilities at the public expense, but the highway is deemed available as a public easement in perpetuity, for use by adjoining landowners and others."

Allegation of Abandonment through Non-use
The Commissioner stated that the Department staff attempted to establish that Old Mountain Road has been abandoned under the common law through non-use, but that the staff's own record showed a variety of activities: bicycling, hiking, snowshoeing, cross country skiing, and horseback riding. The record did not demonstrate non-use for any six-year period, including the six years prior to Mr. McCulley's ride down the road in 2005. The Commissioner wrote:

"The lesser amount of vehicle traffic use as compared with the amount of use for other activities does not negate these other significant, regular uses."

"I decline to accept Department staff's argument that under the common law, a road can be abandoned by virtue of non-use for a specific purpose, e.g., motor vehicle use. No definitive New York law exists to support the theory that a road can be abandoned for motor vehicle use, but not for other uses."

The decision by the Commissioner also disposed of the common arguments that the road is no longer a town highway because the town's inventory of town roads does not include the portion beyond the turnaround and because the Town has not maintained that portion of the road or exercised any actual governance over it.

On the contrary, the Commissioner wrote:

"The Town's decision to not maintain the road, and incur any attendant liability for its failure to maintain the road, is not the same as an affirmative abandonment under the applicable law. That the Town's choice of actions here might be questionable given its legal obligations as the entity with jurisdiction over the road is irrelevant to the legal issue presented."

Also a Legal Right-of-way for Public Use
The Commissioner declared that "Old Mountain Road also qualifies for the second regulatory exception to the general prohibition of operating a motor vehicle within the forest preserve — it is a legal right-of-way for public use." This is because the record shows that "scores of people continue to use this road for a number of recreational opportunities throughout the year."

In addition, he emphasized his conclusion about the Department staff's argument that motor vehicle use was no longer legal on the road.

"As I stated in the above discussion of Highway Law [section] 205, I decline here, too, to adopt Department staff's argument that the discontinuance of one use, e.g., motor vehicle use, means that the right-of-way has been abandoned for that use only while preserving other uses. New York law does not contemplate a partial abandonment of a right-of-way."

He declined to consider an order to discontinue Old Mountain Road under New York State Highway Law [section] 212, because it was outside the scope of the case.

Highways Are Assumed to Continue in Existence
The Hearing Report of the Chief DEC Administrative McClymonds shed greater depth on the highway law under consideration and also dealt with fundamental principles of highway law. Pointing out that "the Department has failed to make a prima facie showing that Old Mountain Road is not a town road or public right-of-way," Judge McClymonds wrote:

"Once a public highway exists, it is presumed to continue until the contrary is demonstrated ( City of Cohoes v Delaware & Hudson Canal Co.[1892]; Matter of Van Aken v Town of Roxbury [1995]; Matter of Flacke v Strack [1983]. The burden of establishing that a highway is discontinued is on the party claiming that the highway no longer exists (Matter of Aken; Matter of Faigle v Macumber [1991]; Matter of Flack v. Strack). (Hearing Report, p. 27)

The Commissioner's Summation
Commissioner Grannis decided:

"In conclusion, based on the law and the facts in this matter, Judge McClymonds recommended in his Hearing Report that I grant Mr. McCulley's motion to dismiss this enforcement proceeding against him on the ground that Department staff has not demonstrated that Old Mountain Road was, as a matter of law, an abandoned road pursuant to New York Highway law sections 205(1) (abandonment after six years) and 205(2) (qualified abandonment) or that the road is not a legal right-of-way for public use. Based on the record before me, and subject to my comments above, I agree with this recommendation."

Plans and Significance
Mr. McCulley, who is represented by attorney Matthew D. Norfolk of Lake Placid, has on hold in Albany a federal case that he brought against DEC, where he is objecting to selective enforcement against him. He pointed out recently that other motor vehicle users have been using Old Mountain Road, but have not been charged. He cited a number of examples, including a man who used a bulldozer to work on the road and a chainsaw to clear trees to maintain the road for skiers.

While discussing Old Mountain Road recently, Mr. McCulley pointed out its practical importance as a link between North Elba and Keene. The travel distance to Keene is only four miles over Old Mountain Road, but thirteen miles over Route 73. A beaver dam floods the road in one area, but the court has ruled that the road is unobstructed because the public has kept the route open by traveling around the beaver pond.

Mr. McCulley offered a thought for the many historic observances of the 150th anniversary of the Civil War, which will soon begin. Why not add a reenactment of the travel of John Brown's body from Elizabethtown to North Elba over the Old Mountain Road?

Whatever the future holds specifically for Old Mountain Road, the stunning Hearing Report by Chief DEC Administrative Law Judge McClymonds and the Decision and Order by DEC Commissioner Grannis, as well as the 2005 ruling by Essex County Supreme Court Judge Halloran, should serve premier guidance for the legal treatment of old town roads and rights-of-ways in New York State, especially for those roads and rights-of-way in the Forest Preserve.

For additional information, see:

"Essex County Judge Saved Old Road Through Forest Preserve"

DECISION AND ORDER OF THE COMMISSIONER, May 19, 2009, In the Matter of the Alleged Violation of Article 9 of the Environmental Conservation Law and Part 196 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York, by James W. McCulley, Respondent, DEC Case No. R5-20050613
HEARING REPORT OF THE CHIEF ADMINISTRATIVE LAW JUDGE, March 27, 2009, In the Matter of the Alleged Violation of Article 9 of the Environmental Conservation Law and Part 196 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), by James W. McCulley, Respondent, DEC Case No. R5-20050613

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© 2009 Carol W. LaGrasse
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