A Vibrant, Intensely Informative Day
THIRTEENTH ANNUAL CONFERENCE FOCUSES ON ADIRONDACK "PARK"
Speakers weave a tale of progressive repression and depopulation
By Carol W. LaGrasse
The Thirteenth Annual National Conference on Private Property Rights focused back to the reason for the founding of the Property Rights Foundation of America, the desiccation of private property rights and the attack on the future of communities in the vast region denoted in 1973 as the "Adirondack Park." But that was not the heart of the conference. The speeches took the audience, as well as the many speakers themselves as they listened intently to each other, forward through the years and events to a knowledge and understanding of the callous "progress" of wealthy interests and fanatical environmentalists in their never satiated campaigns to make it impossible to work and live in the North Country.
The conference speakers addressed a range of topics from the implementation of UNESCO Biosphere Reserve designation in 1989, to the constant forced attrition of roads and means of access, to the regulatory impositions through the legal process and insidiously through threats and coercion. The event was different from earlier PRFA conferences. It was held at the Holiday Inn Turf overlooking beautiful Lake George, was more close-knit, and was more informal with a large block of time for the participation by the attendees. An intensity and vibrancy spread through the audience as the day continued.
It all seemed to fit together, and, with reservations for the human spirit, it was not happy. I hope that you'll agree in the sense of being drawn into the deep concerns that were elucidated that day.
The Adirondack Park Agency Idea
My speech opened the event with simple theme, how the idea of protecting the Adirondack forest started out with fairness in mind and evolved to an unrelenting, mean-spirited campaign against the future of local people. I quickly took the listeners on a run through the timeline of history-making power grabs in the Adirondacks, from the late nineteenth century when the Forest Preserve was established to preserve navigation on the Erie Canal and Hudson River for that great trade route from the center of the burgeoning nation to New York City to the evil incarnation today and the machinations that same urban wealth, combined with the power of the environmental movement, to minutely restrict private property and suck the land base into the "forever wild" preserve.
The Meaning of the Champlain-Adirondack Biosphere Reserve
To prepare for the conference, Peter LaGrasse, the next speaker, had analyzed most of the major state land acquisitions during the past twenty years by drafting them on the Adirondack Park Agency's large fold-out map o its classifications of every square inch of land, whether government owned or private. He had dug through the documents that he had gathered from around the globe in 1990 as he began this research when the Twenty-first Century Commission on the Adirondacks let the cat out of the bag that the Adirondack-Champlain Biosphere Reserve had been designated and which we had continued to accumulate for the next two decades.
He shared the one most important definition of this Biosphere Reserve, that all the state-owned land constitutes the "core area." In the core area of a biosphere reserve, all human influences are to be eliminated, he explained. By visually demonstrating how state acquisitions of land in full title and conservation easements were filling in the space between pre-existing blocks of Forest Preserve, his map analysis showed dramatically how the basic biosphere reserve goal to depopulate a region that is thus classified is being carried out.
The Takings Clause and Tony D'Elia's Dream
Sam Kazman, Senior Counsel at the Competitive Enterprise Institute in Washington, D.C., had worked with Tony D'Elia when the Adirondack Park Local Government Review Board, of which Tony was executive director, envisioned a Takings lawsuit to bring justice to Adirondack property owners. His talk, "The Takings Clause and Tony D'Elia's Dream," poignantly brought Tony's dream back to life. Mr. Kazman began by remarking that nineteen years ago on Saturday, Tony died bankrupt and heartbroken trying to revitalize a ghost town. He met Tony in 1985 when he was at Pacific Legal Foundation. Loon Lake, where Tony's dream was centered, "was incredibly beautiful, but also incredibly isolated and frozen in time." Mr. Kazman gave an expert perspective on the history of recent years of hopeful major Takings rulings in the U.S. Supreme Court, ending with the Lingle V. Chevron case in Hawaii, which, he said, wiped away a lot of what we thought we had achieved.
Mr. Kazman had not looked at Tony's book, The Adirondack Rebellion, in twenty years. "Tony, you don't know what you've missed," he said. Referring to the seventies, "the decade of environmental hysteria," in Tony's book, he pointed to the ironies of the threat of global cooling pushed by the same individuals who are now prominent in the global warming panic. What does global warming have to do with property rights? You can't do something with your property that causes a public nuisance, he said. But if everything you do contributes carbon, then everything you do is a nuisance. The emission of carbon dioxide by utilities is being litigated as a "nuisance" by some state attorneys general.
Tony had a dark sense of humor, Mr. Kazman said. On "approval with conditions," Tony wrote, "You are allowed to cross the street with the condition that you step in front of the first car that you see." The book is like an Old Testament sage of pain, vision, and destruction. It's got some incredible poetry to it. Tony wrote, "I see Loon Lake the same way I first saw it in 1969 I knew that with love and hard work I would bring Loon Lake back to the gem it had been." On that he was wrong, Mr. Kazman said. "I thought I was a blessed and happy man." But in August 1973 the park came into being. "I thought I'd be able work closely with the APA," he wrote. There he was dead wrong.
Tony wrote, "Since the end of 1975 I have been living a solitary life in Loon Lake There is nowhere else for me to go." He wrote, "You have to acquiesce to what will be," but he believed that it was wrong not to fight it. The Review Board was supposed to advise the agency. But when the government agency is dead set on executing you, advising it how to execute you is the height of insanity, Mr. Kazman said.
Challenging Overzealous Zoning
John Marwell, a principal and co-founder of Shamberg Marwell Davis and Hollis, based in Mt. Kisco, moved the sphere of the speeches to the broader state of zoning around New York. He discussed how individuals are challenging overzealous zoning, the theme of his speech. He talked about the twelve-year legal battle on behalf of the Adirondack League Club against the Sierra Club, which wanted to open up a narrow little creek by having the courts enact a recreational use test for navigability. His firm managed to preserve the legal principle that navigability is determined by a water body's traditional use for trade, travel, and commerce.
He said that SEQRA, the State Environmental Quality Review Act, has created a monster that wouldn't have been recognizable back in the 1970s. A project he has just dealt with has a 46-age scoping document, which can best be described as a table of contents for the environmental analysis. SEQRA should be reformed with legislative relief, he said.
Challenging overzealous zoning should be done before it becomes law, Mr. Marwell said. Watch the calendars. Go to meetings. Get to public hearings. Challenge the precepts on which it is based, because a lot is built on junk science. Next, create enough protest to get them to do what the people want. Bring a lawsuit. But this is really expensive, time consuming. It's like surgery, a last chance. This can be an Article 78 declaratory judgment action based on procedural compliance or a substantive constitutional challenge. If you have a property affected, go through the variance process. If you can't get approval, you may get into court.
The vested rights bill, which he is involved in, came close to getting enacted, but got derailed and now has attracted environmental attention. In New York State you don't have vested rights until you have a shovel in the ground and make substantial improvements in reliance on the approval.
Seek legislative relief. Identify the fights. Pick battles carefully. We have wetland rules with conflicting requirements from different agencies. Wetland regulation cries out for legislative relief, he said. We also have local regulations for steep slopes, aquifers, and other "overlays," and now biologic corridors.
In the Lewis Family Farm case the APA imposed a $50,000 penalty because the farmer built high-quality houses for management, but the appellate court said in July that farm worker housing is exempt from the APA jurisdiction. The court did not have to defer to the APA's interpretation of the law. Because of the cost of litigating, sadly, in most cases it is probably easier to go along with the impositions. Mr. Marwell emphasized that financial accountability is desperately needed because zoning officials have been satisfying only the anti-growth groups.
NATIONAL & INTERNATIONAL CONNECTIONS
United Nations World Heritage Sites
Casey Hammond, a member of the Republican Legislative Staff of the U.S. House of Representatives Committee on Natural Resources, spoke about World Heritage Sites, which began the section of the conference entitled "National and International Connections." The topic is relevant to both New York State and the Adirondacks because a proposed World Heritage Site known as Olana that would have been a thorn in the side of property owners in the Hudson River Valley was just defeated during the nomination process and because, in the early nineties, some environmentals explored the possibility of designating the Adirondack Mountains as a World Heritage Site.
The beginning of Mr. Hammond's speech was revealing. He spoke of the similarity among federal designations for landscape protection. He discussed a new BLM (Bureau of Land Management) proposal to create a National Landscape Conservation System. The proponents used a familiar argument that the 1,000-page bill "would change nothing," but "would protect values."
It should be noted that, not a month after the conference, Rep. Maurice Hinchey (D, N.Y.) proposed legislation to fund a study about creating the Hudson River Valley National Park from the Hudson River National Heritage Area and the Hudson River Greenway. Back in 1994, if we opponents had even hinted that the Hudson River National Heritage Area proposal, which was also to be "non-regulatory," etc., etc., could lead ultimately to National Park status, we'd have been ridiculed.
Mr. Hammond drew a parallel between the UNESCO World Heritage Sites and the proposed BLM National Landscape Conservation system. World Heritage Sites, although they possess treaty status, are bound by a convention that purports to be non-regulatory. However, the Clinton Administration drew on the influence of an international team from UNESCO that issued a "World Heritage Site in Danger" declaration for the Yellowstone National Park. The "danger" was that the New World Mine that was being planned on 1989 outside the park within an area that environmentalists consider to be a "buffer zone," which is also a Biosphere Reserve term. The Administration forced the mine to be cancelled even after it had met all federal and state regulatory requirements. However, advocates always argue that World Heritage Site status "does nothing."
Mr. Hammond went as a member of the U.S. delegation to the meeting of the World Heritage Site convention in Spain this year with representatives of the National Park Service and the State Department. He tried to keep preconceived notions out of his mind, but his recollections are astounding. Ethiopia was in process of receiving a designation of a "World Heritage Site in Danger" because it had not done enough to eliminate its park of grazing and remove the human inhabitants. The United States sent money to help remove the people from the park. No one said anything in opposition. The delegates just scribbled notes as though they were given instructions from the Ark of God, Mr. Hammond remarked.
The City of Dresden, Germany, was delisted as a World Heritage Site because the city had built a bridge that was opposed by the committee. The committee felt that if they did not delist the city the credibility of the convention would be challenged.
The committee cannot directly stop anything in the United States, Mr. Hammond said, but it can deliver instructions to the National Park Service. The National Park Service and State Department work against local interests. So much for the claim that the listing "does nothing."
However, Mr. Hammond pointed out that in the Congress there are still people who understand private property rights. National Heritage Areas used to fly through, but now the vote against is particularly strong if they hear from constituents beforehand. Constituent communication is important afterwards, as well.
National Heritage Areas: Offshoot of the Adirondacks
In the absence of Robert J. Smith because of illness, I shared information from some documents related to the Adirondack roots of National Heritage Areas that I had never cited before.
The oldest document is from 1975, entitled "Green-line Parks: An Approach to Preserving Recreational Landscapes in Urban Areas," prepared by the Environmental Policy Division of the Congressional Research Service at the request of J. Bennett Johnston, Chairman of the Subcommittee on Parks and Recreation of the Committee on Interior and Insular Affairs of the United States Senate. In the report is a chapter entitled "Precedents and Antecedents: The Green-Line Parks" that contains a large section entitled "A different kind of park." The long discussion about precedents is largely about the Adirondack Park. "The Adirondack Park legislation is possibly the most venturesome in the nation from the standpoint of comprehensive open space protection and the maximization of recreational potential in an area that is largely in private ownership," the report states. In a discussion of lawsuits on the "takings issue," APA Planning Director George Davis is quoted with optimism, "We think we are on solid ground," after the first such litigation was decided held in favor of the APA.
The Adirondacks are discussed as a model for the National Recreational Areas being proposed by the National Park Service. The region is viewed as a "self-defining recreational landscape," after which a long discussion follows about areas now familiar as a result of major preservation schemes, such as the New Jersey Pine Barrens. The possibility of a Federal "green-line park program" (quotations in original) is discussed in depth, including the role of the states. The problem of a legislature such as New York's voting to take away what is traditionally local government power is dealt with. An interesting observation about allowing some local government participation is, "While local governments might be represented on such an administrative body, they probably should not be able to control its decisions too easily."
The second document is much shorter, but it is important because it was issued by the National Park Service in 1992 with the title, "Review of American Heritage (Area) (Landscape) Program Concept Paper," and requests comments on the Park Service's attached paper by that name. The document describes American Heritage Landscapes as public-private partnerships not administered by the federal government, with a two-tiered system of American heritage landscapes and state landscapes, as well as a three-tiered system involving local heritage landscapes. The study includes an appendix entitled "The Evolution of the Heritage Landscape Idea." It is not particularly accurate factually, but is important because it places the Adirondacks as central to the thinking of the creators of the heritage landscape program. The discussion of the evolution begins with this short paragraph about the Adirondacks:
"One of the earliest examples of this concept in the United States was formulated in New York State in 1894 with establishment of the 6-million-acre preserve known as the Adirondacks. Over the years an innovative partnership alliance has been established between public and private interests to preserve the heritage of this area for economic, as well as conservation purposes. This type of broad-based support and local and state enthusiasm for heritage preservation has been a major ingredient of other partnerships throughout the United States."
These references disclose the fact that the Adirondack Park was central to the genesis of recreation areas, heritage areas, and other forms of regional landscape preservation.
Adirondack Car Free Day
Sam Kazman gave a short talk, "Adirondack Car Free Day," to entertain the attendees during the time left open by the illness of his friend "R. J." Smith. "September 22 was World Car Free Day," Mr. Kazman began. Having lived first in Brooklyn, and then in Falls Church, Virginia, he said could understand a person always having to be within two or three miles from a subway. But what about living and working in the Adirondacks without cars?
"Car Free Day," is based on fiction, Mr. Kazman said. The photos of Car Free Day always depict a sunny day and healthy people who are never carrying a baby or groceries. One of the signs in Seattle when part of the city was blocked off to cars was "Honk if you love car-free day."
The main tenet of the people who are behind these observances is, "If mass transit can't be brought to you, you'll be moved to it."
The car, printing press, and computer chip are the three most freeing inventions of all time, he said. Yet the car is demonized in the U.S. However, the car eliminated the crushing isolation of rural life. Behind the Iron Curtain anyone would trade his mother for a car. The order of importance there is a private apartment, a telephone, and a car. The Soviets wanted to show "Grapes of Wrath" to debunk the supposed prosperity of everyone in the U.S. But it backfired. They stopped showing the movie because in it poor people fled the poverty where they lived with all their possessions packed in their vehicle. "Why, even the poorest people have a car!" the audiences exclaimed.
A vehicle that lets you go whatever you want when you want is the worst vision of a central planner, Mr. Kazman said. The Alabama boycotts succeeded because of the car. In Britain when the railroads appeared, the Duke of Wellington complained, "They'll just allow the commoners to move about needlessly."
The Biosphere Reserve in Action: Adirondack International Connections
Howard Aubin, a member of the Black Brook Town Board, has been a volunteer advisor of APA victims and an advocate for the future of the local communities the Adirondacks for at least two decades. He spoke about the injustices that the government and paramilitary groups inflicted on the peasants during the time that the Calakmul Biosphere Reserve was being implemented in the Yucatan in Mexico. He questioned why Brian Houseal, who was the head of the office of The Nature Conservancy in Mexico that was involved at the time with the Biosphere Reserve and UNESCO was hired to the $140,000 yearly position of executive director of the Adirondack Council
Mr. Aubin related some history of recent peasant uprisings in the Yucatan. He said that in 1982, the lands previously controlled by the peasants, where their rights had been recognized by the Mexican government, fell under control of planners. Their solution to conflict was to get the people out, Mr. Aubin said. By 1994, the descendants of the Mayas were facing extermination. The areas where the peasants lived were classified as "core areas." "Buffer areas" were awarded to oil and cattle interests and wealthy supporters of the Biosphere Reserve. Overlooking the Gulf of Mexico, the property was available for retirement homes.
The problem was that the peasants didn't want to leave and they were being starved out, Mr. Aubin said. Paramilitary groups formed and peasants were killed. This prompted the peasants to get on the buses and leave the area.
In March 1997, however, some peasants stopped the busses that were removing people. They held police hostage, demanding food and that the government cease the evacuation. The removal of 7,000 people and 21 communities was stopped. During the conflict, a research station was burned to the ground. In a church in Chiapas, paramilitaries murdered forty people, including women and children. The priest cried foul and was expelled from Mexico.
Because of deaths, peasants formed a movement. Part of their stated reasons was because of NGO's protection of biodiversity, Mr. Aubin said. Killing stopped when the peasants threatened a "two for one" campaign. Then the Mexican government sent out military troops, but not to protect the peasants. People outside didn't pay attention, Mr. Aubin said sadly.
IMPLICATIONS OF ADIRONDACK LEGAL ISSUES
Confronting APA Legislation by Regulation
Dennis Phillips spoke about the lawsuit that he is handling on behalf of nine counties and eight towns, as well as organizations and individuals, who are trying to overturn new regulations that the Adirondack Park Agency issued last year that would severely restrict property rights. Mr. Phillips, whose talk was entitled "Confronting Legislation by Regulation," is a principle in the Glens Falls law firm of McPhillips, Fitzgerald & Cullum.
The conference had brought together again a number of people who led a successful movement during the early nineties that defeated every attempt by environmentalists to pass the legislation to implement the onerous recommendations of the Commission on the Adirondacks in the Twenty First Century. Among members of the Adirondack Fairness Coalition at the meeting were both Mr. Phillips and Fred Monroe, an attorney who is now the chairman of the Warren County Board of Supervisors. Mr. Phillips said he was thinking of "how our paths have converged after the years. This time twenty years later we are now older lawyers Fred is Chairman of the Board of Supervisors. Fred got the towns and counties together."
"The APA has the power to adopt rules and regulations and exercise powers granted by law. We learned that they decided to take this power seriously and that it was a legislative power," he remarked facetiously.
He spoke first about the new rule taking away shoreline expansion rights for pre-APA houses. "The grandfathered property rights provision was put in place in 1973 so they could have flexibility, not be frozen in time from shoreline expansion," he said. "This was what Glenn Harris negotiated for the people of the Adirondacks."
"For a pre-1973 house, you had the option as a property right to expand, tear down, as long as you stuck to the same distance. It was a boon to the property owner and to the communities." He said it was one of a host of APA regulations that were in effect for 35 years.
"Now, in 2008, they decided that the law shouldn't be that way. Now, if you want to increase laterally, you have to get a variance. Now if you want to increase inside the setback rule, you have to get a variance and now if you want to go up...a variance," he said. "They have turned the regulation upside down and reversed it. This is legislation."
In the Adirondacks, freshwater wetlands are administered by the APA. The APA has the idea that you're getting something if you have 40 acres wetland and 10 acres upland and you sell the 40 acres to make the upland non-jurisdictional. They call that "the wetland gerrymander," Mr. Phillips said. So they changed the law and issued a rule to create a 200-ft. setback to make a lot configuration jurisdictional. "They get jurisdictional for everything." he said. The APA act gives jurisdiction "inside a critical environmental area involving wetlands." The Freshwater Wetlands law gives jurisdiction for "activities that might impact wetlands." They combined these into the new rule.
What they're now doing is hearkening back to the Twenty-First Century Commission report, Bob Glennon's legislation, he said. It never passed. Everything they couldn't get there they trying to get now.
They are also trying to impose new rules on non-jurisdictional hunting and fishing cabins and to take away the rule that allows a lot to be recognized automatically when land is divided by a road or waterway, he said, and the lawsuit is challenging these also.
"This is a first for a group of towns and villages who've sued an administrative agency. This is elected officials suing appointed officials," he said to enthusiastic applause.
(Bulletin: State Supreme Court Judge Robert Muller in Essex County issued a split ruling on November 19. On the county and town side he said that the new hunting and fishing cabin rules exceeded the APA's power and the old "natural subdivision" interpretation should stand, but he supported the APA on its new shoreline setback rule. Both sides were considering appeals.)
Conservation Easements and the Adirondacks
James E. Morgan of the law firm Galvin and Morgan in Delmar, New York, discussed the use of conservation easements in the Adirondacks and the state as a whole. "Conservation easements are some of the most widely used and abused terms used by the environmentalists," he began. His professional involvement has ranged from the 1999 lawsuit we brought to stop the state acquisition of conservation easements on 110,000 acres of land that was owned by the Champion International Corp. in the northern Adirondacks to representing landowners in the Long Island Pine Barrens who were resisting the forced imposition of transferable development rights under a state plan for preserving the Pine Barrens that was passed in 1993.
He said that, typically, the idea of conservation easements, where development rights are purchased or sold to the town, is to save farmland from developers and stop them from destroying the views. Farmland is more valuable for development. When someone is approached, it is all done in the name of doing good.
New York State started moving away from common law in the 1840s, he said. It used to be that control of property was limited to life in being plus twenty-one years. You couldn't rule the property forever. But the perpetual conservation easement is now recognized in state statute. A parallel example is Article 14 of the State Constitution, which states that the Forest Preserve is to be "forever wild," never to be not leased, sold, exchanged.
Mr. Morgan said he was approached by someone who was told that because of a conservation easement on his land he could not build a shed. But he hadn't known that the conservation easement had that meaning. "If I can prove that there was fraud," Mr. Morgan said, it might be possible to break the easement. "An easement locks you in."
New York State has allowed not-for-profits to sue with standing to enforce conservation easements, Mr. Morgan said. The courts have allowed the non-profit to take a conservation easement on municipal property. The easement is given to the NGO to enforce. Mr. Morgan's appeal of this method of enforcing the easement was denied in the Court of Appeals.
Mr. Morgan said he has questions on the acquisition of land by the state. The acquisition is brought to protect it for the use of the people. It may be unconstitutional to acquire land for "forever wild" as a partial holding (a conservation easement), where logging is allowed.
ADIRONDACK LAND & ACCESS ISSUES
Hunting Impact of Land Acquisition
Susan Allen is the publisher and editor of the Adirondack Park Agency Reporter and owns publishing business, Adirondack Maps, with her husband. She spoke on the "Hunting Impact of Adirondack Land Acquisition."
She put the present-day situation in the Adirondacks in perspective by beginning with a quotation from Thomas Hardy's novel, Tess of the d'Urbervilles. The story is set in rural England the nineteenth century. She quoted: "A depopulation was going on." Families were moving off the farms as very large farms displaced the long-time small leaseholders. And village life also declined as "the banishment of some starved the trade of others, who were thus obliged to follow" them "to seek refuge in the large centers."
Returning to the present, Ms. Allen said, "Obviously the Adirondacks are not being taken over by large farms, but it is the same downward spiral that Hardy saw, as land is gobbled up by the state for Forest Preserve. It's what is happening in the Adirondacks as a whole, like other speakers have mentioned from the Adirondack Association of Towns report, as school and year-round populations decline, and it certainly starves the trade of many businesses here, including mine."
"Carol had asked me to make the list of acquisitions over the last twenty yeara, which shows that about a quarter of a million acres have been acquired in fee and another three-quarters of a million in conservation easements," she said.
"When land is acquired by New York State in fee, it drives out the hunting camps because no structures are allowed on lands that are 'forever wild,'" she said. "My list counts more than 400 camps that have to be demolished or removed, although some of the Champion camps got a reprieve Forest Preserve acquisition also means closure of access roads, and prohibits or severely limits most motorized access. Besides the loss of accessibility, the land becomes less conducive to hunting because of habitat decline when no timber harvesting is allowed."
"Added to the acquisitions are the other actions taken by the DEC, and ratified by the APA through Unit Management Plans, or in some nebulous policy or by way of a lawsuit brought by an environmental advocacy group: prohibition of all-terrain vehicles, capping snowmobile trail mileage, destruction of locally important historic structures such as bridges and fire towers, and closing accessible campsites along roads, even in Wild Forest areas."
She agreed with other speakers that one of the most insidious things to happen over the past twenty years has been the acquisition of conservation easements. The negotiations are held in secrecy. The hunting clubs that are allowed to remain on their leases become short term tenants. The clubs are allowed to post only a small amount of acreage around their camp and have to share the area where their lease is located with the public, which might defeat the purpose of club membership.
In addition there are many reports that the timber companies have drastically stepped up their logging. "Are there cases of cut and run?" she asked. She raised the question that they could be intending to let the land go to the Forest Preserve. "This is a suspicion which many of us believed was the intent of conservation easements all along," she said.
She spoke hopefully of the interest that is developing among sports writers Dan Ladd, John Gereau, and Dennis Aprill to cover these types of issues; Ted Galusha's work to open up land to disabled people; Jim McCulley's lawsuits to take back roads from Forest Preserve; and Howard Aubin's efforts in the Town of Black Brook to defy state acquisition of land.
Victory: Old Mountain Road Opened to Motor Vehicles
The vigor with which Jim McCulley delivered his story, "Victory: Old Mountain Road Opened to Motor Vehicles," could uplift any downtrodden person to action. Against the might of teams of state lawyers, he has won separate rulings, first in Essex County Supreme Court from Judge Andrew Halloran, and this year from the Chief DEC Administrative Judge James R. McClymonds, against the DEC staff who arrested him for driving his pickup truck on Old Mountain Road.
The set of principles that were upheld in Mr. McCulley's court victory should serve as guidance for other towns to restore to full use town roads that the state has barricaded.
Old Mountain Road is a 199-year old road through the state Forest Preserve that connects the towns of North Elba and Keene. In recent years, the Town of Keene has not been working the road, but it had continued to be used for bicycling, hiking, snowshoeing, cross-country skiing, and horseback riding, according to the state's records, as well as by other motor vehicles on occasion. People have traveled around a beaver pond to traverse a section of the road.
In May 2003 Mr. McCulley, who is president of the Lake Placid Snowmobile Club, forced a legal determination of the status of Old Mountain Road by driving his Ford pickup truck past the turnaround in North Elba into the Forest Preserve. Mr. McCulley was cited by DEC and stood trial in the town justice court. He appeared for the four-hour trial without a lawyer, and by almost a miracle, was able to get all his evidence entered into the record, including the constitutional amendment for the Forest Preserve Act that nothing in that act shall operate to prevent the free use of any road, stream or waterway. There was one piece of evidence that they wouldn't let him get entered, he said, "a letter from Tom Shearer on the legality of Forest Preserve roads and how they are still legal." Near the end of the trial, he discovered that he was allowed a closing summation, which was news to him, as was everything else, because he had never gone to court before. So he read the letter instead of a summation, and it became part of the record.
He lost in justice court, but his evidence laid the groundwork for his new neighbor, attorney Matthew D. Norfolk, to argue victoriously upon appeal to the Essex County Court.
After Judge Halloran's 27-page decision in March 2005, the state failed to appeal, but did not seem to accept the determination that the road was open to Mr. McCulley's snowmobile use. So in May 2005, he again forced a legal determination and was cited again by DEC. But the DEC had a new twist. The state prosecuted Mr. McCulley in DEC Administrative Court, where the matter was assigned to Chief Administrative Judge James T. McClymonds.
The hearing quickly looked bad for the DEC staff, Mr. McCulley said. Judge Homer, who presided over the three-day hearing in November 2007, asked the lawyer who prosecuted on behalf of the State Attorney General's Office, "Mr. Monroe, how do you plan on winning?"
"Um, we plan on winning by proving that Mr. McCulley drove his truck on the trail."
"Do you mean the road?"
"N-No, on, on the trail."
"You mean on the trail another judge has said is a road?"
"Ah, well, that's up to the DEC."
Retelling his story, Mr. McCulley, who is deadly serious about defending the local road, made it seem like a lark.
In March 2009, Judge McClymonds issued a 37-page Hearing Report, which established the salient points of the historic record and law and concluded that the DEC staff had failed to disprove as a matter of law "the presumption" that Old Mountain Road continues to exist as a public highway. As such, motor vehicle use is not prohibited, he held.
In May, DEC Commissioner Alexander P. Grannis issued his own formal Decision and Order adopting Judge McClymonds' hearing report, and dismissed the case.
Mr. McCulley continued his talk beyond that point, describing how he is battling some of the latest shenanigans of DEC, including their plan to get an "interpretation" of the ruling and trying to get third party status for the Adirondack Council. Though the freedom of information law, he learned that the DEC was privately sending information about the McCulley case to the Adirondack Council, the Residents Committee to Protect the Adirondacks, and the Adirondack Mountain Club.
Jim McCulley is the first person to be brought to a DEC administrative hearing for motorized vehicle use on state land.
Righting the APA/DEC Access Policy
Ted Galusha described himself as "an eighth generation Adirondack peasant, avid camper, fisherman and hunter." He said that he prefers to pursue these activities on State Forest Preserve and uses a motor vehicle to access the lands owned by the "people of the State of New York" because he has physical disabilities. Then he proceeded to try to somehow cover in one eloquent speech his years of efforts to "Right the APA/DEC Access Policy."
He told how he spent two years in meetings with all interested parties developing a compromise policy for motorized access for people with disabilities only to have it shot down by the governor's office behind closed doors in favor of one the enviros wanted to further their agenda. That began his education in Adirondack policies.
After numerous rallies, protests, tickets and appearances in local courts, he said, "In 1998 we filed suit in federal court and immediately won an injunction opening the roads, trails and areas that they drove on and illegally arrested us on. Three years of fighting in court, later we had a consent decree, signed by the judge as a court order on July 5, 2001."
"Since then the state has chosen to ignore the mandates contained in it," he told the audience. He then enumerated a partial list of the problems that he has with the state's compliance with the consent decree and the Americans with Disabilities Act. As he enumerated the damning list, a sense intensified among the listeners of the evil in the state's betrayal of the law and its disdain for the people with disabilities.
Just two of his particular descriptions of how the state works follow:
"We based the settlement on what existed at the time. In fact, we could only ask for roads and sites that were already open to the public. They have since closed roads and sites to the public and are saying that these are 'new opportunities' for disabled access. The one hundred or so sites in the Hudson River Recreation Area in Warrensburg and Lake Luzerne have been cut down to fourteen or fifteen. Only one site can be accessed by motor vehicle (because I keep removing the barriers). They have even eliminated the two designated 'handicapped sites' that existed until July 2004. In a couple of spots they placed a privy in the middle of the road to prevent access.
"They have closed the most convenient and desirable sites (vistas with beautiful views, waterfront sites, shady sites). A lot of the remaining 'designated tent sites' are in low lying spots where any experienced camper would never set up. One site has, on numerous occasions, been under three feet of water, including the privy. I complained to the DEC and asked what the health department would say to a private property owner who had raw sewage all over. They admitted that it was a health hazard and agreed to move it. That was five or six years ago and it is in the same location despite the risk to the public."
After Mr. Galusha outlined the outrages that the state has committed in the Hudson River Recreation Area, he said, "This is only one area. Many of the same things have happened all over the Adirondacks including 'Shelving Rock' and 'Moose River Plains.' In fact, they have closed all the roads in Horicon that they said were town roads during our settlement negotiations. I got the town to open them to ATV's and the state sued them and won."
Mr. Galusha shared his knowledge about the injustices of many access issues that the APA and DEC continue to impose and his efforts to influence the agencies, but his summary of the state's dealings was devastating:
"The state will not deal honestly or honorably with us. They are totally controlled by the enviros. They have almost completely destroyed the heritage and culture of the native Adirondacker in the name of the environment. Let me tell you, they don't love the environment and nature more than the hunters, fishermen, trappers, campers, the true conservationists that believe in the wise use of our natural resources."
"The state's policies for the Adirondacks violate the U.S. Constitution, the New York State Constitution, state and federal laws, their own regulations, the Adirondack Park State Land Master Plan, human rights, and common sense conservation measures to properly use the resources available to everyone who paid and continues to pay for this land."
The APA's Racketeering
Howard Aubin shocked a number of the people at the conference when he told how property owners were being intimidated by the Adirondack Park Agency. He was able to help them because he is a councilman on the Black Brook Town Board.
"Anyone who has a problem with the APA has a life-changing experience," he said to open his talk. "If the mob was doing what they were doing, they'd be charged with racketeering."
He recalled how, back in the early nineties, he tried to help people who didn't want to sell to The Nature Conservancy their land in the Clintonville Pine Barrens and elsewhere. But being involved in helping people in these situations was wearing. "To see an elderly couple break down and cry" was more than he could handle. So he stepped down.
Recently he was drawn back to his mission of helping people who are up against the APA. "It happened to two of the nicest people I ever met," Mr. Aubin said.
John Maye owned 745 acres in the Town of Black Brook. Years ago he had paid $53,000 for the land. He sold his home to pay for it. He winterized the one-room house and added a shed on back. It was only 784 square feet in total. The place was beautiful, Mr. Aubin said.
The setting of the Maye's property was a spot where Domtar had made a sale to The Nature Conservancy. Coincidentally, Mr. Aubin said, The Conservancy was concerned because he was in Black Brook where the town board had opposed a previous sale to the state. "We had vetoed that deal," he said. "The judge decided in our favor."
So they were concerned. We approved the Domtar sale. They were in a remote APA "Resource Management" area (where uses are radically restricted), whereas the other sales were on town roads and had better zoning.
However, the purchase fell through on the Domtar land. The Conservancy had only timber access rights, not recreational access, which the state required. When the Conservancy approached the Mayes to buy this style of easement, they refused to sell.
The Conservancy came to the Town Board. They needed an easement. If they could get it, they could sell to the state.
The APA hit the Mayes with a $2.96 million fine for failing to obtain a permit to build their house. John May is fighting colon cancer, and the couple is elderly, Mr. Aubin observed. "Several lawyers told them that there was nothing you can do. You'll have to pay a smaller fine and remove your house."
"They came to me," he said. "The APA had three witnesses to say that the house wasn't there" when the Mayes claimed to have modernized it. "So we wrote a letter from the town board asking for thirty days. We said that for twenty years they've been paying taxes."
"They said, you can't prove it. You can't prove it's in the same spot."
"It dawned on meThe Nature Conservancy wanted an easement," Mr. Aubin said. "The enforcement was a way to force them to sell And for 745 acres, there was only one single-family dwelling!"
"We contacted the APA. They came down," he said. "We told them we were going to go to court. We were going to get the information on those individuals who complained and see their relationship to The Nature Conservancy."
Suddenly the fines were dropped.
"We have another case, involving the Adirondack Council, The Nature Conservancy, APA and DEC involving Leroy Douglas, we're working on," Mr. Aubin said. He continued, referring to outrageous influence and intimidation in three more cases before closing his speech. In the Douglas case, Mr. Aubin got a copy of a letter from the Adirondack Council sent in the middle of an enforcement proceeding to Cecil Wray, an APA Commissioner who used to be a member of the Adirondack Council who sits on the APA enforcement committee, urging the APA to impose the maximum penalties on Resource Management and Recreational Use violations. The letter specifically mentioned Leroy Douglas, whose property is on Silver Lake in the town of Black Brook.
"The fear you go through Mrs. Maye was subjected to this. You can't sleep," Mr. Aubin said. "They're trying to take your home away."
Circle of Ideas
A new feature was added to the conference this year. At the end of the event, the floor was opened to the audience and all the speakers for an interchange entitled "The Circle of Ideas." Albert L. Wassenhove, the civic leader of who lives in Ghent, New York, who received PRFA's "New York State Private Property Rights Defender Award" last year, delivered a bracing talk especially thanking fellow veteran Ted Galushathat opened that part of the conference. As the discussion got going, the conversation focused intently on going to court to stop the civil rights violations in the Adirondacks and on making a commitment to reach more people who will get involved in battling the injustices that the speakers exposed.
The Board of Directors of the Property Rights Foundation of America would like to express our appreciation to the donors who helped so generously to make the Thirteenth Annual National Conference on Private Property Rights possible.
The choice of a location at the Holiday Inn at Lake George, closer and more accessible to the people who are being affected by the issues discussed at the conference, was inspired by a generous Educational Outreach Grant from Great Circle Foundation. The Foundation, which is located in East Northport, is dedicated to assisting local grassroots organizations that are focusing on under-served people.
Our faithful Co-sponsors who donated to the success of the annual conference are again deeply appreciated, especially in these rough economic times: Building and Realty Institute of Westchester and the Mid-Hudson Region, Competitive Enterprise Institute, Gardiner Residents for Individual Property Rights, National Center for Public Policy Research, and The JM Foundation.