IN REPLY REFER TO:
March 31, 2008
Mrs. Carol W. LaGrasse
Dear Mrs. LaGrasse:
This is in response to your February 18 and February 25 letters, the former sending a number of items, including the latest issue of your newsletter containing an article about the Department of Environmental Conservation (DEC) plan for the North Country National Scenic Trail (NST) across Adirondack Park, and the latter requesting copies of the Comprehensive Plan for Management and Use of the North Country NST and the Handbook for Trail Design, Construction, and Maintenance. Copies of both documents are enclosed. I apologize for taking so long to reply.
Your article in the latest newsletter is a very analytical examination of what the DEC proposes to do to establish a portion of the North Country NST in Adirondack Park. You have recounted the history of the past 28 years since the trail was authorized, as well as some prior history when the trail was being proposed in the 1970s, quite well. I will try to respond to several questions that you raised. I will refer you to the pertinent pages in the enclosed Comprehensive Plan for Management and Use where appropriate.
You mention that the width of the trail and the width of the land needed for the trail are "hazy." Presently, the trail is generally constructed as a 24-inch tread with an additional 12 inches of brush clearing on either side. Thus, the maintained trail is 4 feet wide. This may increase another foot in the future. The Americans with Disabilities Act standards for making trails accessible to the disabled are being developed at this time. Public comment was accepted for a period of 120 days last year. The final guidance from the Access Board may end up requiring that many sections of trail tread be 32 to 36 inches wide. For a discussion of the width of land needed for the trail, I refer you to the third full paragraph on page 26 in the comprehensive plan.
You also wonder whether lands that are acquired by state or local governments for the North Country NST will be transferred to the National Park Service (NPS). Please see the discussion about securing lands for the trail on pages 18-19 and 25-27 of the comprehensive plan.
Since Congress prohibited Federal Agencies from spending funds to acquire lands or interests in lands for the North Country NST outside existing Federal areas, the only way Federal Agencies (i.e. the NPS) can acquire lands is by exchange or donation. However, beyond citing that authority on the top of page 19 of the comprehensive plan, there has never been any discussion of state and local governmental partners transferring lands to the NPS. So it is an accurate statement for me to state that there is no plan to do so. It is also an accurate statement for me to state that the NPS has no desire to take on ownership or management responsibility for lands along the North Country Trail that are already in public ownership by another jurisdiction. If, on a case-by-case basis, we were approached by a jurisdiction that had purchased lands or easements for the trail that now wanted to donate title to the NPS, we would weigh the matter carefully and critically. If the lands were within an already-established state or local park area (like Adirondack Park), it is very unlikely that we would consider the request favorably. It would create a management conflict for both the NPS and the other jurisdiction.
The hunting issue that you raise on page 4 of your newsletter is one of the strongest reasons why it is not desirable for the NPS to end up with title to the lands on which trail is established. As you note, "hunting is not permitted in National Park Service units." More particularly, hunting is not permitted on lands owned by the NPS, unless specifically allowed by legislation. The North Country NST is not technically a "unit" of the National Park System, but the Code of Federal Regulations relating to national park areas will apply to any lands the NPS end up owning along the North Country NST, and that will include no hunting. Right now, the language about hunting in our color brochure, which you quote, reflects the current, optimal situation.
Regarding the brief on "Liability for Recreational Users of Private Property," you state in your February 18 letter that the paper "belies the claims of New York State's DEC that trail easement grantors will be liability-free. I recall that you pointed out that NPS easement grantors receive the same liability protection that NPS volunteers receive." You asked that we send you documents that describe that protection. We are enclosing a compilation of excerpts on the legal background for that protection.
I would like to point out that your use of the word "easement" in the statement in your letter, as well as in the next to the last sentence of the brief you enclosed, is imprecise. An easement is a set of legal rights in a piece of property, and if a person actually sells or donates an easement for a trail, the liability for establishing and maintaining the trail in a safe condition, as well as the immediately surrounding conditions, would generally (I am not an attorney) transfer to the easement holder. Your statements are actually addressing the circumstances where a landowner is granting "permission" to access and use their land for recreational activities, as opposed to selling or donating an easement. It is important to clearly distinguish the difference when addressing this matter. Using the word "easement" when what is actually meant is "permission" confuses what you are actually trying to say.
This same confusion is introduced into your article in the newsletter near the bottom of the first column on page 4. You state: "It is unclear what liability protection will be afforded to landowners who sell or donate easements for the trail. Under New York State court rulings, owners of property used for public recreation face serious liability concerns." The two sentences appear to be addressing a single situation, but they actually are not. The first raises the question about liability where easements rights have been sold or donated. The second speaks of situations where a property owner has granted "permission." They are very different legal situations. With permission, the landowner retains all liability, except for the relief that may be available under state law and additional protections the NPS may be able to provide. With an easement, liability for keeping the land safe for the activities for which the easement was sold or donated will usually fall on the owner of the easement, not the underlying landowner. Of course, any dispute about liability, frivolous or not, can be taken to court and the court will make the final decision.
We hope this information is helpful to you. If you have any further questions, do not hesitate to contact us.
Thomas L. Gilbert