Property Rights Foundation of America®

Victory: Old Mountain Road Opened to Motor Vehicles

By James McCulley
President
Lake Placid Snowmobile Club

Thirteenth Annual National Conference on
Private Property Rights
October 17, 2009
Holiday Inn Turf Lake George, Lake George, N.Y.

 

Hi. I'm Jim McCulley. I'm the president of the Lake Placid Snowmobile Club. I got involved with this road issue, I guess, when we were looking for a snowmobile trail to travel south out of Lake Placid towards Keene so we could connect basically the rest of Essex County into the trail systems throughout the State of New York.

What happened, basically, was I knew there was an old town road. As a kid I'd driven on it with my friends. We'd always snowmobiled on it. It was always there. It was something that we always knew was ours. At any rate, in a foolish move, I asked the DEC if I could maintain it and put it on a map and use it as a snowmobile trail and get snowmobile grant money for the maintenance of the trail. I can't remember their exact quote, but what ensued was the DEC questioned the ownership of the road and so, long story short, and this is really a long story so I'm going to give you the Cliff's Notes version, they told me that I would have to take them to court.

So, I drove my snowmobile down the Old Mountain Road, which is the road in question, and called the DEC, asked them for a ticket. The DEC came, gave me a ticket. They pulled the prosecution of the ticket away from the district attorney there in Essex County and they decided they would prosecute me themselves. A DEC lawyer by the name of Chris LaCombe. We had a four-hour trial in the Town of Keene which I defended myself and basically what I did was I just took all the documentation that I received from the DEC and FOIL and used it against them. And it was pretty clear that it was still a town road and they had no jurisdiction over it.

But this is some of the things that were so great about it. I'd never been to court before so I strolled in there thinking, "Oh boy this won't be too tough." Well, like I said, it was a four-hour trial and at the end of it I was totally exhausted, totally wringed out and one time I looked up and, you know, they have a regular J.P. (justice of the peace) judge up there and, this guy, his eyes had gone cross eyed. I swear, he just had no clue what was going on and neither did I but I was just fighting anyway. I was going to fight to the death so anyway, this is great, so I'm trying to put evidence in OK and I don't know how to put evidence in. I mean, I've never been to court before.

So the State's attorney, this Chris LaCombe, says, "Well, if we're gonna do this we're gonna do it right." And he takes my evidence and puts it in for me in the proper manner. So, that way it's legal, which I thought was fantastic, you know, 'cause, hey, I didn't know how to do it. And things were going on like this in this trial and at one point I placed into evidence the constitutional amendment for the Forest Preserve Act, which states that nothing in this act shall prevent or operate to prevent the free use of any road, stream or waterway. To which Mr. LaCombe goes, "I just want it noted that that law's from 1895." To which I retorted, "I just want it known it's from the Constitution of the State of New York."

We go through this whole shindig for four hours and we get all done and, like, I mean I'm exhausted and I've got no idea even what I'm gonna do next. They get up and they do, Chris LaCombe does, thirty minutes of closing arguments. I have nothing. So, I happen to have this letter from Tom Shearer on the legality of Forest Reserve roads and how they are still constitutional, which I had attempted to get into court before, but they wouldn't allow me to do it. So I just read it as my closing arguments, which everyone tells me that was a great move because that way you got it in anyway.

But anyway, long story short, we get all done and I think we got devastated. My buddy who sat with me through the whole thing, he goes, "Well, I think we did pretty good" and I was thinking, "Boy, I don't know, this is pretty tough." So anyway I realize that we had done fairly well was when we walk out with all the DEC people and all the greens that were there and they were all dead silent. Completely silent. And later I thought to myself about it and I was, like, you know we must have done something right there.

So, long story short, the town judge eventually finds me guilty, gives me a fifty-dollar fine. Let's face it, the guy worked for New York State. I didn't really think I was going to get a good turn out of that, but, anyway, we appealed to Essex County court, to Judge Halloran.

I hired the firm at that point of Pennick, Breedlove and Knowles to take the appeal. It was one of those funny things; I was talking to the girl who was in charge of my case at Pennick, Breedlove and Knowles and she asked how I knew how to get so much into this trial. She said I had done a very good job of getting a lot of evidence and everything. I told her, well, I was a juvenile delinquent. So basically that's the way it went.

We go to Essex County court and after a long period of time there in Essex County court the Halloran decision came out, which was a twenty-eight-page decision that was a slam-dunk that the State of New York was wrong. It was a Town of North Elba, Town of Keene highway, they had no jurisdiction over it. They even agreed that, yes, the Constitution does say that nothing in this act can prevent the free use of any road, stream or waterway. They didn't decide on that particular point, but what they said basically was that the state doesn't have jurisdiction and that it was open, therefore I was free.

So, thinking I had won a great victory, I went out and antagonized the DEC at every possible chance I could just out of sheer joy. We go to a meeting in Tupper Lake and I can't even remember what the issue was, but, at any rate, their time is almost up where they are going to have to either appeal the decision or the case is decided and the road is open. So I'm at this meeting and one of the guys from the DEC tells me that I screwed the trial up so bad that they couldn't appeal that decision. So I though I did a pretty good job there.

So they didn't appeal the decision but they basically put the word out that they were going to ignore the McCulley decision. I think their exact words were that they didn't recognize the McCulley decision on the Old Mountain Road. I think what you should understand is basically what I've done is their road closure policy for thirty years has been illegal. Whenever you see a sign up that says "road closed" or "no motorized vehicle," their "no" signs from the DEC, that's a lie. Period. OK. They are illegally placing those signs and that's the one thing that is really killing them about my case.

But, at any rate, they decided they were going to ignore the McCulley decision and so we were talking amongst friends "What are we going to do about it?" and "OK, Well, we'll drive on it again." So I get a phone call from a DEC forest ranger who asked me if I was going to drive on the road again. Which I replied, "Yeah, I'm going to. Now, definitely."

So we made arrangements to meet the following morning. Me and Mike Vilegi and Jason went and had breakfast first and then headed out. Ten minutes before I got there the DEC forest ranger placed the "No motorized vehicles" signs on the road. At that point I drove down the road, drove back, he gave me a ticket and I figure I'm going to go into state court like is supposed to happen and I'm going to hand them the twenty-eight-page Halloran decision and smile as I walk out the door.

Not so! What they decided to do was take me to what is called an administrative hearing where the DEC is the judge, the jury, and the prosecution. OK? So at this point they had taken the prosecution away from the local D.A. and they were going to do it themselves. And once I found that out I figured I had to have an alternative plan.

Fortunately, I had just met a local young attorney. His name is Matt Norfolk and he's my neighbor. So I went to him, told him what was going on and he goes, "Well, we're going to have to file a civil rights action against them." And so the DEC showed up at my house, they took my appearance ticket away, told me out-and-out you're going to administrative hearing. And so obviously we filed a civil rights action against the DEC in federal court and I'm sorry I'm not good on the dates any more because it's been seven years and I believe we went to trial it would have been groundhog day 2005. We appeared before Judge Homer, a federal magistrate, on what was basically a fact-finding trial but basically we tried whether the road was still open or not.

Once again, I'll try to make this the abridged version of this trial. This one of the things I just will never forget. I don't know how many of you have been in federal court before but I'll never forget Judge Homer saying to the Attorney General's office who represents the DEC in these types of cases, Judge Homer says, "Mr. Monroe, how do you plan on winning?"

"Um, we plan on winning proving that Mr. McCulley drove his truck on the trail."

"Do you mean on 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."

He passed the buck, I'm not kidding you. It was the funniest thing you ever saw in your life. And before I went into this I had my best poker face on ever. This judge reamed them. We got all done there in federal court and it was a lot of fun because, you know, we're a bunch of hillbillies from Lake Placid, we don't know anything. Me and my buddies, we're picking up my lawyer and all the paperwork we had there and we're sort of giggling inside the court and boy, these guys just got hammered. Even the bailiff goes, "Whoa, I've never seen him that mad before."

So we go out into the hallway there at federal court and they've got these large vestibules and we look down the hall and there is the DEC and the Attorney General's office all in a big huddle in this vestibule. All just bemoaning what had just happened to them. I mean it was the funniest thing you ever saw in your life. All of us looked down at once and just started giggling. And we're laughing as we head down the hallway, we get to the judge's chambers, quietly walk by, we get three steps past — ha, ha, ha ,ha, we're laughing our heads off at it.

So, at any rate, the magistrate ruled. He said that the state had no coherent contrary legal theory and virtually no chance of winning. But basically what he said was that I hadn't proved that they violated my civil rights, so therefore they can go ahead with the prosecution. We than appealed to Judge Kahn, which is his boss, and Judge Khan said, "Hey, you know what, Mr. McCulley still has his rights preserved here, but the DEC can go ahead and prosecute him in the administrative hearing."

We expected a fairly fast and speedy trial. About a year and a half later, the DEC finally filed a motion in the administrative hearing under Judge McClymonds to have me found guilty without a trial. It was remarkable. They sent in affidavits. One of the affidavits was from a person who was an employee of the DEC, a gentleman by the name of Tom Martin, who in federal court could not read the State Land Master Plan map— that's that pretty one over there, but when they were taking me to the administrative hearing to have me found guilty without a trial he was an expert on that same map.

And then, of course, there was the woman Carolyn Wiggins who filed an affidavit on the DEC's behalf against me, who, first off, she portrayed herself as a disinterested third party, come to find out she was a DEC employee. Not only was she a DEC employee but she was hired the same week that she filled out an affidavit against me. I don't think there was a quid pro quo there, though. It just totally reeked, what they were attempting to do.

Long story short, about seven months later we finally got to go to trial, it would have been November of 2007. We had a three-day trial in Ray Brook at the DEC headquarters. We just tore them apart. My Lawyer, Matt Norfolk, did just a sensational job. He picked them apart, person by person, I mean it was amazing. I'll never forget when the state finally rested their case, Matt stood and made a motion to have the whole thing dismissed right at that moment and, of course, you're not dealing with a real court of law, but what do they do, he makes his motion and the DEC's attorney stands up and goes, "Well, I don't know any of that case law, so can I write something in later?" "OK." I'm serious, this is how this goes on, literally.

So we then wait, I think it was more than a year. We finally got the final decision in May of 2009, so do the math. Just so you know, they have sixty days to give a decision, but there's nothing that restricts them from taking over a year. At any rate, at the end of that we got a thirty-eight-page decision from the administrative law judge. Thirty-six pages of it were in one hundred percent agreement with me that the road is a town road, they have no jurisdiction over it, they have no ability to close it. And I say thirty-six pages of that, the thirty-seventh and thirty-eighth pages chastise me for not maintaining the road over the past few years and that since there had been a ski club maintaining the road that they deserve it more than me. Of course I would have been arrested for maintaining it.

When the decision came out, the way that the administrative hearing works is the judge makes a recommendation, then the commissioner, Mr. Grannis, decides whether he's going to accept the decision. And he wrote a seven-page basically synopsis of the judges' decision stating the same thing, that it's a town road, the state did not have jurisdiction over it and what they did was wrong. This came out May 19, 2009. Naturally, all Hades broke loose. The enviros just went bonkers. Because what I've done is I've crushed thirty-five years of illegal road closures. That's what happened. OK? That's it in a nutshell.

So we figure this is done, we go ahead and file with the federal court to go back and all of a sudden we get notification in, I think it was around June 3, that the DEC was going to appeal to themselves for clarification of what they said to themselves. Not kidding! OK? So I'm, like, "Oh, great." But what they did was they said, "But Mr. McCulley is no longer going to be part of this. We are not going to be prosecuting him any more." Well, you think I'm going to let you guys overturn this decision without anybody there, you're wrong. So naturally we step back in and at that point the, I'm gonna give or take ten days in there, suddenly we find out that the Adirondack Council has now filed for third party status. OK.

Now, this is a case that was tried two years before this. I mean, how they can get third party status now is beyond me. But, at any rate, they've applied for this and then we find out that the APA is now trying for third party status and the whole thing about it is, you know, for the APA, the way the administrative hearing works is you cannot get third party status unless you're a private entity. A public entity cannot get third party status. So the APA's petition is a joke to begin with and it was a lot of fun when we got it.

Matt called me up and he goes. "Hey, you want to have some fun?" I said, "Sure." He goes, "Come on up." So I show up there, he gives me their whole pile of documents and he goes, "Bring this over to the APA and tell them, 'Untimely.'" So I go driving over to the APA, strolled in, the only person I could find, I was looking for Curt Stiles, but the only person I could find was Jim Connolly who's the Acting Director. And I strolled up to him and I said, "Jim, untimely. By the way you're already ruled irrelevant."

And that is the truth, I think a lot of people don't understand that the State Land Master Plan was ruled irrelevant. OK. It cannot close a road. OK. Number one, highway law is statutory law and that's executive law, which cannot supersede it.

But afterwards we got looking at some of the documents from when the administrative law judge had sent out my decision and, lo and behold, we found that the administrative law judge, before he had sent me or my lawyer a copy of my decision had already sent it out to an environmental law firm in New York City, one in Albany, and what's really interesting about that is the reason I really think that's illegal is the same judge that did this had a ruling in January of 2009 on the same subject and he said it was illegal. So he ruled it himself, yet he sent it to these environmental groups before he sent us a copy.

So I filed FOIL because I wanted to know what was going on behind the scenes with the DEC and all the environmental groups. And I got back FOIL and, lo and behold, when I got back my FOIL request we found that there are letters to the commissioner from the Adirondack Council Brian Houseal telling him that he's got to find a way to win this case basically and giving him case law and such to vacate the decision. And then we find a letter that is called "strictly confidential" from the APA sent to Mr. Grannis stating basically the same thing and that they're the APA and they are relevant which, yeah, right, but long story short, they were both letters that were undisclosed to us.

First off, we thought that was very strange the way they were working behind the scenes there and then we got a number of different e-mails that we found are all between all three of them. From the Adirondack Council, the Residents Committee to Protect the Adirondacks, the Adirondack Mountain Club. DEC staff were sending them e-mails saying "FYI — McCulley case, see attachment." Of course, they never gave me the attachment. But you can see what they were doing. What they were doing was they were asking these people to join against me. OK. And this is once again ex parte communication. They have no legal ability to do this.

And there's one there from, I believe the woman's name is Alison Crocker (DEC Deputy Commissioner and General Counsel). She wrote a letter to Brian Houseal stating that "I guess you caught up with Ken," meaning Ken Hamm, "by now, and know that we won't oppose your motion." Two days later they filed their motion to join against us. The collusion amongst these groups is sickening. And it's illegal and it's really sad.

My federal lawsuit originally was basically just to get my $50,000 back. But, at what point do we decide that they have to be taught a lesson somewhere, somehow? It is just so out of control. Right now, these motions went in during June and July. We're still waiting to find out whether Mr. Grannis is even going to attempt to reopen this case with this clarification thing, which by the way has never been done before in the history of the DEC, a clarification from that. And I am the first person in the history of DEC to ever be brought to administrative hearing for motorized vehicle on state land, too. So that's my story.
###

Questions from Audience:

Audience member: "So you still don't know if you can snowmobile on this road?"

Mr. McCulley: "It's open. The road is open, yeah, yeah."

Audience member: "So you won that one?"

Mr. McCulley: "Yeah, yeah. It's open, they've tried, done every way, finagled, they've tried to get the towns to close it. What I've found interesting was the Town of Keene, I guess, is going to qualifiedly abandon it, which means that the road is owned in perpetuity by the Town of Keene. The right-of-way is and therefore it's open for recreational use, and that's the deal."

Audience member: "There was going to be in a referendum."

Mr. McCulley: "Yeah, they cancelled the referendum idea."

Audience member: "It wasn't legal."

Mr. McCulley: "Right."

Audience member: "How about maintaining the road?"

Mr. McCulley: "The way we read the qualified abandonment is anybody who wants to use it or maintain it, can. So, that's what we're gonna do."

Audience member: "Do you have other roads that might be opened, not you, but your friends?"

Mr. McCulley: "Oh, yeah. This has really opened up a can of worms. I can see there's a lot of snowmobile clubs in, like, St. Lawrence County. I know in Hamilton County there's quite a few of them getting together for a big ride on a road the DEC's attempting to close. I have a few friends here who wandered out onto State land a couple of months back and called the DEC and they refused to ticket them, so I think they're a bit nervous about what's going on here. The whole thing is that no one ever challenged them. One of the big problems is, if you're gonna hire a lawyer to do this stuff, make sure he's on your side."

Audience member: "Do you have your APA T-shirts?"

Mr. McCulley: "Oh, I didn't bring any with me, but I have some new T-shirts out there-the DEC. I have their emblem turned upside-down and it says 'New York State,' it says the 'Department of the Ethically Challenged,' and on the back it says 'Supporting Green Bigotry Since 1970.' They're a great shirt. They're really nice looking, too. They're selling quite well."

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