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"The Old Mountain Road Saga Continues:
DEC Ignores McCulley's Court Victories and Reverses Its Own Judge's Ruling"

Matthew D. Norfolk, Esq.
Briggs Norfolk LLP, Lake Placid, New York

Nineteenth Annual National Conference on
Private Property Rights
October 17, 2015
The Century House, Latham, N.Y.


I want to give you a little synopsis of where we're going to go with this. I know that Jim has been here before, and Jim, my client Jim McCulley, the McCulley case, Jim is here today with me. He, for moral support, drove down with me from Lake Placid, New York. I want to give you a little outline of where we're going to go today. I'm going to give you a little bit of the history of the case, or cases, because there's more than one, there's several, a history of where we started it was really since 2002 this case has been going on and where we are today. But before we do that, and I apologize if you've heard of this before, if you were here in the past because I understand Jim has spoken, so I apologize if there's some repetition from years' past but I'm going to give it from the lawyer's point of view, if you will, not that Jim — Jim probably could pass the bar now after twelve, thirteen years of this. And I'm going to give you a little bit of my background, too, and I think it's important to do that.

But if there's one thing… I was thinking about this today and over the few weeks that I was preparing. But really it's been the last two days because one of the reasons I'm here is because things have started up again in this case and I've been busy doing that as opposed to preparing for this speech or this discussion. What can you take away from this, today? I'm forty-two, so, you may be thinking, "What can this young buck tell me? You know, what can I learn from Matt Norfolk from Lake Placid, New York, solo practitioner up there?" I've learned from this case and a couple of other cases I've handled in the Park is: If there's one thing you can take away from here, from listening to me today, is that private citizens in the State of New York, they have to, unfortunately, carry the burden of keeping the state government in check.

You can't rely on your elected officials or the appointed officials in state government any longer to be their own checks and balances. It's unfortunate. I'm not running for office. I'm not trying to take a political view here. But I've seen it since 2003. I've seen it. It's the private citizen or the private entities now that must carry the burden to keep the state government, at least in New York, and particularly in the Adirondack Park, in check so that they don't overreach their jurisdictional bounds or overreach their powers.

We've found, especially in this case, that the DEC — the Department of Environmental Conservation — has an agenda. When I say that I don't mean that every employee or every official, every forest ranger out there, or secretary, or lawyer in the department, has an agenda, but there are the powers that be in top positions, in Albany especially, that have an agenda that does not necessarily conform with the statutory mandates or the statutory callings of what the department is mandated or obligated to follow or with the purpose of the department. And in this case you'll see that the agenda seems to be, or one of their policies that they've formed, is for forest preserves, especially wilderness areas. It's a classified area, and they're all through the Adirondack Park and they're in the Catskills. The agenda is essentially to stop access to public lands to members of the public. Say, wait a minute. Well, it's public land. Stop access to members of the public? But really that seems to be their agenda. Or at least stop access to those members of the public that have a different view or different approach of what they want to use the lands for. If your views are aligned with the DEC's views of use for these wilderness areas, then you're free to enter these wilderness areas.

For example, cross country skiing, if you like to hike, count butterflies, or whatever it is, then you would get the pass to go in. And one of the things that we found is there's an infiltration. Again, I'm not trying to be political here, it's a fact in this case. There's an infiltration of environmental special interest groups that have literally taken positions into the Department of Environmental Conservation. The acting commissioner right now, Marc Gerstman was a solo practitioner. He's a member of the Adirondack Council but he's an environmental lawyer who, you'll learn, intervened in this very case for years fighting against us and then all of a sudden was removed from the case. We found out later he was the then-executive commissioner or he had some title — high title — in Albany and now was the very boss of our adversaries in the administrative proceeding and he is there now in the Adirondack Council as the acting commissioner. So, that's what you need to take away. And it sounds conspiratorial. I understand it does. When Jim came to me in 2005, I thought he was conspiratorial and paranoid. It does sound that way. But that's what you need to take away.

And I want to start with this. I actually went to Cornell as a Natural Resources major. I'm telling you that because I wanted to be a field biologist. I used to work for the DEC. I was a camp counselor in Saranac Lake, just to show you that there's some balance there. I'm an avid hunter and fisherman. Jim is an avid hiker. He spends a lot of time in the woods. So, it's not that we don't appreciate and love the wilderness. That's why we live there, here in the Park. It's just that we need the government to follow the law. All right?

So, I'll stop soap-boxing and get to the Old Mountain Road saga. We have our own saga up in the Adirondack Park. Let's start and tell you about what the Old Mountain Road is. The Old Mountain Road is what it's all about, or started to be about. Old Mountain Road used to be called Old Military Road. It was a road from the northwest bay of Lake Champlain and went to Hopkinton in St. Lawrence County. It used to be the main thoroughfare to get from the east to the west into the interior of New York State. John Brown's body, in 1859, was brought across — I think it was at the time Old Military Road — brought across this road after Harpers Ferry after he was executed. He was an abolitionist and I think we all know John Brown. It's an historical road. It was a main route out from the Park or from the interior, from the High Peaks region east to Lake Champlain and then you would go down to the capital. It runs parallel to Route 73. It was created in the early 1800's, by statute actually. We have the paperwork on that. And it's over the years of attrition and with Route 73 being built and installed, its use became less and less.

It connects the town of Keene in the town of North Elba. For those of you who don't know the town of North Elba is Lake Placid. Okay? And in the 70's and 80's it was used for snowmobile use and hunters used it, and such, and also cross-country skiers and recreational use.

Well, Jim McCulley is the president of a local snowmobile club and in 2002-3 he was wondering if he could use it as a connector trail. If you use it as a connector route you could then get up to Plattsburgh and then down to Westport. It could open up a series, a network, of snowmobile connector trails. Lake Placid is sort of isolated because of the train tracks there. He asked the DEC why they wouldn't consider that to be a snowmobile route and they basically said, "Well, no, we're not going to do that. It's an abandoned old town road." But Jim is a FOIL request connoisseur. FOIL is the Freedom of Information Law. He does more FOIL requests than anyone I know. So, at the time or shortly thereafter the DEC — I think it was Forester Tom Martin who told them that Old Mountain Road was abandoned. Little did they know that Jim — and they underestimated Jim and his knowledge — had already had FOIL requests showing proof that the Old Mountain Road was considered even by the DEC not to have been abandoned.

And, in fact, at that time there was an organization called the Adirondack Ski Touring Council. The Adirondack Ski Touring Council is very cozy with the Department of Environmental Conservation. A lot of their members were also members of various environmental groups. They had essentially, actually, worked up for us in this case, and had maintained the road for several years from the 80's into the 90's up until 2002-3. When I say "maintained" I mean really maintained it so that there could be a wonderful path for cross-country skiers. In fact, as you see here, this is a letter from Tom Wahl, a forester in 1996. This is an actual…

Jim McCulley: It's Joe Moore.

Mr. Norfolk: No, but it's from Tom Wahl. This is one of the things I had to tell him often, to be quiet in court. So, this is a letter from Tom Wahl forester, DEC, to Joe Moore, of the Adirondack Council, lo and behold, because the Council apparently was upset about certain things. One of them being a bulldozer being driven on the Old Mountain Road. So, think about this, 2002-03 snowmobiler wanting to use the Old Mountain Road for a connector trail. DEC is telling him, "No, you can't do that. It's closed." Yet, their own records are showing from their own forester — for space I had to cut off the letterhead but you'll see it in the next slide — telling the council, "Oh, don't worry about it. We only had Moriah Shock Incarceration Facility do some work on it." It's a state-funded facility. DEC did this work order for the maintenance within the highway right-of-way. You get the point here. You can read it. And there was a bulldozer used by the Town of Keene. So, obviously Jim wasn't too happy that a state official was, in his eyes, lying to him, okay. And I'll flip it over. There's a reason a forester, except for the bulldozer intrusion into the road, there's not much being done in the bounds of the highway. There's not much being done in this area of wilderness. I should mention that Old Mountain Road traverses the Sentinel Range Wilderness Area, the highest classification or strictest classification of forest preserve land you can have in the State of New York. The highest protections. So, that's where we are in 2002-03.

So, Jim in March of 2003 operates his snowmobile on the Old Mountain Road. This gets very interesting. He gets ticketed for it. They go to the town clerk justice court. He represents himself. The Region Five attorney has a four-hour trial. Prosecutes him. And no offense to the justice of the Town of Keene court, they find him guilty. I used to be an assistant D.A. and the judges there, they're not lawyers. The judge at the town level kind of decided to listen to the DEC attorney and found Jim guilty, if you will, of violating 6 NYCRR §196.2. That's operating a snowmobile on forest preserve land. Meaning if there's not a road there then it's on forest preserve land. In a sense they're finding the fact that there was no road there. Jim hires counsel. Not me. It was in 2003 that he does the appeal. I was still in New York. I'm moving up and he hires counsel and he wins on appeal at the county court level. At this procedure you would go to the county court for an appeal. In a very well-written decision, I think it was thirty or forty pages long, Judge Halloran of Essex County Court writes a great decision, well thought out. Not just because it was ruled in Jim's favor, but because it was right on the law and the facts and reverses and Jim was acquitted. So, at that point, March 23, 2005 the DEC could have filed an appeal. But if they file an appeal at this level they don't go to the Third Department. On this they would had to have gone to the highest court in the state, the Court of Appeals. If that happens you don't go to Appellate Division. If that happens and they lose, what do they do? They create law. They created law here. But in their legal minds or whoever they recruited to come and work for them, they saw this as a county court case that's not significant. But they create law of the land if they go to the Court of Appeals. So, what did they decide to do? By the way, this is the infamous Jim McCulley snowmobile that went on the Old Mountain Road. Should I tell them? I bought it.

Jim McCulley: It's a great sled.

Mr. Norfolk: It is.

Mr. McCulley: Low-mileage cream puff.

Mr. Norfolk: All right. Carol, tell me the time because I will get lost in this.

Carol LaGrasse: Just one quick delay though. Why does that jump occur in that way? Why wouldn't you go to the Appellate Division?

Mr. Norfolk: It's the Appellate rules and it already had one appeal. It went from Justice Court; the Appellate appeal was the county court. They don't go to Appellate Division. The procedure is to go right to the Court of Appeals through the county. That was the first layer, the County Court. That's it. I know it because I had to deal with Beneke (J. David Beneke) and the floating boat house up in Saranac Lake.

All right. So that was March. So, this is where it gets scandalous. In May of 2005 Jim gets a phone call. Now I'm doing this from a high level view. Lake Placid, like every other small town, has grapevines everywhere. So, there was chatter going around. But DEC Forest Ranger Joe Lapierre who lived down the road from us, we are neighbors, he calls up Jim and in a sense he challenges Jim and asks if he's going to drive on the Old Mountain Road. A DEC official calls and asks. Jim had no intention of driving down the road but Jim with his demeanor and what he believes in says, "I'll meet you tomorrow." So, we learn through testimony that they set a time. Forest Ranger Lapierre goes to the site in the Town of North Elba, Old Mountain Road, and puts up new DEC Forest Preserve signs with shiny new nails and waits for Jim. Jim is now in his truck. The ranger videos or photos Jim driving on the Old Mountain Road and turning around. He issues him a Simplified Information which is for the Criminal Court, just like he had before. And shortly thereafter the Simplified Information, as it's called, they called it off. They had to take it back. And then they gave him a long form, which is a complaint still for Justice Court of the Town of North Elba. And then a month later they call him up and say we are withdrawing that. And what they did is they then served him with a DEC Administrative Complaint. And what is the DEC Administrative Complaint? What they decided was, "Well, we've got this Essex County Court decision." Because, frankly, the Essex County Court decision is all he would have to have done. He could walk in with this — and I've got copies if you want it, it's great reading. You walk into the court with this decision and you would have walked out. Any justice would have read it and said it's the law of the land. You've already won. It was a snowmobile but it's the same thing. Now it's a truck. What they decided to do is — and there's no legal basis, no jurisprudence principles, whatsoever, but the DEC somehow believes that they can ignore this county decision — we're going to prosecute him within our own administrative proceeding. And that's what they decided to do.

And by doing so, what have they done? They've stripped him of rules of evidence. It's a very loose procedure the DEC Administrative Enforcement Proceeding. They stripped him of protections, I would say, of rules of evidence. It makes their job easier for putting in evidence. It, again, avoids immediate dismissal by the County Court decision. It also avoids DEC from having a higher burden of proof. In the Justice Court they would have a higher burden of proof because they would have a "preponderance of evidence" in the Administrative Proceeding and "beyond a reasonable doubt" in Justice Court. And, let's be honest, they were betting on bringing this case in front of one of their own despite the fact that the DEC Administrative Proceeding is still a people's court, it's not the DEC's court — I use that term loosely — it's the State of New York. It's the people's court. They were betting on their own judge ruling in their favor in finding him guilty of this violation.

Well, lo and behold, guess what happened? We won! But before I go there I should tell you that fifteen days later we filed a lawsuit in the Northern District of New York for the United States District Court — and there's Jim there with a smile like he's got today — alleging malicious prosecution, violation of civil rights and Constitutional rights. And some people asked this: It's a fifty-dollar ticket. What are you doing? Why are you doing this? You know, it's not like his house is being taken away by some eminent domain, or someone's business is being lost. But at this point it's like if they're willing to do this over a ticket what else are they willing to do for any other serious, more significant matter? And we started trying to question, "Why are they doing this?" And we know why, now. And we'll get to that. But there's Jim preparing to go to Federal Court.

So, that was 2005. A year later the Administrative Proceeding is essentially on hold. They didn't want to go any further with the Federal Court matter pending. We had a two-day trial. It's an evidentiary hearing. We had a two-day trial which is really a mini trial on the very fact of whether or not the DEC could prove their case against Jim of whether he violated 6 NYCRR §196.2, the regulation about whether he operated his truck on Forest Preserve land or not which boiled down to whether Old Mountain Road was a road or not.

And I should say, whether a road is a road or not, once a road is created by law it's perpetual unless proven otherwise. A road's a road unless proven otherwise. It will remain forever. To have a road no longer be a road, whoever has the jurisdiction over the road has to discontinue it by some procedure or act. A town could close a road under certain procedures. The DEC itself can close a road if it has jurisdiction over it by using certain procedures under Highway Law 212 or by lack of use. And by lack of use it has to be for six years of lack of use continual. Six years. And the proponent of abandonment has the burden of proof. So, we don't have to prove that the road exists. Strike that. We had to show that the road was there. But once we proved that the road was there we don't have to prove that it still exists. Whoever is the proponent of abandonment has to prove that.

At the hearing, in bold you'll see here, "The court concluded there exists no reasonable likelihood the DEC will ultimately prevail on the state proceeding." And here's a little extra by one of the decisions and I put it out there. And it says, "The DEC's contention that the road was abandoned by use to its jurisdiction lacks merit." That's a federal judge doing this after a two-day hearing. So, that was February 2006.

Now, that was in response to a motion to dismiss by the State because they said, "Hey, we still have the Administrative Proceeding going on. Let us finish that." So, the judge did agree that he's going to stay our federal court case, we should go back and finish the Administrative Proceeding. So, we go back and have an Administrative Proceeding. By the way, look what year it is now. It's 2007. 2006 is when the hearing was. In 2007 we finally have a trail in the Administrative Proceeding. In between that time the DEC filed a motion to win on the merits by paper arguing ridiculous arguments, frankly. And I don't mean to be so flippant but there were ridiculous arguments. They relied on English law.

Mr. McCulley: From 1615 or something like that.

Mr. Norfolk: I remember the headlines in the Press Republican. "The state jumps the pond." They relied on English law to argue bundles, easements, easement rights, rights-of-way, how to extinguish. They argued that because motor vehicle use is not as frequent as pedestrian use that the motor vehicle rights had been extinguished but the pedestrian rights still exist. But that's not how the State of New York's laws are. If you can show the pedestrian use, cross-country skiing, hiking, are still used as in traversing it — to go from point A to point B — the entire [unintelligible] highway right-of-way exists. You don't parse it out.

And they made a motion. The complaint says that Old Mountain Road was abandoned and he drove on Forest Preserve land. In the motion they said, "All right, if we don't win on that, by the way, we move to close it pursuant to Highway Law 212." Remember I said also they could move to dismiss. They can abandon roads or discontinue roads under their jurisdiction. So, in an enforcement proceeding, which all this is about is whether he has committed a violation or not, they asked the judge to condone or sanction that they're now closing the road. Well, we don't even know if they had jurisdiction. So, the judge said, "You can't do that. That's an administrative land policy decision not in an enforcement proceeding. And, by the way, no, we deny your motion." They should have thrown the case out then but he orders an evidentiary hearing. Who, by the way, was the Chief Administrative Law Judge. So, that was 2007.

Yes?

Audience member: Isn't that an admission that it is a road?

Mr. Norfolk: Yeah. We argued that, too. But it was strange because the jurisdiction was really under the towns of North Elba and Keene. There's boxes and boxes of evidence. We have resolutions. The Town of Keene. We have proof that the jurisdiction is over the Town of Keene and the Town of North Elba. They didn't even have jurisdiction. But I don't mean to joke about it because it's kind of a serious thing. But what are they doing? And I'll get to why they're doing this.

Audience member: That was my question. Why are they going through all this?

Audience member: Because they can?

Mr. Norfolk: Well, yes, because they think they can and they have in the past. Someone says that they can and they usually do. All right. So, this is why they're doing it.

They want it closed. They want to stop access like we talked about earlier. It traverses, crosses the Sentinel Range Wilderness area. One of our earlier theories was that the Wilderness Areas have to be continuous ten thousand acres. In one theory early on we thought that Old Mountain Road traverses that, dissecting it. It would be less than ten thousand acres and strip the Wilderness classification. But I think it's more than that. They've been closing roads like this forever in the Park and probably throughout the state. What they do is… Well, there's the Crane Pond Road — and this is before my time — but they tried to close the road the lawful way. And the locals didn't like it. I think that even some people showed up with shotguns, fisticuffs. There was an uprising. So, instead of dealing with the repercussions of public opposition even whether it's legal or some sort of a protest, what they would do is try to do it by attrition where they would literally, inappropriately, unlawfully put a sign up that says, "No motorized vehicle access." Put it up and then — because they're there forever, the DEC — because of that sign less and less motor vehicle use will actually happen. Most law abiding citizens would ignore that. Oh excuse me I'm looking at Jim. Most law abiding citizens would say, "Shoot. I'm not going to ride my bicycle on that. Because you can't. It's Forest Preserve. I won't take my snowmobile or car on that," and turn around. So what happens is it's the fruit of the poisonous tree.

The poisonous tree is the signs that are up unlawfully so therefore the motor vehicle access or use lessens and then over six years they can say there hasn't been a car on that road and it hasn't been used for over six years. But really it's because of the signs. So, they're trying to close down these roads. That's how they're trying to do it and to avoid the lawful procedures. And it goes back to an agenda.

Audience member: You're absolutely right.

Mr. Norfolk: The ALJ decision really tracked the county court decision, meaning the one that Jim got in 2005. It was right on. ALJ, Administrative Law Judges. Commissioner Grannis — the commissioner at the time — has to ratify it. It's just the rules so the report recommendation from the administrative law judge, Alexander Grannis, doing the right thing, adopted it. That was May 2009. It tracked the county court decision. It tracked the federal court decision in which — I'd like to say I'm a brilliant legal scholar here — but the best thing we did was go to federal court because, no offense to Judge Halloran, it was going to be awfully hard for McClements to ignore the Magistrates Judge Homer and Judge Kahn, who was senior judge of the Northern District, and just kind of shrug them off and say we had the same hearing. We even got in the transcript for the federal hearing. I'm laughing because we shouldn't have got it in. But we got the federal hearing transcript into evidence in the administrative law hearing and he got to read it and to go against the federal court would have been, for an administrative law judge, it would have been kind of like what are you doing? It would have been a mistake on his part, I think. One strike it should have been over with the county court. One strike it should have been over. Two strikes now with Commissioner Grannis, right? The case is over, you would think. What do we do? I'll show you the excerpt. This is an excerpt(1) from the 2009 Administrative DEC ruling. I didn't underline it, he did, meaning the commissioner and the judge. We won. We won. They agreed. The road is within a forest preserve. The road hasn't been abandoned. That's why we won. Okay.

What did we do? (Jim made me put this in.) We go back to Federal Court and guess what. The DEC paid Jim all his legal fees, $58,000 for the federal case and the administrative case.

Mr. McCulley: And they had Smoky hand me the check.

Mr. Norfolk: It's a joke and his legal fees were low, very low. But, this is what happened. From the time of this, I go back to the 2009 ruling, I left out but we still settled admittedly, so we get the decision in May 2009. After that decision, about a month later the DEC staff moves to clarify. This is where we are today. The case is going right back. It started up again this summer. When there's a final ruling like this in May 2009, the case is over. It's the final decision. They can't appeal. The DEC can't appeal itself. There's no more court. It's done. May 19, 2009 the case is over. But DEC staff asks for clarification under some obscure section that they have in their procedures.

They can ask for a clarification. What it's typically for is to ask if there's an administerial mistake in a decision or someone's name is spelled wrong or if they're asking something that's not the final part of the decision. They just want something clarified. I've looked and searched. I've only found one case where they've asked for post-final decision clarification and it had to do with a variance application, not an enforcement proceeding. And most of them were before the final determination. None asked for what they're asking for. They're asking for an appeal. They're asking for a straight-out appeal. But it gets better. They're asking for an entire reversal of the May 19, 2009 decision but they do not want the complaint reinstated by Jim McCulley.

Audience member: I can't imagine Why.

Mr. Norfolk: Because, one, the federal lawsuit. Two, they'll get sued again. And three, it's like a criminal prosecutor losing a case and going to the judge, "We don't want the defendant who was acquitted of a burglary to be found guilty again or retried. But we want all the evidentiary rules, everything that was against us that created bad law reversed." They are essentially asking for an advisory opinion. You can't do that. They're asking the administrative law judge… they're trying to do land use policy-making within an enforcement proceeding to get the law back to where they want it. Right, Old Mountain Road is abandoned. It gets worse. They filed this motion, the Adirondack Park Agency moves to intervene saying, after all this is done, that it moves to intervene to say you've got it all wrong and our agency is responsible for this state land. You got it all wrong. The state land Master Plan is the governing document. It's law. It's fact, too. Whatever it says is fact. You ignored it. The whole decision needs to be reversed. They're silent as to whether or not they want the complaint reinstated.

Then a day or two later the Adirondack Council moves in and moves to intervene. I guess they know everything about Old Mountain Road and they're the source of all knowledge and experts. They move in to clarify. But they seek to reinstate the complaint. The FOIL request expert here does a FOIL request. We find e-mails that this decision went out before we even got it. Before we even got the decision, the 2009 decision, the judge was sharing it with counsel for the environmental groups. It went up before we got it. So, others not party to the action had the decision before we had it.

We've got e-mails from the DEC soliciting Adirondack Council with the Association to Protect the Adirondacks. Basically, as best they can — and I'm trying to be careful here — as best they can without straight out expressly asking, but I see this as a solicitation, asking them to intervene. Unsolicited the DEC will not oppose an intervention motion. So, here we are. They have all of this back-channeling and I make a motion to have them all recused because of ex parte then they say the proceeding is over. Well, if the proceeding is over how the heck can you seek to clarify or move to intervene? Well, guess what? We didn't think this was going to go anywhere. It's a joke. So, we settle and now we're back to our $58,000 check. We settle in March 2015.

Acting Commissioner Peter Iwanowicz — we just sent him a notice of claim yesterday — on his last day signs an order essentially accepting their motions to clarify and intervene. "Yeah, you can do that." Maybe I'm not doing it justification to put in legal terms of how this is absurd, but it's like asking for an appeal after the thing is over. Imagine you and I were suing each other and then you didn't like how it worked out between a legal dispute between you and I on our property dispute and your neighbor a block over and you didn't like it that after the fact that he jumped in. It's ridiculous.

So, Iwanowicz, Acting Commissioner, on his last day, it's almost like the last day of [Unintelligible]. That's what goes on. He signs this decision. Oh my God. Are you kidding me? That was 2010. And then we realized that they were basically shopping for a sympathetic commissioner for five years, for someone to sign the final decision. Basically, what they did was they accepted leave. They're saying we'll accept their motion and now they've got to decide whether they're going to actually reverse Grannis's decision or not. Does that make sense?

July 22, 2015 Martens issues his ruling. He completely and utterly guts the administrative law judge's 2009 decision and Grannis's that adopted it. He utterly reverses everything, ignores decades of law that was cited in the federal judge's case, the county court case... I forget to mention we have a Paul Smiths case in eighteen something that is right on point and discusses the Old Mountain Road. We have that case, too. He ignores all of them and kind of throws the DEC prosecuting attorney under the bus, and says he didn't do this right, he didn't do that right. He doesn't reinstate the complaint against Jim which is hypocrisy. If there's no town road you've got to find him guilty. But they don't. And here's an excerpt. You can read it or I can read it to you out loud.

"As previously stated, this decision and ruling does not, in any way, affect the dismissal of the enforcement action against James W. McCulley. However, it was a critical omission for the Master Plan not to be proffered on the issue of the status of Old Mountain Road for the Commissioner's consideration. The Master Plan and the related legal arguments in the submitted papers, as well as the record below, make it clear that Old Mountain Road had been closed and abandoned and that no legal right-of-way for public use existed." (2)

So, then it goes on. The charged are still dismissed, And so, that's where we're at July 22, 2015. The good news is that the Town of North Elba is furious and they passed a resolution just this week and they're going to do an Article 78 themselves and challenge this decision because — and this is how the DEC operates — they secede the Town of North Elba in this decision. They're afraid, because they got a certified copy, that the DEC is going to say, "Well, we sent you a copy and you didn't do anything about it." Because in that decision, the recent one, one of the rationalities is the decision of stripping the jurisdiction of the Town of North Elba that they're saying in this decision. It says it's not the Town of North Elba's road anymore. The DEC says they never said anything when the state land Master Plan came out. That's what they're saying.

So, my firm is going to represent the Town of North Elba Article 78, my partner Ron (Ronald J. Briggs) will. And we're filing an Article 78, also, to challenge this. Arguably Jim doesn't have to because they didn't reinstate the complaint against him but we're going to. And finally, we filed yesterday Notice of Intention of Filing Claims. And that is a necessary document that we have to do. We feel we have a strong argument that by proxy the State of New York subjected Jim to the reinstitution of enforcement proceeding, a malicious prosecution. By proxy meaning they knew they shouldn't have and couldn't have — at least the DEC — invited a private entity, the Adirondack Council, to step in and prosecute Jim by asking for the complaint to be reinstated and the APA was silent. I think if you want to affirm it, if you want the complaint not to be reinstated when you ask for an appeal, you need to affirmatively state that. So, we filed this — I know Jim wants to go — but we're contemplating that. Now, it's not about the money. It isn't. It's about the checks and balances. Any questions?

Audience member: Just a question on this. You've indicated in your presentation there's a lot of question about public officers', elected or appointed, ethical standards. Has anybody thought about prosecution for malfeasance or not-feasance or misfeasance against these particular individuals?

Mr. Norfolk: Did we contact the Inspector General on this case or not?

Mr. McCulley: Yeah, we sent the ex parte communications to the Attorney General's office. Another part of that is it is so inbred in these [Unintelligible], they do so many behind-the-scenes wheeling and dealing that literally, I recently filed a FOIL again and this time the DEC's not giving me anything. This is the way they operate. The DEC's run, especially in the Adirondacks, by the Adirondack Council.

Mr. Norfolk: In the Attorney General's office they're usually in the loop. They're CC'ed and I don't know any prosecutorial office that would even accept this case. I think a more egregious… I had the Douglass case where there was really unseemly things going on. I contacted the Inspector General. This where someone has lied where property was involved and they just sent it back and said they're not going to investigate it. I think the only way to do it in private lawsuits. I don't know who would take this.

She has one question.

Audience member: Do you have this presentation on the net anywhere?

Mr. Norfolk: I don't have this presentation on the net.

Ms. LaGrasse: We'll be doing a complete transcript and later it will be on the web.

Mr. Norfolk: I've got the cases of the county clerk case and the DEC case where we won. And I know that the DEC has been waving their banner with this most recent case. That's up on their web site.

Audience member: The other issue I would raise is that I work for it closely. I'm from Connecticut. I was with Susette Kelo, a wonderful woman, and, of course, she had the Institute of Justice that represented her. I'm also involved in a lawsuit by itself as it relates to my property and I won't get into that. But frequently people are thwarted in their efforts because they don't have the money. Government can take down on them and impact them and their property and frequently, though, they have to accept it.

Mr. Norfolk: That's what they're banking on. That's what the state really is banking on, usually.

Mr. McCulley: One of the state lawyers during one of our many brawls with them came to Mr. Norfolk and asked him why is Mr. McCulley doing this? Where does he get his money from? Because that's their thing. They'll bankrupt you.

Mr. Norfolk: They did that in the Douglass case, too. They asked me there, too.

Mr. McCulley: That's the whole deal, right? That's the way they take care of the little people. They squash you like a bug.

Mr. Norfolk: Thank you.

 

Notes:

(1) Excerpt of 2009 DEC Ruling

The road is within the forest preserve.
As a preliminary matter, Mr. McCulley contends that State forest preserve land does not include any town roads that run through it. In essence, he is arguing that while the State may own land around roads within the forest preserve, the State does not own the roads themselves, including the roadbed underlying the roads. This position is not correct. The record demonstrates that the State acquired title in fee simple to the lands of the forest preserve through which Old Mountain Road traverses. That forest preserve land is subject to the use of town roads, or the right-of-way created by town roads, does not mean that the State does not acquire the land underlying the roadbed. Thus the threshold jurisdictional question in section 196.1(a) of whether the forest preserve was even implicated here has been satisfied.

Moving beyond the forest preserve issue, the question next presented is whether Department staff demonstrated that Mr. McCulley's operation of a motor vehicle did not fall within one of the two relevant exceptions in section 196.1(b). That is, Department staff had the burden of proving that Old Mountain Road is not under the jurisdiction of a town highway department or that a legal right-of-way does not exist on Old Mountain Road for public or private use. Here, Department staff did not meet its burden on either issue.

Old Mountain Road is a town road that has not been abandoned, and is accordingly under the jurisdiction of a town highway department.

(2) Complete excerpt.

"As previously stated, this decision and ruling does not, in any way, affect the dismissal of the enforcement action against James W. McCulley. However, it was a critical omission for the Master Plan not to be proffered on the issue of the status of Old Mountain Road for the Commissioner's consideration. The Master Plan and the related legal arguments in the submitted papers, as well as the record below, make it clear that Old Mountain Road had been closed and abandoned and that no legal right-of-way for public use existed."

"Accordingly, other than the dismissal of the charges against respondent James W. McCulley, I am hereby vacating those portions of the 2009 Order that (a) concluded that Old Mountain Road was a town road that had not been abandoned; (b) concluded that Old Mountain Road is a legal right-of-way for public use pursuant to 6 NYCRR §196.1(b)(5); and (c) discussed and set forth obligations and responsibilities of the Towns Keene and North Elba over Old Mountain Road."

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