Property Rights Foundation of America®

Speech from the Ninth Annual National Conference
on Private Property Rights
(2005)

Court Battle to Protect Old Mountain Road from State Wilderness

Jim McCulley

After those early speakers I'm not sure you will really want to hear from me! I am President of the Lake Placid Snowmobile Club. When I heard that Governor George Pataki was coming out with a snowmobile plan for the Adirondacks (1), I thought it might be a good idea to have another snowmobile trail that led out of Lake Placid towards the Keene-Wilmington area. Basically all I wanted was a snowmobile trail, to be honest with you. Somehow I ended up here!

So our club went to the state snowmobile association and requested the use of the Old Mountain Road which ran between the Town of Keene and Lake Placid, which is in the Town of North Elba (2). The road was put in by acts of the New York State Legislature of 1808, 1810, 1812, and 1824. Before the Adirondack Park Agency (APA) law passed in the early 1970's, this road was a snowmobile trail. I had driven it with a car, well, a monster truck probably, when I was a teenager. We considered it part of the North Elba trails or road systems, just because we knew it was an old town road.

Upon requesting through the New York State Department of Environmental Conservation's (DEC) regional forester, Mr. Tom Martin, that we could use this road for snowmobiling, he informed us that, yes, we could use the road, but we couldn't put it on a map or maintain it because there was some discrepancy on who owns it. Now, this road goes through what the State has created as the Sentinel Range Wilderness area. I don't know if everybody knows about the Wilderness designations here in the Adirondack Park, but one of their favorite systems of taking our rights away is to create a Wilderness area, and according to their criteria it says that you can't have any roads in a Wilderness area. So what they do is they create a Wilderness area and then they say, well, we have to shut down the roads because it is a Wilderness area. I mean, it's State logic!

What they told us was unacceptable to me. If we are going to have a snowmobile trail system, we are going to have a trail system that we maintain and that we can put on a map. It seemed a little silly to me.

So I tried to negotiate with them for a trail in the other direction, north through the Town of Wilmington. When I spoke once again to Mr. Martin, he informed me that it would be no problem, that there's an old road that goes through there. He said they don't have a problem with that, and the Governor is going to send us all this money to do these trails.

So I went out with the person doing the Unit Management Planning process (3), and we walked where the trail would be. Several weeks later I called Tom Martin and told him I had walked the trail with the DEC official in charge, and he goes, well, you can't have that. He said there is no way we are going to give you that trail to Wilmington. I responded then that I am going to have to go after the Old Mountain Road. He informed me that I should just take them to court. So I did. And here is that journey.

I started by riding my snowmobile down the Old Mountain Road into the Town of Keene, and since there was no one there to arrest me, I called the local Forest Ranger and asked him if he would come out and ticket me. So he comes out and tickets me, and the whole problem is that he came back the next day and took my ticket away. What are you going to do? You're working hard here, and they aren't working with you! They then brought me, I forget exactly what it was called, but a civil statement, and they basically are now bringing me to court in Keene to try me for driving my snowmobile on Forest Preserve land. One of the keys here is that the entire time they are calling this Forest Preserve land (4).

First off, they send me a plea bargain agreement. If I pay them $100, then they will drop the case against me, which, of course, being naïve, I said, "Oh no, I'm ready to go to trial." So we scheduled a date for trial in the Town of Keene court. I spent an hour that afternoon figuring out what my defense was going to be.

I had filed a Freedom of Information Act request from DEC, for information on the road. When I got that information, I found that the DEC had requested the Towns of Keene and North Elba to abandon the road, I'm going to say they requested it a minimum of five times. Each time the Town of Keene and the Town of North Elba informed the State that they were not going to abandon that road. They considered that road a part of their heritage and a part of their history (5), and they would not give up their legal right-of-way to the road.

So we go to trial. I had never been to trial in my life. Had no idea what I was doing. It was a four-hour trial, which was the longest trial in Keene history! There are just some amazing points that happened here. At one point the State brings up their lands guru, and they bring out their deeds to the land, and they say, you know, is this your land. Is this the People of the State of New York's land? And the lands guru goes through each deed and says, yes, yes, he agrees with all that.

When the State's attorney was done questioning him, I took out the survey maps. Now, I didn't realize this, but a survey map is actually more important than a deed in a lot of ways because it tells you what is on the land. So I take out the survey maps and I give them to their lands guru. It shows a road going right through the so-called Wilderness area, and it says "center line of road is as laid out by Nathan Ward, 1825." Pretty obvious there is probably a road there. So I give them to the lands guru, and I say, "Is this the same land you were speaking of in the deeds?" He says yes. I said, "Well, is there a road that goes through there?" Oh, yes, he says. Huh? I was a bit confused at that point, but I went on to say, "Now, if this is a road, would it still be open?" The lands guru says yes. Okay, I figure I am making points here!

That's when the State's attorney jumps up and says, "I just want it noted that those survey maps are from 1924, 1936, and 1932." So I turned to the lands guru and asked, "Do you have any newer ones?" He said that they did not have any newer survey maps. I knew they didn't. So I said, "So if you were going to survey this property, what would you use?" He said that they would use those maps. I said, "Would you say there is a road there?" Yes. Okay. Boy, I am doing well here!

So at that point, I break out a copy of the statute, titled "an act to establish the forest preserve," which says, "The forest commission may from time to time alter or amend the same affecting the whole or any part of the forest preserve for its use, care, and administration, but neither such rules or regulations nor anything herein contained shall prevent or operate to prevent the free use of any road, stream, or waterway as the same may have been heretofore used or as may be reasonably required in the prosecution of any lawful business." I want to put this into the court record. This was evidence to me. By the way, this is as fixed by law in the New York State Constitution.

At this point the same State's attorney that was looking up the age of the survey maps goes, well, I don't mind that going into the court records as evidence, but I just want it noted that it is from 1885. At that point I said, "I just want it noted it is from the State Constitution." So I get this in.

I also have an "operation of motor vehicles in the forest preserve" commentary by Thomas D. Shearer (6). He may even be in the room. I don't know. But at any rate I want to put this in, and the State's attorney, being a lawyer, says that Mr. Shearer was not present and that DEC could not prove that this was actually his work, and that they didn't know that he is an expert. So I can't put it in.

But that is just a story to lead you to the closing arguments, which I had no idea what I was going to do. Everything I had written down at one o'clock that afternoon I threw out in the first five minutes. But the State's attorney stands up for closing arguments, and the first thing out of his mouth is, we didn't abandon that road, but we don't have to. I nearly fell over. I was just absolutely stunned. I wanted to stand up and say, "Who the hell are you?" I'm sorry, but the State saying, "We don't have to," and that is their arrogant attitude about everything. At any rate, for my closing arguments I read Mr. Shearer's commentary because I had nothing else prepared for myself.

What it says is quite interesting: "The significance of Section 7, 8, and 9 of Chapter 283 is apparent when analyzing the context of Article 14, Section 1 of the Constitution. Initially adopted as Article 7, Section 7, 1895, Section 1 reads: "The lands of the state now ownedor hereafter acquired constituting the forest preserve as now fixed by law. The phrase, as now fixed by law," conspicuously proclaims that the fundamental basis of Chapter 283 was in 1895 valid, authentic, and enforceable; therefore, Section 9 of Chapter 283 pertaining to the government limitation of regulated forest preserve roads and waterways remains valid today as it was in 1895."

I don't want to say this in a disparaging way, but the judge in the Town of Keene court is just a regular Justice of the Peace. This poor gentleman was way over his head. I was way over my head, but at any rate, he found me guilty and gave me a $50 fine. Which after the State had offered me a $100 plea bargain, I figured I made $12.50 an hour because it was a four-hour trial! Of course, I forgot my friend Jason was with me, and I had to split it with him so that's $6.25 an hour apiece. So I am found guilty.

Next step was we appealed to Judge Andrew Halloran of the Essex County Criminal Court. It seemed like an eternity waiting for the decision, but Judge Halloran decides in a 27-page document that not only am I correct on the constitutional issue, but the State had no right to take that road. The State had no legal bearing on that road, and, as a matter of fact, I think he even decided that if the Towns abandoned it, the State would only receive a reversionary right to the road because it is a public right-of-way.

When the judge made this decision, holy Hades broke loose! The environmentalists went bonkers. I mean bonkers! Mr. Peter Bauer of the Residents Committee to Protect the Adirondacks said that Judge Halloran was one of the founding members of the Lake Placid Snowmobile Club. I don't even know the judge, I wouldn't know the guy if I fell over him. But this is how crazy it got.

The more interesting thing here is that the DEC decided that the Halloran decision only affected that one ticket. He spent the time to write 27 pages for one ticket? I doubt it!

A friend of mine has a power line going up the Old Mountain Road where it passes through his private land before you get to the State land, and the State wants him to remove that out of the State's right-of-way. We are saying that since the road was laid out in 1808 under the legislative laws, it is a four-rod wide road. This friend is telling this to DEC Region 5 Director, Stuart Buchanan, and he quoted from the Halloran decision. Stu Buchanan says to him, we don't agree with the Halloran decision, so we are not going to follow it.

So here we go again. This time I drive my pickup truck out on the Old Mountain Road. The same Forest Ranger comes out, tickets me. So obviously I figure I am going to come in and show the judge the Halloran decision and then show them my butt walking out the door.

They had a little surprise for me. The DEC, instead of taking me to court where they lost in the judicial system, decided that they were going to take me to an administrative hearing. Now if anybody knows what those are, and it sounds like everybody does, it means that they are going to be the judge and the prosecutor. It is going to be tough for me to win there.

So at that point I filed a federal civil rights lawsuit against them, which we are now dealing with in court, asserting 11 different causes of action. I tend to be a little volatile at these DEC hearings, and we were contending that one of the reasons they are going after me like this is they don't like the way that I speak to them. But the 11 different causes of action, what most people have to understand is that this same Old Mountain Road was being maintained by a cross country ski group without any permitting from the DEC (the "Jackrabbit Trail"). They use a bulldozer on the road, and when the DEC was questioned about that, DEC wrote letters to whoever questioned them and said, hey, it is a town road. We have no jurisdiction over it.

The same State's attorney who is prosecuting me, wrote a letter in 2004 that said the Old Mountain Road is a Town of North Elba road open to motor vehicle traffic and gives all the lot numbers that it goes through, which is exactly where we were and is exactly what we have been saying for years. Their problem is they keep putting the facts in their paperwork!

On October 6th we went to federal court. Basically New York State is attempting to take me out of federal court and put me back in the State court. They showed up last Friday with eight lawyers. Fortunately I had a lawyer who is so young that he doesn't know he can't do this yet, but in one of their 42-page briefs the State spent 37 pages saying how the Halloran decision was wrong. About half way through their fifteen minutes of fame, the federal court judge finally said that he had read the Halloran decision and thought it was a very good decision based on law, based on history, and, in fact, was an excellent decision. The State's attorney says, well, we disagree with that, your honor, but we couldn't appeal it.

So my lawyer stood up for his fifteen minutes, and my $1,000, and says, your honor, I researched this and this is how they could have appealed it. He read down through the law how they could have appealed it. The federal judge turns to the State and says, I don't want to hear that argument again. You could have appealed this.

At that point the judge says to the State, tell me something. If this road were not abandoned, is it open for motor vehicle use? The State Attorney General's lawyer, who is actually running the case, turns to the DEC's head attorney Mr. Hamm, and he gives him a shake of his head, yes. He has to turn back to the federal judge and tell him that yes, your honor, it would still be open for motor vehicle use.

That is pretty much the crux of my case. I think they should have just found for me and it would have been over. But that is where we are today. So thank you.

Editor's Notes:
(1) The Adirondack Park is a section of northern New York State encompassing six million acres of intermingled public and private land in all or parts of twelve counties. When the Adirondack Park Agency (APA) law was passed in the early 1970's, it gave sole authority to the APA to not only regulate the private land, but to also classify the State land into various categories. The two main classifications are "Wilderness," where no motorized access is allowed, and "Wild Forest" where motor vehicles such as snowmobiles could be allowed where the State deems it suitable.
(2) This road bisects the Sentinel Range Wilderness, made up of various tracts of private land acquired by the State over the years. Many such acquisitions throughout the Adirondacks contained roads — not just farm roads or roads that had been used for bringing timber or mineral products out of the forests, but public highways such as this one, which were never abandoned by the respective Towns.
(3) Each individual Wilderness and Wild Forest area "unit" is to have its own "Unit Management Plan" (UMP) developed by the DEC in consultation with the APA. Each UMP in turn has to conform to the State Land Master Plan (SLMP), which was authored by the APA as the blueprint for management of the different classifications of land. The APA has the final say over whether each UMP conforms to the SLMP. The SLMP itself was to be comprehensively reviewed every five years, and revised as needs changed; however the last revision took place nearly twenty years ago.
(4) In 1885, the legislature enacted the law providing that any land in the Adirondacks thereafter acquired by New York State is to be designated "Forest Preserve," on which nearly all development is prohibited. A further amendment in 1894 provided that the Forest Preserve "be forever kept as wild forest lands," and that the timber on the land was never to be cut or removed, known as the "Forever Wild" clause, Article 14 of the Constitution.
(5) The 1859 funeral procession carrying abolitionist John Brown's body had traveled the Old Mountain Road to reach his final resting place in North Elba.
(6) Shearer is a retired DEC official.

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