COMMENTARY: Adirondack Park Agency’s “ADA Explainer” Fails to Fully Explain

COMMENTARY: Adirondack Park Agency’s “ADA Explainer” Fails to Fully Explain

By Dave Gibson

During the June APA meeting, Adirondack Explorer covered the State Land Master Plan discussion, noting that “the leaders of environmental groups, who had raised concerns about the earlier accessibility language, thanked agency officials for removing the proposed changes and called for continued resistance to allowing any motorized access.”

Further, the Explorer article stated that “APA staff did retain language updates that would require consideration of accessibility in the development of unit management plans and the proposal of actions to improve access to state land for people with disabilities.”

Adirondack Wild is among those who were grateful that the particularly troubling (for the entire Forest Preserve) amendments were removed while retaining actions to improve access for persons with disabilities. However, several other important aspects of the Accessibility amendments are:

1. the APA’s Response to Public Comments, and
2. the matter of non-motorized accessibility for persons with disabilities

Over 1,200 comments about the Master Plan amendments were received by APA since the October 2024 comment period. Many of them focused on how and why the exclusion of all “other power-driven mobility devices” or OPDMD from the Master Plan’s Motor Vehicle definition (many OPDMD are, in fact, motor vehicles) would erode Wilderness protection.

While the APA has, for now, removed the OPDMD exclusion, in its Response to Public Comments the Agency failed to explain why it did so. To all public comments, APA’s consistent refrain was: “See the ADA Explainer for more information.” That rote response fails to answer this question: what would be the actual and potential environmental impacts caused by the exclusion of OPDMD from the Motor Vehicle definition, and by future DEC authorization of OPDMD motorized uses in Wilderness?

In its Response to Comment, APA has a duty to address this question and describe these impacts because the Agency is responsible for overseeing the Master Plan. The APA’s adopted Final Programmatic Environmental Impact Statement for Guidelines to Amend the Master Plan states on page 30 that “guidelines should be designed to protect the character of Wilderness, Primitive, Canoe and Wild Forest areas. The very foundation of Wilderness is the guideline which prohibits motorized access by the public and severely restricts such access by the Department of Environmental Conservation. Alteration of this guideline to permit generalized use of motor vehicles or aircraft would destroy the character of Wilderness, a cornerstone of the Master Plan.”

If a legal cornerstone of the Master Plan is to not destroy the character of Wilderness and if by introducing possible use of OPDMD, including ATVs, into Wilderness areas that cornerstone could be undermined, we think APA has a responsibility to explain.

Yet, in its Response to Comments, APA is silent about its responsibility for Wilderness resource protection and the impacts on Wilderness from use of motor vehicles. Instead the APA responds to the public’s concern about Wilderness protection with answers like this: “all classes of OPDMD shall be permitted unless it can be shown that a class of device cannot be safely used.”

Public safety involving use of OPDMD, while very important to the drafting of OPDMD statewide policy, is not core to the APSLMP Wilderness program and the impacts from use of motor vehicles including OPDMD on Wilderness resources. Instead, the Wilderness program and primary guideline is, to quote the APSLMP, “to achieve and perpetuate a natural plant and animal community where man’s influence is not apparent.”

Because prohibiting motor vehicles in Wilderness is a “cornerstone of the Master Plan” and central to preserving and perpetuating a natural community where human influence is not apparent, APA should explain impacts to Wilderness which could result from OPDMD use in Wilderness.

Actual Comment:

“Commenter expressed OPDMD use in Wilderness and other sensitive land classes would fundamentally destroy the pristine nature of these places and the purpose for their classification. Commenter believes this meets the ADA definition of ‘fundamental alteration’ and that OPDMDs should be excluded from land classifications of the Forest Preserve that currently do not permit motorized use.”

Actual APA Response:

“The ADA does not define “fundamental alteration.” For additional information regarding the process DEC is required to follow when determining if the use of an OPDMD is a reasonable accommodation, please see the ADA Explainer at the beginning of this section.”

Another typical APA Response to a similar comment went like this: “Pursuant to ADA regulations, state agencies shall permit the use of an OPDMD unless it can be shown that a class of device cannot be safely used. In addition, ADA regulations list assessment factors to determine whether a particular OPDMD can be allowed, including whether the use of an OPDMD …Please see the ADA Explainer at the beginning of this section for additional information about how federal law requires state entities to accommodate public use of mobility devices.”

Here is how we hope APA would respond to numerous public concerns about Wilderness resources: “APA appreciates the comment. Many comments focused on the APSLMP prohibition of public motorized use in Wilderness areas and concerns that this could be compromised. These concerns are valid. By excluding OPDMD from the Motor Vehicle definition, fundamental Wilderness guidelines of management and use including prohibition of public use of motor vehicles in Wilderness, Primitive, and Canoe areas could be altered in ways that would weaken a cornerstone of the Master Plan. The Americans with Disabilities Act, or ADA requires that each service, program and activity offered by state agencies be made accessible to and usable by persons with disabilities, unless doing so would result in a fundamental alteration of the nature of the service, program or activity or an undue financial and administrative burden. APA affirms that exclusion of OPDMD from the APSLMP motor vehicle definition could fundamentally alter the nature of the Forest Preserve and therefore we removed the OPDMD exclusion.”

Non-motorized Alternatives: In Unit Management Plan development, APA’s amendment now requires that DEC identify “management actions to improve access to and enjoyment of the unit’s lands and waters by persons with disabilities.” That is highly appropriate.

One of the management actions to improve access and enjoyment of the Forest Preserve is a range of non-motorized ways of gaining access to all Forest Preserve, including Wilderness. In its APSLMP amendments, APA should be giving that alternative equal emphasis.

One Public Comment summarized this alternative opportunity very well in writing to APA that “many ADA advocacy groups are developing access opportunities in Wilderness that are equivalent in experience and challenge to those of the general public. The experience of quiet, solitude and the sense of remoteness can be the same for everyone. To achieve this, organizations such as Wilderness Inquiry have been providing guided group trips into wilderness areas, starting with canoe trips in the mid-1970s, and expanding to provide similar group trips on land across the country and abroad. This approach could provide a meaningful alternative to the reliance on motor vehicle use in wilderness and provide true wilderness travel experiences. It would be helpful for the (APA) State Land Committee to explore the potential of this approach by bringing, in-person or via video conference, members of Wilderness Inquiry or a similar group to discuss their programs.”

In our letter to the Agency this month, we added “the Agency’s September 2024 draft amendments seemed to pit interests (accessibility and wilderness) against each other. That continues to be wrong since those interests are not inherently antagonistic. Public land accessibility managers have often testified that many people who have disabilities are not seeking to expand motorized use to make access to Wilderness areas easier. Wilderness is not about what is easy. Wilderness is about preserving, enhancing, and restoring natural conditions and solitude or a primitive and unconfined type of recreation, as defined in the Master Plan. Preserving the challenge and opportunity for people of all abilities to experience those Wilderness outcomes is one of APA’s important planning responsibilities.”

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Photo at top provided by the author.