COMMENTARY: APA Proposes to Weaken Wilderness Protection
On behalf of the Association for the Protection of the Adirondacks, I was one of the intervenors to sign the 2001 Galusha v. NYS Department of Environmental Conservation (DEC) and Adirondack Park Agency (APA) consent order before U.S. Federal Judge Kahn in Albany. Following the lawsuit in federal court by plaintiffs claiming violation of the Americans with Disabilities Act (ADA), that consent decree committed New York to expand access to the Adirondack Forest Preserve and Adirondack (and other) public facilities for persons with disabilities in compliance with the ADA.
The organization for which I worked committed not to oppose improved and expanded access as proposed in unit management plans because our mission to defend and protect Adirondack wilderness values inherent in the Forest Preserve, and protected by our state constitution, were not placed at risk.
Why was the Galusha case brought in the first place ? During the 1990s, DEC had gotten into a habit of issuing permits for public use of motor vehicles to enter the Forest Preserve, even in Wilderness areas, during big game hunting season – and even for able-bodied individuals in violation of the Master Plan. DEC personnel were also administratively motoring themselves into Forest Preserve on a quite routine basis in violation of the Master Plan. Groups like mine joined together to sue DEC for issuing these permits on grounds that such actions violated Article XIV of the State Constitution, “forever wild.” Meanwhile, Mr. Galusha and allies sued DEC in federal court on the basis that DEC was issuing motorized access permits not available to persons with disabilities in violation of the Americans with Disabilities Act (ADA). In the summer of 1998, the Galusha case quickly gained traction with Federal Judge Kahn.
Consent Order: After three years of intense negotiation, in 2001 the Galusha case was settled in federal court through a signed consent decree. NYS APA and DEC committed to expand access to the Adirondacks for persons of diverse abilities without watering down legal protection of Forest Preserve resources afforded by the Master Plan and backed by Article XIV of the State Constitution. The APA made such a strong case for New York’s unique legal and constitutional history that federal agencies supported the Galusha consent decree. The APA’s case, agreed to by the plaintiffs, DEC, State Attorney General, and intervenors provided the assurances I needed to sign the agreement on behalf of the Association for the Protection of the Adirondacks.
As a result of “Galusha,” NYS DEC undertook a great many specific accessibility projects throughout the Adirondacks to comply with the ADA, expanded that work well beyond what was required by the consent decree, and continues that important work today.
As a result of Galusha, my eyes were opened and sensitized. It became clear to me the NYS could address past failures and achieve much better access to Adirondack facilities for people of all abilities while being consistent with the management guidelines of the Adirondack Park State Land Master Plan, which has the force of law.
As a result of Galusha, unit management plans have been approved, more than 20 miles of roads in Wild Forest have been opened for motor vehicles exclusively for persons with disabilities, many trails, day use areas, and campsites have been made ADA accessible, as have many state buildings – with still plenty of progress to be made. All this and more have been accomplished while maintaining restrictions on public use of motor vehicles in Wilderness.
Weakening the Master Plan: Twenty-three years after signing Galusha, the Adirondack Park Agency is proposing to dismantle its framework and, for the first time in 52 years, significantly weaken the State Land Master Plan by amendment.
For vague reasons of accessibility, APA is now proposing to amend the Master Plan’s Motor Vehicle definition to exclude devices known as other power-driven mobility devices powered by batteries, fuel, or other engines. These excluded devices include a wide array of motorized conveyances including modified ATVs and golf carts.
Under the proposed change, use of these so-called OPDMDs would be deemed “conforming” in any land use classification, including Wilderness. Under the proposal, NYS DEC would have the exclusive right to determine where OPDMDs may drive by permit, including on Wilderness and Wild Forest trails.
If the Galusha settlement of 2001 had contained this proposed cancellation of both Wilderness principles and legal guidelines, I could not have signed it.
The SLMP’s prohibition on the use of motor vehicles in Wilderness and in areas of the Park managed as wilderness (Primitive and Canoe areas) is at the heart of the master plan’s law and spirit, and the APA’s paramount responsibilities. For Wilderness to be kept wild, it’s fundamental that public use of motor vehicles, aircraft, and motorized equipment not be present.
For the first time APA is proposing to allow DEC the discretion to authorize use of this class of motor vehicles known as OPDMD on trails for no apparent legal reason. APA justifies the amendment by stating (in its slide presentation during the public hearings) that the existing Master Plan “pigeonholes accessible opportunities into certain land classifications, and therefore is not reflective of the spirit of the ADA.”
Really ? The Master Plan’s entire purpose is to protect and preserve the natural resources of our State Lands. Someone’s opinion at the Agency that it is “not reflective of the spirit of the ADA” is just that, an expression of opinion, not a legal basis for amending the Master Plan.
The heart of the Master Plan lies in its prohibition or constraint of motorized access to the Forest Preserve, backed by DEC regulation and by Art. XIV of the State Constitution – reaffirmed by our Court of Appeals. The Master Plan is built upon the spirit and legal foundation of Forest Preserve protection and stewardship dating to 1885.
For 23 years, neither the letter nor the spirit of the ADA have conflicted with the State Land Master Plan, evidenced by carrying out of the Galusha consent decree. Continued use of CP-3 policy to permit motorized access to selected Wild Forest roads that are not damaging natural resources is a productive way forward that requires no amendment of the SLMP.
ADA Rules: Neither APA nor DEC have given the public evidence that U.S. Justice Dept. is forcing the APA to amend the State Land Master Plan to comply with federal ADA rules. The ADA rules require that each service, program, and activity offered by state agencies be made accessible to and usable by people with disabilities, unless doing so would result in a fundamental alteration of the nature of the service, program, or activity. U.S. Justice ADA rules provide five assessment factors which enable DEC to condition or restrict OPDMD from Wilderness and Wild Forest trails, and thus abide by current APSLMP definitions and guidelines, and DEC regulation.
These federal assessment factors include:
type, size, weight, dimensions, and speed of the device;
safe operation of the OPDMD and safety requirements; and
a substantial risk of serious harm to the environment or natural or cultural resources caused by use of OPDMD.
The nature of the OPDMD device, their safe operation on Forest Preserve, and serious harm to wilderness resources and conditions would all qualify as factors to continue in place restrictions on OPDMD in Wilderness, Primitive, Canoe and on Wild Forest trails. It remains only for DEC to apply these factors through the existing DEC CP-3 program and through written DEC Policy on use of OPDMD – not through weakening APSLMP amendments.
What’s At Stake: By modifying the definition of a motor vehicle to exclude all manner of motorized devices in the name of access, and by giving DEC the choice to allow such motorized devices in Wilderness, the APA is altering the nature of our Forest Preserve, injecting massive public confusion among the public and DEC Forest Rangers, and making fair enforcement of DEC regulations (Part 196 pertaining to public use of motor vehicles in the Forest Preserve) difficult, if not impossible.
The governor must sign-off on all Master Plan amendments. Does Governor Hochul wish to be the first governor in 52 years to weaken Adirondack wilderness protection in the name of mechanized access? To make modified ATVs and golf carts conforming with Wilderness, Primitive and Canoe area Master Plan guidelines? We don’t think she wants serious erosion of wilderness protection to be part of her legacy – when no federal rules require it.
Regardless of our physical abilities, I don’t think most people want to compromise on wilderness protection so that engines can be seen and heard miles down a trail – in the name of better access. It’s a funny thing about wilderness. The more you relax restrictions on motors and mechanized convenience, the less wilderness you make accessible because the very wilderness character and conditions which you seek no longer exist.
I suspect that people of all abilities want to experience wilderness – on its own terms. There are many services that enable people of all abilities to access wilderness trails and ponds without use of motorized conveyances. One longstanding example is the work of Wilderness Inquiry (www.wildernessinquiry.org).
DEC and APA should be encouraging, supporting, and assisting those private organizational services to help make wilderness accessible for people of all abilities without use of motor vehicles, while also maintaining the CP-3 policy, the Galusha consent decree, and fashioning state policy on use of OPDMDs with public input.
What NYS, APA, and DEC should not be doing is weakening the Adirondack Park State Land Master Plan by making power-driven mobility devices as large as ATVs and golf carts conforming uses in Wilderness.
Public comments to the APA about the APSLMP amendments are due by Dec. 2. Address all written comment on this matter to:
Megan Phillips, Deputy Director, Planning
Adirondack Park Agency
PO Box 99
1133 State Route 86
Ray Brook, NY 12977
Or by email to SLMP_UMP_Comments@apa.ny.gov
Adirondack Wild’s comment letter can be read at this link.
Photo at top: Cover of the Aug. 2019 State of New York Adirondack Park State Land Master Plan. Photo courtesy of the APA, provided by the author.