April 7, 2023
Megan Phillips, Deputy Director for Planning
NYS Adirondack Park Agency
Box 99
Ray Brook, NY 12977

Re. APSLMP Wild Forest Guideline 4, No Material Increase, Alternative #4

Dear Ms. Phillips,

Adirondack Wild and other members of the public have again been invited to comment about yet one more Agency interpretation of its Wild Forest Guideline No. 4, which establishes that public motorized use in Wild Forest shall not be encouraged, and that there shall not be a material increase in the mileage of roads and snowmobile trails open to public motorized use than existed at the time of the Adirondack Park State Land Master Plan’s (APSLMP) adoption in 1972.  

APA’s latest interpretation: It states that: “the current estimated non-CP-3 mileage of roads in lands classified as Wild Forest, 206.6 miles, does not constitute a material increase in road mileage since 1972, nor would increases of mileage up to and including the 1972 estimated mileage of 211.6.”

In offering this, the Agency persists in the faulty assumption that roads open under DEC Commissioners Policy 3, or CP-3, exclusively for permittees, are not roads, as defined, and should not be roads counted towards materiality.  The APA must lack confidence in its assumption because the Agency keeps asking the public a question that its own records demonstrate has already been answered:  “Does CP-3 mileage meet the definition of a road in the SLMP and therefore require inclusion in the total Wild Forest road mileage calculation?” APA should not expect the public to have to answer a question that the Agency has already answered – affirmatively .

Agency Records: Assumptions that CP-3 roads are not roads and should not count towards Master Plan materiality guidelines are unsupported, in fact they are contradicted by the Agency’s own records. Unfortunately, after all these months Agency members today still seem unaware of these prior records and decisions.  APA members are not being given background information necessary for informed decision making, such as the agency’s large file of information about its participation in the 1998-2001 “Galusha Case” in federal court in Albany, and what preceded it.  The Galusha case was settled by consent order, signed by APA Chairman Richard Lefebvre, on July 5, 2001. That event was described in the APA’s 2001 Annual Report as follows:

“In July a landmark settlement of the Galusha lawsuit was achieved–with Agency participation–that has cleared the way for implementation of the Americans with Disabilities Act within the Forest Preserve. This positive turn of events in Park history creates significant new opportunities for the disabled while preserving the management of our public land in a manner consistent with the New York State Constitution and the Adirondack Park State Land Master Plan” – emphasis ours, Adirondack Park Agency Annual Report, 2001, page 26.

From this brief APA report, one learns that a. the Agency fully participated in the Galusha settlement; and b. that the settlement and roads opened under CP-3, including the 21.6 miles authorized and opened as well as the routes authorized since 2001, preserved the management of the Forest Preserve consistent with the entire APSLMP, including Wild Forest Guideline 4. In brief, APA’s 2001 report affirms that CP-3 routes were roads considered and counted towards “no material increase.”

My employer at the time was an intervenor-defendant in the Galusha case and I signed the 2001 consent order on behalf of my organization.  My board and I had the confidence to sign expressly because APA staff had convinced all the parties, including federal Judge Kahn, that the APSLMP applied and that the consent order’s roads for CP-3 permittees must be incorporated and considered in the context of APSLMP’s Wild Forest Guideline 4.

Signing of the Consent Order was the culmination of years of  fully vetted Agency staff memoranda concluding that the Master Plan’s guidelines applied to CP-3 roads and permittees.  All APA memos and other materials related to interpretation of Wild Forest Guideline 4 during the years the Galusha case was in court (1998-2001) should be immediately provided to Agency members and to the public. Some of those memoranda were released to us under FOIL; however, others were inappropriately withheld for spurious reasons of confidentiality.

An APA staff memo released to us, dated Dec. 17 1996, stated that Agency staff met with DEC staff on Dec. 5, 1996  “to discuss identifying DEC roads currently opened for public use of motor vehicles and to quantify the approximate miles of roads open in 1972…all part of an effort to develop a comprehensive park wide list of roads legally open to motor vehicles as part of the Department’s new policy allowing people with disabilities to use motor vehicles on state land in the Park.”

The memo infers those roads legally open to motor vehicles on Wild Forest included and incorporated the policy, which later became CP-3, authorizing persons with disabilities to use motor vehicles. The memo’s clear inference is that CP-3 permittees are considered members of the public and the roads driven by the permittees are counted toward Wild Forest road mileage under the Master Plan.

Galusha Consent Order: With respect to the Galusha settlement itself, signed by the Agency, it is clear that the expansion of routes open for CP-3 permittees were agreed by the parties to be consistent with the Master Plan, in that “DEC will propose, and DEC and APA will support through the UMP amendment process, motor vehicle access for persons with disabilities holding permits under Policy CP-3, subject to closure for seasonal conditions in the discretion of DEC as land manager for the Forest Preserve, including reasonable closure for environmental and/or public safety reasons…” (Galusha Consent Order, 2001).

This quote from the settlement is consistent with the discretionary powers of the DEC under the APSLMP, whereby some roads are to be “maintained by the Department of Environmental Conservation or other state agency and open to the public on a discretionary basis” (APSLMP). In short, CP-3 roads are roads as defined under APSLMP.

Some routes originally listed in the 2001 settlement were evaluated and eventually deemed out of APSLMP compliance because their use would harm natural resources and degrade Wild Forest character. Comparable alternative routes deemed APSLMP compliant, inclusive of Wild Forest Guideline 4, were anticipated and found under the Settlement.

Around 2005, DEC and APA staff invited me and other members of the DEC Forest Preserve Advisory Committee to walk some of the Consent Order’s CP-3 roads in the Moose River Plains Wild Forest. I clearly recall discussion about these routes as “roads,” defined by the APSLMP, and about their overall APSLMP compliance, inclusive of Wild Forest Guideline 4.

Today’s Reality: APA’s past records document that CP-3 permittees are members of the public granted exclusive opportunity to ride on roads defined by the APSLMP and opened by DEC on a discretionary basis. The Agency’s complicated matrix and convoluted language about the alternative interpretations seem intended to mask these facts. Road mileage subject to Wild Forest Guideline 4 has reached about 245 miles, inclusive of CP-3 roads, a greater than 15 percent increase since 1972 (206 miles).

Park Context: That increase does not count the thirteen or more miles of the Limekiln-Cedar River Road, once Wild Forest, reclassified to Intensive Use in 2016. Further, to date APA has failed to consider the APSLMP’s requirement that private land opportunities factor into planning, as stated in the Master Plan’s page 3:

“The state has also acquired…a variety of conservation easements and less-than-fee interests in private lands that serve an important public purpose in either providing public access to state lands or in preserving the natural, open space character of the private land burdened by the easement for the benefit of other state lands in the Park. These less-than-fee interests are an important element in the relationship between state and private lands…This master plan…has therefore attempted to take into account…this intermingling of private and public lands within the Park” … “The Act clearly recognizes the unique land ownership pattern within the Adirondack Park…and mandates the Agency to reflect in this master plan the actual and projected uses of private lands within the Park.” 

There was no conservation easement law until 1983. Now, miles of private, former industrial roads as well as trails on conservation easements are open to some form of negotiated public motorized recreation. The latest example is the 16-miles of dirt road newly opened to public motorized uses from May-September through the Kildare Conservation Easement Recreation Area Management Plan.  In fact, DEC’s easement program and its 2006 snowmobile plan were expressly intended to shift motorized access off the Forest Preserve and onto routes on private land.  APA’s interpretation of Wild Forest Guideline 4 must consider and account for this.

Misuse of Visitor Use Management: Some APA members want the staff to use V.U.M. methods to determine on a case by case, UMP by UMP basis whether Wild Forest roads comply with APSLMP guidelines. This would be a serious misapplication of VUM. VUM is a set of tools for establishing and meeting desired resource conditions as a means for estimating the carrying capacity of an area. VUM is not a substitute for the framework of established public land law, policy and regulation. Rather, VUM is meant to augment the established legal and policy framework, in this case surrounding motorized use in Wild Forest already established by the State Constitution, the APSLMP and Part 196 of DEC regulations. APA staff have already presented the Agency with documentation about the serious ecological impacts of road presence and motorized uses. That should inform APA’s resolve to avoid those impacts in Wild Forest by adherence to the APSLMP, DEC regulation, and Article XIV of the State Constitution.

Current Wild Forest road mileage is at least 33.06 miles over 1972 mileage. As APA correctly states, “the overall goal of the APSLMP is to limit motorized road uses in Wild Forest.” That being the case, APA and DEC should embrace, not fear, the opportunity to evaluate natural resource damage from motorized road traffic in parts of Wild Forest throughout the Park, and take steps through the UMP processes to close portions of those roads as a matter of discretionary authority under the APSLMP. That authority is Master Plan Wild Forest Guideline No. 3 under Motor Vehicles and Motorized Equipment: “The Department of Environmental Conservation may restrict, under existing law and pursuant to authority provided in this master plan, the use of motor vehicles, motorized equipment and aircraft by the public or administrative personnel where in its judgment the character of the natural resources in a particular area or other fac­tors make such restrictions desirable.”  

Past Precedent: As APA records show, some twenty years ago DEC made management decisions to close nearly sixty miles of non-CP-3 Wild Forest roads where natural resource damage was taking place because of intensive, illegal ATV and other motorized traffic in wetlands and other locations on the Forest Preserve not designed for it. At the time, APA contributed to these road closure decisions in the Independence River Wild Forest, where more than twenty miles of roads were closed, in the Aldrich Pond Wild Forest, in the Taylor Pond Wild Forest, Wilcox Lake Wild Forest, and in many other locations.

Moving Forward: We have no doubt that there are additional locations today where natural resource damage is taking place  because we have visited several of them. These routes should be evaluated and, potentially, closed as a management decision under the relevant UMP.  As there are over sixteen miles of CP-3 routes approved in UMPs but not yet opened to motorized use, these routes should also be re-evaluated as to whether their future opening, at the discretion of the DEC, would unduly threaten or damage natural resources. Since the APA’s paramount responsibility is the protection of the natural resources of the State Lands, it is incumbent on the Agency to tackle this challenge in a constructive manner with DEC partners through the UMP amendment process.

Thank you for this additional chance to comment, supplementing our comments of June 2022 and March 2023.


David Gibson, Managing Partner
Adirondack Wild: Friends of the Forest Preserve

P.O. Box 9247
Niskayuna, NY 12309

Cc: Barbara Rice, APA
       Chris Cooper, APA
       Agency Members and Designees
       Peter Frank, DEC
       Josh Clague, DEC
       Fiona Watt, DEC
      Ashley Dougherty, Executive Chamber