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Land win in NY State

Art Triggs

NAXJA Forum User
Location
Dutchess Co.,NY
While not referring directly to ohv use, this could help us all eventually

http://www.pressrepublican.com/Archive/2005/03_2005/033020052.htm



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News

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3/30/05

Road win at home
Road not abandoned, reverts to public use
By NED P. RAUCH, Staff Writer
LAKE PLACID — What started as a $50 ticket for illegal snowmobiling on the Forest Preserve has led to a direct challenge of state conservation tactics.

Late last week, Essex County Judge Andrew Halloran tossed out the ticket and ruled a centuries-old road had never been officially abandoned and conveyed to the Forest Preserve.

QUESTION OF ABANDONMENT
Two years ago, Jim McCulley was ticketed for riding his snowmobile on Old Mountain Road, which cuts through the woods to link the towns of North Elba and Keene.

According to the Department of Environmental Conservation, the road had been abandoned and was made part the Sentinel Range Wild Forest Area and off limits to motorized use.

McCulley thought differently. Refusing to pay the ticket, he argued that the state never had the right to condemn and acquire the town-owned road, a position he argued first in Town Court and then, on appeal, in Essex County Court before Halloran.

On March 23, Halloran issued a 27-page ruling siding with McCulley.

Citing legislation from the early 1800s, Halloran wrote:

"The prosecution’s argument that the road was a highway by use which has been abandoned is rejected. The evidence is clear that it is a highway created by law, i.e., by the New York State Legislatures, and that the public continues to use it extensively for hiking and cross-country skiing, and less extensively for snowmobile riding, ATV riding and rock climbing. ...

"The state had the burden at the trial of proving abandonment by non-use by the public for six years. It failed to meet that burden."

That means the use of that road, which has long been known to cross-country skiers as a leg of the Jack Rabbit Trail, is to be determined by the towns, not the state, opening the possibility for the return of motorized use.

DEC APPEAL URGED
It’s an attractive route to Lake Placid snowmobilers because it connects Lake Placid to Keene and, from there, to the Champlain Valley.

DEC declined to comment on the ruling Tuesday, saying the department had not yet fully reviewed the decision and considered its options.

Tony Goodwin of the Adirondack Ski Touring Council, and others, urged DEC to appeal the decision, adding that it would be hard for snowmobilers and skiers to share the road, which is at times very narrow.

McCulley, meanwhile, considered the ruling a clear victory.

"There’s a principle here," he said. "This is a road open to the public, and the state does not have the right to take it away. This was done more over principle than snowmobiling."

McCulley is president of the Lake Placid Snowmobile Club. While he looks forward to the increase in snowmobiling opportunities the ruling may allow, he said, the significance of Halloran’s decision is that it shows "the state won’t follow its own laws."

"The bottom line is they were not following the Constitution," he said.

CITED 1885 LAW
Halloran’s ruling referred to the 1885 legislation that established the Forest Preserve and cited a clause aimed specifically at protecting the free use of roads in the Forest Preserve.

The judge briefly touched on the constitutionality of the issue. But, after referring to a state law that gives the commissioners of DEC and the Department of Transportation authority to abandon a highway that passes through state land, Halloran wrote, "No evidence was presented at the trial that the commissioners of either the DEC or the DOT issued an order abandoning or discontinuing the road."

IMPACT UNCERTAIN
What impact, if any, the ruling will have on the rest of the region is unknown.

Peter Bauer, executive director of the Residents’ Committee to Protect the Adirondacks, said that, because every closed road in the park has its own specific history, Halloran’s decision won’t likely be sweeping in its effect.

Nor, Bauer hopes, will it stand for long.

"I certainly hope the DEC will challenge Mr. Halloran’s decision," he said.

Meantime, McCulley said he’ll advise other Adirondack towns with Forest Preserve land within their borders to re-examine the status of roads thought to be abandoned.

"There is no way the state has the right to take away the free use of our roads."

E-mail Ned P. Rauch at: [email protected]
 
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