May 16, 2005
Rob Davies, Director
Division of Lands and Forests
NYS DEC
625 Broadway
Albany, NY 12233
Re. DRAFT ATV POLICY
Dear Rob:
The Association for the Protection of the Adirondacks has heard from many people in the Adirondacks who have been negatively affected by the inappropriate, illegal or unethical use of all terrain vehicles (ATVs) on both public and private lands. While there are many ATV riders who do not break the law or damage natural resources, who operate ATVs for various forestry or agricultural uses and who understand what it takes to build and maintain and ride on appropriate ATV routes, the problems created by those who do break the law or ride unethically across the state are very serious, numerous and growing. Therefore, since 2001 we have strongly encouraged the Department to issue an ATV policy. We appreciate having the opportunity to comment on a draft of such a policy.
Section II, Public Lands: While we appreciate and strongly support the statement that "all terrain vehicle (ATV) riding is not a specific program offered on public lands owned in free and managed by the Department" and the further statement that "the Department does not encourage ATV use on such lands," there is no context provided. Even the Purpose and Background statement on page 10 fails to offer a clear context when it states that the policy has been developed "as a result of the critical need to address the impending impacts of public ATV access on these lands and to respond to issues . . . "
Impending impacts? News articles tell a different story, as does the photographic documentation that the Association and others have provided the DEC of extensive damage to sensitive soils, wetlands and trails throughout the Adirondack Forest Preserve. The impacts this policy should be addressing are actual and real, not impending. The real context is the actual, ongoing, extensive, documented evidence of damage done to the wild forest character of the Forest Preserve, natural resources, wildlands, and trails on public lands, and trespass, property damage and harassment on private lands by the illegal, inappropriate and unethical use of ATVs.
The policy should clearly provide the correct context, that existing state laws, regulations, policies and funds have been unable to keep up with the marketing, sales and illegal, inappropriate and unethical use of ATVs across the state. The policy should clearly state that because of their technology and the way they have been marketed, ATVs reach and impact virtually every natural habitat and every place in the State. It should inform the reader that the policy is intended to strengthen the Department's response to the extensive damage ATV use causes to natural resources on public and private lands, and provide the Department's recommendations for more effective laws, regulations, enforcement, education and funds to prevent further damage. Given that this is a national problem, other states, such as neighboring New Jersey, have described the actual, ongoing severity of the problem and the context for their ATV policies. The DEC should do no less.
Forest Preserve: As a matter of principle, the Association does not support public or administrative motorized access to any part of the NYS Forest Preserve except for sudden, actual and ongoing emergencies and on designated roads opened through the unit management planning process solely for permitted persons with disabilities as per Commissioners Policy (CP-3), conditioned on all the terms of the Galusha settlement including the last-minute "as ordered" stipulations. In all other places, DEC, working in close cooperation with other state and local agencies, should make the removal of ATVs from the Forest Preserve one of its top management, enforcement and educational priorities. If the Department can not begin to stem the tide of ATV damage on the "forever wild" Forest Preserve, it will have little or no success on the other public and private lands included within the scope of this policy. We appreciate the rapid progress made on this front with the closure of 49 Forest Preserve routes to public use of ATVs in DEC Region 6 last year. A commensurate effort is needed in the Catskill Forest Preserve.
We ask that this policy reference and integrate with another motorized access policy of the DEC by restating the Department's policy decision in 2000-2001 to remove from its definition of "administrative use" of motor vehicles the use of ATVs by snowmobile clubs, municipalities and other non-state personnel to maintain snowmobile trails, etc. The Association and the other parties in a counter claim against the State in Galusha v. Cahill, et. al. strongly supported this decision by the DEC to strip non-state personnel from its definition of administrative use of motor vehicles. We believe that the use of ATVs on any trail in the NYS Forest Preserve by any person not employed by the state and by state employees for any reason other than those limited conditions described in the State Land Master Plan (and more clearly delineated in the Commissioners Policy on Motorized Use) is illegal and unconstitutional.
Seasonal Use: This Draft policy authorizes the Department to open a particular road to public ATV access by Temporary Revocable Permit "if it (the road) is needed to access Department programs on a seasonal basis." Since conservation easement lands and Forest Preserve lands intersect in both Adirondack and Catskill Parks, trails on private or municipal lands with an easement that permits ATVs will attract ATV-riding on Forest Preserve roads in order to access such trails. These private lands would constitute "trails and areas that are legally open to the public use of ATVs" and thus satisfy the Vehicle and Traffic Law condition that public highways only be used by ATVs where the purpose is to provide access to adjacent trails and areas legally open to such use. However, an ATV-rider could ride for many miles on a highway or on a Forest Preserve road before reaching the private or municipal trail.
It is imperative that DEC limit the mileage an ATV can travel on Forest Preserve public highways in order to travel between conservation easement or municipal lands that authorize ATV use. DEC seems to acknowledge the problem when it states on page 9 of the Draft ATV policy that "therefore, ATVs cannot be allowed on Forest Preserve except for short distances (our emphasis) on roads open to other motor vehicles where the road provides a connection to a route open to the public on private or other public lands, including easement lands." DEC must identify what is meant by a "short distance." We believe that such a distance should not exceed one mile.
Additional Criteria Needed: In evaluating the suitability of roads on the Forest Preserve for public ATV access, compatibility with the wild forest character of the area in question and the objectives of a given unit management plan should be specifically listed. They are not listed in the current draft.
This draft policy seems to lack several key criteria and points of emphasis. Environmental review, public safety, interference with the use and enjoyment of the state's natural resources, and the safety of state conservation officers are four that come to mind. In New Jersey, for example, their state ATV policy (summarized in a press release from 2002) appears to stress the need for a formal environmental review or assessment by the state prior to opening any route to ATVs. In this DEC draft policy, under the section Natural Resource Protection, the reader is assured that natural resources damage will be avoided but is not informed how the Department will arrive at a conclusion that damage by ATVs may be unsustainable. This policy should make clear how these conclusions reached, whether through the eyes and judgments of a Forest Ranger, ECO, or through a more formal assessment conducted by the teams in various DEC Divisions.
Public safety: This section of the DEC policy, page 3, should reference existing V&T law and required ATV operator safety courses, liability insurance and registration requirements. Safety risks to children are particularly acute from illegal or inappropriate ATV use. This fact should be noted. Many of the roads being considered for ATV routes by DEC, by private landowners or by municipalities are commonly crossed or used by small children from their homes or seasonal camps. Roads proposed to be open to public ATV should not pose an unreasonable hazard to children living in densely settled seasonal camps or homes along the road.
Uniform Language Needed in Every Forest Preserve UMP: Rather than have each UMP author attempt to evaluate the impacts that ATVs have on a given unit's natural resources, wild forest character and so on, DEC should write a generic "impact statement" that applies uniformly across the Adirondack and Catskill Forest Preserve (in State Forests as well) and that is incorporated in every Unit Management Plan. Given the many scientific and field investigations and reports of ATV/ORV impacts in states across the country, including in NYS, it should be possible for such a generic "impact statement" to be substantive and quite rigorous.
Is it a Road? Given that ATVs are legally allowed only on public motor vehicle roads on Forest Preserve Wild Forest, the entire ATV Policy rests on the determination of what constitutes a road on the Forest Preserve. However, as we stated in our April 11, 2005 comments regarding the Draft Forest Preserve Road Policy, that policy lacks a procedure for establishing the status of each "way" through Forest Preserve and steps to formally close or abandon roads so that their legal status are no longer in question. The Adirondack State Land Master Plan is quite specific about what constitutes a road in the Forest Preserve and the Roads Policy fails to rigorously apply that definition that defines roads as "an improved or partially improved way designed for travel by automobiles . . . " This ATV policy depends significantly on a much-improved road policy, yet makes no mention of the existence of such a policy. A revised ATV policy should integrate the two policies.
ATV access for Persons with Disabilities: While we support the Commissioner's Policy 3 (CP-3), under the Galusha settlement, the Association retains its right through the unit management planning process to oppose significant alteration and widening of the roadbed to accommodate CP-3 ATV use in the Moose River Plains and other places as stipulated in the settlement. In addition and wherever possible, we will work closely with the DEC, the plaintiffs and other parties in suggesting better non-motorized access to the Forest Preserve.
Conservation Easement Lands: The draft policy mentions that the right to provide public ATV access will be established pursuant to the terms of each individual conservation easement. This is incomplete. The terms of the easement should explicitly provide not only the right to use ATVs but also the details of such use, including the locations of use, times and conditions of such use. Given the wide-ranging impacts of ATV use it is very important that the public understand by the announced terms of a given easement how, if at all, ATVs will be used on a given property and how such use and conditions of use may effect planning for adjoining public or private lands on a localized and on a broader regional basis. These details also need to be incorporated in a recreational plan for these properties.
Future Legislation: By merely stating that it will implement its ATV policy "consistent with this legislative action," the draft policy misses a big opportunity to influence legislative direction in this area. This passive statement does not constitute the kind of leadership required of the Department to address what is one of the most serious threats to lands and natural resources under its care, custody and control. What does the Department need from additional legislation to more effectively carry out its legally required mission with respect to ATV use and abuse? What additional powers, resources and personnel?
Responsibility: We are pleased with the statement that the Department will "consider the promulgation of appropriate controls, including equipment requirements, to minimize adverse environmental impacts of public ATV use through regulation." However, DEC should explicitly list tire, muffler, pollution-control devices and ancillary equipment carried by ATVs as having potentially significant adverse environmental impacts that may be subject to such regulation.
Education and Enforcement: This draft policy only begins to describe the critical methods and partners required to better educate the public, the judiciary, ATV riders, dealers and manufacturers about ATV impacts, laws and regulations. For instance, the policy should explicitly reference the critical role that local judges play in enforcing against illegal use of ATVs. In 2000-2001, the DEC's own Forest Preserve Advisory Committee recommended annual ATV education and training sessions for local justices and local law enforcement agencies. Have any training sessions taken place? This policy should explicitly recommend them.
This same committee has also asked that DEC Forest Rangers and ECOs produce detailed reports about tickets issued to ATV riders, specifying the details of the tickets and the reasons they were issued. Such annual data is critical information for DEC's land managers. DEC law enforcement stated at the time that their computers were not able to sort and report such data. This policy should recommend that such annualized data be produced.
DEC seasonal press releases and public messages about ATV use could be more frequent. Educational messages for television through DEC's Education and Public Affairs Office should be funded, developed and distributed for television. Most importantly, DEC should start working with ATV dealers for appropriate education at the point of sale in order to educate new and experienced riders about ethical ATV use, environmental and safety issues and locations where access and ATV trails are funded, maintained and available. In short, this policy should recommend that the DEC work with partners from the private sector in a concerted educational program that begins to counter the many years of television marketing and advertising which encourage irresponsible and illegal ATV use and abuse of public and private lands and natural resources.
Thank you for the opportunity to comment on this important DEC policy.
Sincerely,
David H. Gibson
Executive Director
Cc: Conservation Committee of the Board
Denise Sheehan, Acting Commissioner
Lynette Stark, Deputy Commissioner for Natural Resources
Stu Buchanan, Regional Director
Sandra LeBarron, Regional Director
Andy Jacob, Director, DEC Division of Forest Rangers