This is the first of three “reflections” on the recent approval of the new Essex Chain Lakes Complex Unit Management Plan that widely violated longstanding state environmental laws and management policies and regulations for the Forest Preserve. Part Two focused on the violations of Forest Preserve management policies and the Part Three violated longstanding NYS environmental laws.
The Adirondack Park Agency (APA) will take up the question of the conformance of the Essex Chain Complex Unit Management Plan (ECCUMP) with the Adirondack Park State Land Master Plan (APSLMP) on November 12th.
This will be the APA’s “first read,” having completed on October 16th its public hearing on the final draft ECCUMP submitted by the Department of Environmental Conservation (DEC). The DEC held its own public hearing in July on this UMP. The APA is expected to approve the ECCUMP in December.
The bulk of these lands were part of the Nature Conservancy’s purchase of former Finch, Pruyn and Company lands. This plan has been in development since these lands received formal classification by the APA at the end of 2013. The DEC released a draft UMP in 2014, which it later withdrew.
There are many problems with the ECCUMP. The ECCUMP is notable for its poor management of the public review process by the APA and DEC, the way that it violates a number of major longstanding Forest Preserve management policies, and the way it violates major state laws, such as the Wild, Scenic and Recreational Rivers Act. This article will focus only on the poor public process to date.
Good public process was undermined from the start. The APA and DEC have a Memorandum of Understanding (MOU) for the implementation of the APSLMP (updated in 2010). The purpose of this MOU is to detail a publicly accountable process for the development and approval of UMPs for the Forest Preserve. These are public lands, after all, so it stands to reason that there should be a publicly accountable process for developing management actions.
Section IV of the MOU details adoption of UMPs. The MOU enumerates steps for ample consultation between APA and DEC staff, which the MOU states are “exempt from the Freedom of Information Law (FOIL).” Though the public never gets access to these materials, the MOU process is clear that the DEC should develop UMPs with regular consultation by the APA to get constant informal and formal feedback on management issues and compliance with the APSLMP.
The MOU states that prior to release of a “Public Draft” UMP by the DEC, APA staff shall receive an “Initial Draft.” This draft is supposed to be a fully developed UMP with all management alternatives fully developed and assessed as well as “inventories” and various “assessments” included in completed UMPs.
An Initial Draft is an important step because within 45 days of receipt of it, the APA senior staff is supposed to provide its response on APSLMP conformance to the DEC. The DEC is then supposed to “advise the Agency in writing of its response to Agency staff comments on the initial draft UMP.” The MOU then states: “Prior to release of the Public Draft for public review, Agency staff will provide the Department with a written evaluation of APSLMP conformance issues in the proposed Public Draft. These interagency communications are an essential part of the deliberative process ordinarily exempt from FOIL.”
None of this happened with the ECCUMP. The APA states that it provided feedback in person because the issues were too complex to be written. DEC never sent any written comments back to the APA. The APA never sent any written comments to the DEC.
At the June APA meeting, the DEC passed over the “initial draft” and consultation steps and went straight to the Public Draft phase. At that meeting, APA Commissioner Art Lussi complained about the failure of the DEC to follow established process. DEC’s Rob Davies apologized and said DEC “did the best we could” and then marched ahead.
Lussi stated: “I accept your apology for your throwing these two plans on our laps with no ability to review them in advance, but I cannot not comment about it because I know what’s going to happen. We’re going to have these public meetings and then get these plans a few months from now and have to vote on them and it doesn’t allow for us to give you input. I feel like as Commissioners this was our opportunity today to comment on your thoughtful work and I can’t do that.”
The APA Chairwoman, Lanni Ulrich, added “Normally we would give feedback to the Department before it went out to public hearing, but the timing was very unfortunate so we’ll deal with it.”
No other APA Commissioners picked up on Lussi’s points and there’s nothing in the public record that shows that the APA ever dealt with DEC’s subversion of the MOU process for adopting a UMP.
While Lussi attacked flaws in the process, APA Commissioner Dick Booth attacked the substance. Booth chided the DEC for a sloppy UMP. Booth stated that as Chair of the State Lands Committee he had managed to get an early draft copy just days before the APA meeting. He said the DEC had failed to fully investigate alternatives to its preferred plan to use the Polaris Bridge and cut a redundant new snowmobile trail through the Vanderwhacker Mountain Wild Forest area. He said discussions of alternatives in the plan “were not real discussions.” He said DEC “avoided” existing policies.
Booth argued that DEC’s claims about historic public use of the Polaris Bridge were “simply not credible.” He added “There are facts that simply cannot be wished away.” He said “DEC has tried to equate roadways that were open to leasees with roadways that are open to the public. That is not a fair interpretation of the APSLMP.” He challenged the legality of the DEC’s intent to retain a number of roads in the Essex Chain Primitive Area, stating, “Creating a fiction about what DEC can do as far as administrative roads is not the way to proceed.” He said that snowmobiling is simply not allowed in Scenic River corridors under the Wild, Scenic and Recreational Rivers Act and regulations. DEC demurred in engaging or answering Booth’s questions.
When DEC returned to the APA with its final UMP in September, after completing its public hearing in July, APA Commissioner Dick Booth had more questions ready, believing this would be the right time to probe problems in the plan at the point before the APA held its public hearing. The videotape of the meeting records interesting exchanges not between Booth and the DEC, but between Booth and APA leaders who acted as ardent DEC apologists. APA Chairwoman Lani Ulrich interrupted or cut Booth off more than a dozen times, and APA Counsel James Townsend jumped in four times. APA staff chimed in that they had not written about APSLMP conformance, despite the MOU requirement that they should have done so months beforehand.
Despite efforts to interfere with his questioning, Booth persisted and took aim at the DEC for failing to state in a number of places in the ECCUMP that various actions it proposed did not comply with the APSLMP. He pressed DEC to acknowledge that mountainbikes are prohibited in Primitive areas, that motor vehicles are banned from “trails,” and that the DEC’s preferred new snowmobile trail through the Vanderwhacker Mountain Wild Forest is duplicative and redundant. He further argued that management actions in the UMP that required an amendment to the APSLMP could not be approved. APA Chairwoman Lani Ulrich told Booth that DEC could answer these questions “in November.”
Twenty minutes into Booth’s questioning, Ulrich reprimanded Booth not to belabor his points: “Your point is made, now lets move on.” She also stated “This is not a cross examination and it’s very uncomfortable.” She told Booth “I’m not interested in a cross examination. That’s not our job.” At one point she jumped in and told Booth “That’s enough.”
Perhaps important questions will be answered in November and December when the APA takes up the final ECCUMP, but APA leaders did all they could to make sure that questions were not answered in June or September, at a point before either the DEC or APA held public hearings.
Another procedural problem is that DEC has already opened the Essex Chain Lakes Primitive Area for mountainbiking despite the SLMP requirement that prohibits mountainbiking in such areas. The top guideline for Primitive Areas is that they be managed as close to Wilderness as possible. DEC jumped the gun. Moreover, the ECCUMP proposes that APA approve management actions that will require that the APSLMP be amended. This puts the cart before the horse. In the past 40 years we have not seen actions approved in a UMP that require an APSLMP amendment. All actions in a Ump should conform with the APSLMP. If APSLMP amendment is needed, it should precede approval of a UMP.
In July, the DEC held a public hearing on its official draft of the ECCUMP. The most controversial issue in this UMP is the decision by the DEC to retain the Polaris Bridge over the Hudson River for a major new snowmobile trail to connect Indian Lake and Minerva. Not only does this proposal require retaining the bridge, which violates the Wild, Scenic and Recreational Rivers Act, but also necessitates cutting a new class II community connector snowmobile trail through a trailless part of the Vanderwhacker Wild Forest.
An analysis of the public comments, through a Freedom of Information request, found that after removing duplicate letters or those from people who submitted multiple letters, there were around 1600 total comments from individuals and organizations, totaling over 2,000 pages. Around 1400 comments, or 87%, opposed the new snowmobile trail through the Vanderwhacker Mountain Wild Forest trail and opposed retention of the Polaris Bridge. Around 150 comments supported these actions, just 10%. The remaining letters did not address this issue.
Was the DEC swayed by such an overwhelming showing of opposition? Not at all. Its final ECCUMP, submitted to the APA in September, retained as its centerpiece the development of the new snowmobile trail through the Vanderwhacker Mountain Wild Forest and retention of the Polaris Bridge.
The Essex Chain Complex includes some of the most beautiful and ecologically complex natural resource areas in the Adirondack Park. Yet, the process for developing a management plan has been deeply flawed as responsible state agencies have openly violated their duties in the public review process. Rather than embracing a serious debate about either the process or the substance of this UMP, the APA has moved consistently to squash debate, acting as an apologist for the DEC.
If taking short cuts and squashing public debate were not troublesome enough, these state agencies have also showed a callous disregard for public concerns. Over 87% of public commenters opposed a new snowmobile trail through the Vanderwhacker Wild Forest Area and retention of the Polaris Bridge, yet the DEC refused to budge with its plans.
The APA closed its public hearing on October 16th. It’s review of Public Comments is startling for how few its says it received (154) and for its refrain that it “defers” to DEC on all the controversial issues. The APA “Staff Memo” fails to wrestle in any meaningful way with any of the major issues raised dealing with APSLMP conformance or compliance with state law.
If serious questions about the ECCUMP are to be asked and answered, this will have to start on November 12th at the APA’s monthly meeting. When APA Commissioner Dick Booth tried to ask serious questions in June and September, he was interrupted and ultimately shut down by APA leaders. An open and honest Q & A between the APA and DEC would have been very helpful to the public in advance of the public hearings, rather than after.
The public process administered for the ECCUMP has been exceedingly poor, rivaled only by the many ways that this UMP violates existing laws, policies and regulations, which are the subjects of the new two parts.
This article was also published on the Adirondack Almanack.