The Adirondack Park Agency (APA) and Department of Environmental Conservation (DEC) have embarked on a controversial set of proposed changes to the Adirondack Park State Land Master Plan (APSLMP), which sets overall management policy for the “forever wild” Forest Preserve. These changes seek to fundamentally change the character, management, and the essence of areas of the Forest Preserve classified as Wilderness, Primitive, and Canoe, which are the wildest part of the Forest Preserve.
Click here to read the comment letter on this issue from Protect the Adirondacks.
In December, five Adirondack organizations banded together to urge the APA and Governor Kathy Hochul, who would have to approve any changes to the Master Plan, to change its proposal and protect Wilderness Areas. The five groups include Protect the Adirondacks, Adirondack Council, Adirondack Mountain Club, Adirondack Wild, and Adirondack Wilderness Advocates. In a group letter to Governor Hochul, the groups stated:
The undersigned Adirondack Park advocacy groups respectfully urge you to intervene to prevent an unprecedented and significantly damaging change to the Adirondack Park State Land Master Plan (Master Plan) that is being proposed by the Adirondack Park Agency (APA). The proposed change, in the context of updating the Master Plan in terms of accessibility, would erroneously allow public motor vehicle use in Wilderness, Primitive, and Canoe areas. Without exception, the signatory groups strongly support and have been vocal advocates for making the Adirondack Park welcoming and expanding access for persons with disabilities to recreational opportunities in the Adirondack Forest Preserve. As discussed below, such expanded access for people with disabilities has been and can continue to be achieved without taking the drastic step of amending the Master Plan in the way proposed by APA and DEC.
In a joint letter to the APA, the groups stated
We strongly oppose APA’s proposal to exclude Other Power-Driven Mobility Devices (OPDMDs) from the definition of motor vehicles in the Master Plan. OPDMDs are defined in the Americans With Disabilities Act (ADA) as “any mobility device powered by batteries, fuel, or other engines–– whether or not designed primarily for use by individuals with mobility disabilities––that is used by individuals with mobility disabilities for the purpose of locomotion, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair.” This broad definition includes, among other things, cars, trucks, all-terrain vehicles, golf carts, and Segways—devices that are clearly motor vehicles.
Excluding OPDMDs from the definition of motor vehicles renders these devices conforming in all Forest Preserve land management classes. Currently, as APA staff have noted, individuals apply to the DEC for a permit to use OPDMDs on Forest Preserve lands. While we acknowledge that there is currently a system in place to provide access on a case-by-case basis, a statewide policy is needed to provide clear guidance for land managers and people with disabilities. Therefore, there is no need for, nor do ADA rules require, the Agency to so drastically alter the definition of motor vehicle in the Master Plan—a change that will threaten the very nature of the lands the Master Plan was created to protect.
The ADA Does Not Require Fundamental Alteration of Existing Programs
The APA and DEC have taken the position that they do not have the authority under the ADA to limit motor vehicles in Wilderness, Primitive, and Canoe areas. This is a misfreading of the law. Title II of the ADA prohibits State and local government entities from discriminating against persons with disabilities in the services, programs, and activities they provide and requires that “reasonable modifications” be made to such services, programs and activities to make them accessible to persons with disabilities. 42 USC § 12132. The ADA directs the Department of Justice (“DOJ”) to promulgate implementing regulations for Title II. DOJ promulgated those regulations in 1991 and updated and revised the regulations in 2010. 28 Code of Federal Regulations (“CFR”) Part 35.
Significantly, both the ADA and the DOJ implementing regulations specify that a public entity is not required to modify its programs or facilities for use by persons with disabilities if doing so would “fundamentally alter” the program or facility. The ADA provides: Nothing in this chapter alters the provision . . . specifying that reasonable modifications in policies, practices, or procedures shall be required, unless an entity can demonstrate that making such modifications in policies, practices, or procedures . . . would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved. 42 USC § 12201(f); (emphasis added).
The DOJ regulations echo this crucial statutory provision: A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. 28 CFR § 35.130(b)(7)(i); (emphasis added).
The five groups asked Governor Hochul to take two actions:
(1) directing APA to remove the proposed exclusion of OPDMDs from the Master Plan’s definition of “motor vehicle” and remove the proposed definition of OPDMD from the Master Plan; and
(2) directing DEC to develop a statewide policy for the use of OPDMDs by persons with disabilities that includes a prohibition of use on designated Wilderness, Primitive and Canoe Forest Preserve lands.
APA should not amend the Master Plan to give DEC unfettered discretion in allowing the use of OPDMDs on Forest Preserve lands because it would allow DEC to fundamentally alter the nature of Wilderness, Primitive and Canoe Areas, where motor vehicle use is currently prohibited. Doing so would be a complete abrogation of APA’s duties to protect the natural resources of the Adirondack Park.
Click here to read an article in the Adirondack Explorer on this issue.