Court sides with North Elba in Old Mountain Road case

A riderless snowmobile is stuck in snow on the Old Mountain Road trail in February 2010. (Photo provided — Andy Walkow)

The town of North Elba won a lawsuit against the state Department of Environmental Conservation Thursday, settling once again the long-debated dispute over ownership of Old Mountain Road in Keene and North Elba.

The Appellate Division of the state Supreme Court, Third Department, ruled that the 3.5-mile dirt trail in the Sentinel Range Wilderness was not properly abandoned by the towns when the DEC absorbed it or when the 1987 Adirondack Park State Master Plan stated that the road had been closed.

Old Mountain Road runs roughly parallel to state Route 73, on the opposite side of Pitchoff Mountain, and in recent decades it has been maintained as a cross-country ski trail.

Lake Placid lawyer Matt Norfolk represented North Elba. Susan Taylor of the state attorney general’s office represented the DEC. J. Michael Naughton of Albany represented the Adirondack Council, which joined the DEC in a supportive role.

State Highway Law Section 205 says any highway that goes unused and unmaintained for six years “shall cease to be a highway.” But the Highway Law also lays out a procedure by which to close a road. The town highway superintendent has to file for abandonment with the town clerk, with the written approval of a town board majority. That didn’t happen here.

In 2003, Lake Placid Snowmobile Club President, Jim McCully, was ticketed when he purposefully rode a snowmobile on the trail, setting the stage for a court case challenging the state’s jurisdiction of the land, which would prohibit motor vehicle use.

He was initially found guilty, but the verdict was overturned in an appeal to the Essex County Court, which found insufficient evidence that the town road had been abandoned through non-use.

Two months later, McCully was contacted by a DEC forest ranger asking if he had plans to ride again.

“Interpreting this as a challenge, McCulley responded that he did in fact intend to do so and followed through with that promise the following day,” the court’s March 1 verdict states.

This case was dismissed on the grounds that evidence of heavy recreation use made abandonment through non-use impossible. Skiing, hiking and horseback riding count as road use, as the law was set before cars and trucks were common.

After the DEC lost in various courts, Commissioner Alexander “Pete” Grannis adopted the court findings in May 2009. Five years later, under a different commissioner, the DEC requested a clarification of the dismissal.

In July 2015, former DEC Commissioner Joseph Martens vacated the 2009 determination, saying the DEC’s failure to offer the 1987 Master Plan into evidence warranted reconsideration. He concluded that the DEC was correct in saying Old Mountain Road was an abandoned town road that had no legal right of way for public use.

North Elba responded with an Article 78 lawsuit, stating Martens’ determination was unlawful, irrational and in excess of authority.

Thursday, the court ruled on this lawsuit in favor of the town on the grounds that the DEC’s clarification motion was wielded improperly.

“Of the several issues raised by petitioner, we need only address its contention that DEC lacked the authority to reconsider its 2009 determination,” the decision read. “Initially, we agree with petitioner [North Elba] that DEC’s motion was improperly denominated as one for ‘clarification’ of the 2009 determination. A motion to clarify is a procedure designed solely ‘to correct errors or omissions in form, for clarification or to make the order conform more accurately to the decision.'”

Citing a 1979 decision in the Foley v. Roche case, the court said a clarification may not be used to change a prior court ruling.

“In our view, Martens’ actions here ran afoul of the principle of finality attached to administrative determinations,” the decision reads.

McCully said in a phone interview that he felt this decision vindicated him and showed an abuse of power in the administrative law system.

“I think really what this decision did was, it set a great precedent that the State Land Master Plan is not law. … I think they really screwed up by continuing to fight over this,” McCully said. “What’s going to end up being the legacy of this case is that the State Land Master Plan does not have the authority to close a road, and pretty much every road that they’ve closed with the State Land Master Plan has been closed illegally.”

He estimated that about 500 roads have been closed in the Adirondacks over the past 50 years, based on his research.

According to the decision, “Abandonment can only occur pursuant to the statutory criteria set forth in the Highway Law and the case law interpreting it.”