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Disabled-access floatplane suit is cut but not killed

July 6, 2012
By CHRIS KNIGHT - Senior Staff Writer (cknight@adirondackdailyenterprise.com) , Adirondack Daily Enterprise

A judge tossed out some of the claims, some of the plaintiffs and some of the defendants but didn't kill a federal lawsuit brought against the state by a group of disabled men who say they've been denied access to more than three dozen remote ponds and lakes in the Adirondacks.

The June 22 decision by U.S. Northern District Chief Judge Gary Sharpe allows the case to move forward under the lead plaintiff, former Warrensburg town Supervisor Maynard Baker, but limits the scope of the case to only one of his arguments: that the state failed to make him a "reasonable accommodation" to access the lakes.

"I am happy and relieved that Chief Judge Sharpe has permitted this lawsuit to go forward," Lake Placid attorney Matthew Norfolk, who's representing Baker and the other defendants, said in a prepared statement. "Mr. Baker is excited too."

Article Photos

A Helms Aero Service floatplane takes off from Long Lake in September 2008.
(Enterprise file photo — Mike Lynch)

The lawsuit was filed in 2010 by Baker and five other disabled men - Douglas Irish, Mark Schumaker, Brett A. Kilroy, Louis Giovannini and Richard Kenny - who claim the state's ban on the use of floatplanes, motorized vehicles and bicycles to access the 38 lakes and ponds in wilderness, primitive and canoe areas violates the Americans with Disabilities Act. The state as a whole and its Department of Environmental Conservation, Adirondack Park Agency, former Gov. David Paterson, former DEC Commissioner Pete Grannis and former APA Chairman Curt Stiles were named as defendants in the case.

In 2009, Baker contacted DEC to request permission to use a floatplane to access the lakes, but the request was denied and the state made no other accommodation in response to his request, according to court documents.

"Plaintiffs now allege that defendants violated the ADA by failing to provide them with a reasonable accommodation, and by enacting facially neutral rules and regulations that have a disparate impact on individuals with disabilities," the judge wrote in describing the background of the case.

The state argued that Baker and the other defendants lacked the standing to file the lawsuit because they didn't establish an actual injury by their inability to access the lakes. But Sharpe ruled that the men had suffered a "cognizable injury" because they had been deterred from visiting the lakes, and that therefore they had standing to file the suit.

However, the judge granted the state's motion to dismiss the "reasonable accommodation" claims filed by all the defendants except Baker. Unlike Baker, who had sought to access the lakes by floatplane in 2009, Sharpe said the five other men "never sought an accommodation from DEC." Norfolk said they didn't do so because the request would have been futile.

Sharpe also rejected the argument, made by all the defendants, that the state's rules and regulations on motorized access in the Adirondacks have a "disparate impact" on people with disabilities, describing it as "insufficiently pled.

"Despite being give three attempts to state such a claim, the court agrees that plaintiffs have failed to raise even an inference of discriminatory impact," Sharpe wrote.

The judge also agreed that the state, the DEC and the APA are immune from suit, and that a plaintiff in such a case must name a state official as a defendant rather than a state agency. Norfolk did list Paterson, Grannis and Stiles as defendants, although their names have now been substituted with the officials currently holding their positions: Gov. Andrew Cuomo, DEC Commissioner Joe Martens and APA Chairwoman Lani Ulrich.

While all but one of his clients has been dismissed from the case, Norfolk said it isn't over for them.

"I envision that those plaintiffs who had their claims dismissed will file a formal request with the state to access certain wilderness lakes via floatplane and in doing so will be asking the state to provide them with a reasonable accommodation under the ADA," Norfolk wrote. "Once the state denies their request and fails to provide them with a reasonable accommodation, as we anticipate, those plaintiffs will then be free to re-file their lawsuit against the state and should be in the same position as Mr. Baker is presently. The only thing to be lost is time."

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Contact Chris Knight at 518-891-2600 ext. 24 or cknight@adirondackdailyenterprise.com.

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38 lakes and ponds

The waterways that the defendants claim they've been effectively denied access to, because of their disabilities, are as follows:

West Lake

South Lake

Cedar Lake

Whitney Lake

Mud Lake

Metcalf Lake

Horn Lake

Pillsbury Lake

Spruce Lake

Shallow Lake

Lower Sister Lake

Queer Lake

Constable Pond

Terror Lake

Pigeon Lake

Cascade Lake

Cage Lake

Salmon Lake

Negro Lake

Rock Lake

Sunshine Pond

Lyon Lake

Witch Hopple Pond

Big Deer Pond

Lake Lila

Clear Pond

Crooked Lake

Sand Lake

Upper Siamese Pond

Lower Siamese Pond

Round Pond

Puffer Pond

Cascade Pond

Stephen's Pond

Silver Lake

Pharoah Lake

Crane Pond

Round Pond

 
 

 

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