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Digging into the railroad lawsuit

MALONE – A lawsuit filed against the state departments of Environmental Conservation and Transportation, along with the state Adirondack Park Agency, is still waiting to be heard.

The lawsuit alleges that the APA, DOT and DEC failed to take into account historic preservation and economic figures when making the decision to allow 34 miles of train track to be taken up between the villages of Lake Placid and Tupper Lake.

The suit was filed in state Supreme Court in Franklin County, where much of the disputed 34 miles of track resides.

The Adirondack Railway Preservation Society, the non-profit parent company of the Adirondack Scenic Railroad, filed the suit after Gov. Andrew Cuomo announced the adoption of what is called Alternative 7 on May 27 this year. ARPS operates tourist trains at the southern end of the line and between Saranac Lake and Lake Placid. If the state’s plan comes to fruition, the train would have to cease operating between Tupper Lake and Lake Placid.

A related business, Rail Explorers USA, runs rail bike tours on the tracks between Saranac Lake and Lake Clear and on to Tupper Lake. They too, would have to cease operations here if the tracks are removed.

Rail Explorers told the Enterprise on Thursday that it would be ceasing operations at the end of October.

Alt. 7 is an amendment to the unit management plan for the travel corridor, a document that guides management of the resource. DOT has jurisdiction over all travel corridors in the Adirondack Park.

The lawsuit makes numerous claims, namely that the decision was arbitrary and capricious, the state ignored historic preservation laws, and that the state ignored economic and visitor impact figures that contradicted the decision.

A hearing on the lawsuit was scheduled for the end of September but was delayed until Nov. 2 after the state discovered that it may not own proper fee title to all of the parcels of private property the tracks currently cross.

Response

The state filed a response to the lawsuit, asking the presiding Judge Robert Main Jr. to dismiss the suit on a number of grounds. The state’s response was filed with the court on Aug. 17.

In the response, the state included several affidavits from representatives of the DEC, DOT and APA. A single affidavit from ARPS President Bill Branson filed with the lawsuit stretches to more than 1,000 pages. The state’s response and affidavits totaled about 100 pages.

The state’s call for dismissal highlights several objections to the lawsuit.

Standing to sue

The state argues that ARPS has no standing to sue over the decision since its lease does not give it a protected property interest.

“Petitioner (ARPS) did not acquire a property interest in the permit because DOT exercises discretionary authority – annually – to either grant or deny the 30-day revocable permit” the railroad operates on.

“Any claim that Petitioner has a protected property interest in its discretionary, seasonal DOT rail permit is without merit.”

The state goes on to say that Alt. 7 also includes provisions to upgrade the tracks south of Tupper Lake, and the railroad can still operate on that portion of the rails.

“In any event, to the extent Petitioner will no longer be able to provide rail service between Saranac Lake and Lake Placid, under Alt. 7, it will have the option to enter a lease agreement with the state to offer rail service from Big Moose to Tupper Lake on state-rehabilitated rail infrastructure.”

The state’s plan includes $15 million to rehab the 45 miles of track between Tupper Lake and Big Moose.

Historic preservation

The DEC and DOT developed the plan together, as DOT has jurisdiction over the travel corridor and DEC would administer the trail segment of the corridor.

In a letter included with the state’s response, the state Office of Parks, Recreation and Historic Preservation’s John Bonafide said that removing the rails would have an adverse impact on the tracks as a historic resource.

The letter goes on to say that the next step for the state “in conjunction with this office, is to establish meaningful ways to minimize and/or mitigate the adverse impacts.”

The state says in its response to the lawsuit that that process is ongoing and notes that the historic preservation laws only require consultation with OPRHP but the state “is not compelled to avoid all impacts to the travel corridor.

“Common mitigation measures include making a record of buildings that must be demolished, or recovering scientific information from archaeological sites that will be destroyed. Public education and interpretation are often components of these measures.”

The corridor is listed on the state and national Registers of Historic Places. The state says in its response that since no federal approval is required for the plan, “compliance with the National Historic Preservation Act is not required.”

“Arbitrary and capricious”

The railroad claims that the state’s decision should be vacated because it is “arbitrary and capricious.” ARPS also says that the state was presented with economic and visitor impact studies that showed the Alt. 7 plan in a less than glowing light, and the state ignored those studies.

The state counters by noting that it held eight public listening sessions, two public hearings and several public comment periods. The state also points to the APA review and DEC and DOT approval processes that also included taking public comments. The whole process of public input and decision making spanned about 33 months.

The railroad says “the 2016 UMP, and its proposed Alt. 7, were recommended based on certain projections regarding the environmental, social and economic impacts, which are without rational basis and which ignored competing projections.”

However, the state says the assumptions are based “directly on the estimates and assumptions provided by the Adirondack Scenic Railroad.”

The state says that economic projections and an independent study showed that maintaining all rail, having all trail or having the combination of rail and trail all showed about the same economic impact.

In supporting documents filed with the state’s response, it says that the combination plan offers the best economic return, with an estimated $2,739,881 impact. The all-trail option would bring in an estimated $2.3 million, while having rail service from Big Moose to Lake Placid would bring in $2,651,976.

The state also estimated that the trail between Lake Placid and Tupper Lake will bring more than 73,000 users to the area each year.

The railroad had a total ridership of about 70,000 last year. But that number includes riders at both the Saranac Lake – Lake Placid run and at the southern end of the line. Also, federal regulations state that rail ridership numbers can only be counted as one-way transport, so a person riding the train from Saranac Lake to Lake Placid and back would be counted as two riders.

The state also said that “maintenance costs are estimated to be similar for either an active rail or a recreational trail, about $1,500 per mile.”

Another aspect of this part of the suit is that there were other options for how to manage the corridor for maximum benefit.

One such proposal was to maintain the tracks but add a nearly parallel trail. This was the preferred alternative for the state when the 1996 UMP was presented, but the state has since said that adding the trail is unfeasible for a variety of reasons.

The state notes that more than 3 miles of a proposed trail route goes through wetlands that are protected and relies on public roadways for portions as well. Part of the corridor also goes through the St. Regis Canoe Area, which is managed as a state wilderness area.

Snowmobiles are allowed to operate on the corridor now under a lease from the state, but diverting snow machines off the corridor and onto a trail through protected areas would not be allowed. No bikes or snowmobiles are allowed in the canoe area.

“The state acknowledged that building a parallel trail would (1) call for moving trail segments onto neighboring Forest Preserve lands, (2) result in impacts to the extensive wetlands along the corridor, and (3) preclude the use of snowmobiles along portions of the route because of existing Adirondack forest preserve land classifications.

“The state also found that portions of a potential rail and trail route would raise public safety concerns because the proposed location would force the public to travel on highway shoulders.

“Although a parallel trail alternative would preserve the rails in place, the state ultimately decided that this alternative would be cost prohibitive, result in significant adverse environmental impacts, and would not result in a flat, long-distance trail capable of safely accommodating bicyclists and pedestrians.”