Old Mountain Road case back in court

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

LAKE PLACID — The long-running Old Mountain Road case went back to court Wednesday in Albany, where lawyers argued whether the state broke the law in claiming this town road as a wilderness trail.

This time the town of North Elba is suing the state Department of Environmental Conservation and the Adirondack Council, an environmental group that was allowed to be a party alongside the DEC. The crux again is whether Old Mountain Road is still officially a town road, as the town claims, or whether the town passively abandoned it, letting DEC absorb it into the Sentinel Range Wilderness where motor vehicle use is prohibited.

The disputed 3.5-mile central portion of Old Mountain Road is an overgrown dirt path in the towns of North Elba and Keene. It 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. Its status was thrust into debate in 2003, when Lake Placid Snowmobile Club President Jim McCulley was ticketed for riding a snowmobile on it, and again in 2005 when he was ticketed for driving a truck on it. McCulley fought the charges and won, but the DEC still insists this is a wilderness trail rather than a town road.

Essex County and federal judges ruled for McCulley against the DEC, and DEC Commissioner Pete Grannis conceded in 2009. In 2015, however, DEC Commissioner Joe Martens issued a decision to close the road to motor vehicles. North Elba responded with an Article 78 lawsuit.

Wednesday’s hearing was before the judges of the Appellate Division of the state Supreme Court, Third Department. Lake Placid lawyer Matt Norfolk, who had been McCulley’s lawyer, represented North Elba. Susan Taylor of the state attorney general’s office represented the DEC. J. Michael Naughton of Albany represented the Adirondack Council. The proceeding lasted about a half-hour, it being one of nine cases the judges heard that day.

State Highway Law Section 205 says any highway that goes unused and unmaintained for six years “shall cease to be a highway,” and that’s what the DEC and Council say happened here. Adirondack Council spokesman John Sheehan, who was in court Wednesday, noted in a phone interview that one piece of evidence is a photo of a “dead end” sign North Elba posted in the late 1990s about a mile up the road, where DEC says the town road ends and state land begins.

The DEC and Council also point to the Adirondack Park State Land Master Plan, which in 1987 started showing that Old Mountain Road had been abandoned. Sheehan said they’re not saying the SLMP was the tool by which the DEC took over the road, but rather evidence that it had been abandoned by that point — and therefore legally absorbed into the wilderness.

“Our contention is that once it’s abandoned, vehicle use by anybody is no longer legal,” Sheehan said.

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, Norfolk points out.

What counts as use is another point of dispute. The DEC and Council say the road was abandoned after six years of no cars or trucks on it, but Norfolk, in a phone interview as he drove home from Albany, said, “Under the law, you don’t necessarily have to have a motor vehicle.”

Skiing, hiking and horseback riding count as road use, he said, noting that the law was set before cars and trucks were common. He also pointed out that the town dedicated Old Mountain Road for snowmobile use in 1971.

“The evidence in the record shows that the road was continually used,” he said. “The law is that a road’s a road, until it’s proven otherwise.”

Norfolk said he argued that the DEC never appealed the dismissal of McCulley’s ticket, which is inconsistent with its claim that this is a wilderness area where driving a truck is illegal.

“You either look at the entire case and the underlying ruling, or you don’t,” Norfolk said.

He also says Martens abused his authority. According to Sheehan, Taylor effectively argued that Martens acted within his rights.

The Council, in a brief to the court, argued that the town is too late; it should have challenged the DEC’s actions in 1987, when the State Land Master Plan showed the road as abandoned. Now the town is outside the statute of limitations, the Council says.

Norfolk call that “a wrong interpretation of what the master plan is, and it flies in the face of adopted legislation and case law.” He said the DEC and Council rely too heavily on the master plan as evidence, “but that doesn’t trump state law on how the road must be closed.

“This is why Jim McCulley won in Essex County court; it’s why he won in federal court,” Norfolk added. “But they don’t stop there, do they? They do not want to accept defeat.

“I was outraged, and I expressed my outrage to the court, and I made it clear that I trusted the court’s outrage at the DEC in this legal saga.

“There are rules of law, and if you’re not successful in a legal procedure, when is enough enough?”

Norfolk said he was the only person in court from North Elba, but that the DEC, Council and attorney general’s office had several observers present.

Sheehan said lawyers expect the five-judge panel to announce its decision in six to eight weeks. Norfolk thought it might take a bit longer.

“I would imagine, because of the voluminous size of the record, it’s going to take a few months,” he said.