Take a stand to protect Wilderness in the Adirondack Forest Preserve!
Submit comment letters or emails through December 2, 2024.
The Adirondack Park Agency (APA) is accepting public comments on proposed changes to the Adirondack Park State Land Master Plan (Master Plan or SLMP). The Master Plan was adopted by APA and approved by the Governor in 1972 to establish mandatory guidelines and limits for the Department of Environmental Conservation (DEC) in its management of the Forest Preserve in the Adirondack Park. In addition to the Forever Wild protections in the State constitution, the Master Plan has been the central management document for the Forest Preserve for the last 50 years.
The Master Plan has only been amended several times since its creation and, with one exception, those amendments have been relatively minor or technical in nature and did not weaken protections for Forest Preserve lands. As its central organizing principle, the Master Plan states that “the protection and preservation of the natural resources of the state lands within the Park must be paramount.”
The proposed amendments currently before APA seriously weaken some provisions, open the door to increased motor vehicle use, and add confusing, unnecessary, and scientifically inaccurate language. Specifically, as described in further detail below, these changes will result in a weakening of the current Master Plan’s requirements relating to: (1) carrying capacity studies mandated as part of the preparation of Unit Management Plans (UMPs); and (2) the opening up of Wilderness, Primitive and Canoe areas to motor vehicle use for people with disabilities.
APA is accepting written comments until December 2, 2024.
Proposed Changes That Will Weaken the Master Plan
Use of motorized vehicles in the Forest Preserve should not be expanded: Protect the Adirondacks has long supported enhancing access to the Forest Preserve for people with disabilities. PROTECT commends APA and DEC for their past and continuing efforts to expand and improve access for persons with disabilities to recreational opportunities in the Forest Preserve through creation of accessible trails, campgrounds, wildlife observation areas, roadside scenic vistas, boat launches and other recreation facilities. In addition, opportunities for the use of motor vehicles in appropriate portions of the Forest Preserve by persons with disabilities has been and continues to be provided through DEC Commissioner Policy 3, “Motorized Access Program for People With Disabilities” (called CP-3), which was brought about by the historic settlement of a federal court lawsuit that was reached 25 years ago in a case against DEC about access to the Forest Preserve for people with disabilities. It is important to note that these accommodations have been achieved by balancing compliance with the federal Americans With Disabilities Act (the “ADA”) with the management restrictions imposed by Article 14 and the Master Plan. The Master Plan includes “Guidelines for Management and Use” for each Forest Preserve Land Classification (Wilderness, Primitive, Canoe, Wild Forest, Intensive Use, Historic, and State Administrative). The Guidelines for Management and Use include set forth which Land Classifications allow public use of motor vehicles.
However, two of the proposed Master Plan amendments significantly upset the careful balance that APA and DEC have previously achieved between ADA requirements on the one hand and constitutional and Master Plan mandates on the other.
First, the proposal to exclude Other Power-Driven Mobility Devices (OPDMDs) from the Master Plan’s definition of “motor vehicle” would allow OPDMDs to potentially be used in Wilderness, Primitive and Canoe land classifications in violation of Article 14 and the Master Plan, and contrary to CP-3. OPDMDs include cars, trucks, golf carts, Segways and All Terrain Vehicles (ATVs), that are prohibited in Wilderness, Primitive and Canoe areas. As discussed in detail below, neither the ADA nor the ADA implementing regulations require such a fundamental alteration of the recreational programs offered for Wilderness, Primitive and Canoe areas, and the proposed amendment to the definition of “motor vehicle” is unnecessary and unlawful and should be deleted.
OPDMDs include motor vehicles, golf carts, Segways and All Terrain Vehicles (ATVs). Photo array from Massachusetts Department of Conservation and Recreation.
Second, the proposed amendments purport to grant DEC unfettered authority to determine where the use of OPDMDs may be appropriate. This provision is ill-advised because the provision does not exclude such use in Wilderness, Primitive and Canoe areas and, moreover, DEC currently lacks any written policy governing use of OPDMDs on the Forest Preserve and it is therefore unclear what standards or criteria are being or will be applied in determining whether and where such use is appropriate. Removing OPDMDs from the Master Plan’s definition of motor vehicle as proposed means that the restrictions for the public use of motor vehicles in each of the Land Classifications are also removed for OPDMDs. Moreover, nothing in the proposed amendments explicitly states that OPDMDs may only be used by people with disabilities so APA is opening the door to DEC allowing the use of OPDMDs by anyone anywhere in the Forest Preserve.
In addition, the proposed wholesale delegation of authority abdicates APA’s statutory obligation to determine whether DEC’s management of the Forest Preserve complies with Article 14 and the Master Plan. See Executive Law § 816(1) (requiring DEC to prepare UMPs “in consultation with” APA and requiring that UMPs “shall conform to the general guidelines and criteria set forth in the master plan”); Master Plan at 12 (requiring APA review of draft UMPs prepared by DEC); Memorandum of Understanding Between APA and DEC Concerning Implementation of the Master Plan for Management of State Lands in the Adirondack Park (March 2010) at 3 (requiring “that any policy or guidance developed by [DEC] which impacts [APA] . . . shall be effective only if developed cooperatively and agreed to by both agencies”).
The proposed amendments have the potential to vastly expand the use of motor vehicles in the Forest Preserve and would be particularly devastating for Wilderness, Primitive, and Canoe areas. This would be a major step backwards in Forest Preserve management. APA argues that it needs to do these things under the Americans with Disabilities Act (ADA) and federal regulations.
This is a misreading of federal law.
Title II of the ADA applies to State and local government entities and protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. 42 USC § 12132. The ADA and the Department of Justice’s implementing regulations do not require a state agency to make modifications that would fundamentally alter an existing program.
The ADA provides:
Nothing in this chapter alters the provision of section 12182(b)(2)(A)(ii), 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, including academic requirements in postsecondary education, 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). DOJ analysis of its regulations reiterates that “an [OPDMD] can be excluded if a public entity can demonstrate that its use is unreasonable or will result in a fundamental alteration of the entity’s service, program, or activity” because “this exception is covered by the general reasonable modification requirement contained in § 35.130(b)(7)”.
There is no question that allowing OPDMDs to be used in Wilderness, Primitive or Canoe areas would fundamentally alter the recreational program offered because public motor vehicle use has been prohibited in those areas since their inception. See APA, Adirondack Park State Land Master Plan (Aug. 2019) (“Master Plan”) at 25, 31, 33. As recognized in the Final Programmatic Environmental Impact Statement for the Master Plan (“Master Plan EIS”) governing amendments to the Master Plan, “Article XIV of the State Constitution places severe limitations on uses allowable in Forest Preserve.” Adirondack Park Agency, Final Programmatic Environmental Impact Statement Guidelines for Amending the Adirondack Park State Land Master Plan (Feb. 1979) at 33.
The Master Plan EIS also recognizes that:
The very foundation of Wilderness is the guideline which prohibits motorized access by the public and severely restricts such access by the Department of Environmental Conservation. Alteration of this guideline to permit generalized use of motor vehicles or aircraft would destroy the character of wilderness, a cornerstone of the Master Plan.
Id. at 31.
The Master Plan EIS also makes clear that the prohibition of motor vehicles is crucial to the fundamental nature of Primitive and Canoe areas as well:
The Wilderness, Primitive and Canoe classifications generally prohibit the use of motor vehicles, motorized equipment and aircraft. Any amendment to the Plan which would sanction such uses in these areas would severely diminish the Primitive character of those lands and should not be proposed. Noise intrusion is only one component of an area’s character. The mere knowledge that motorized access is permissible diminishes an area’s sense of remoteness.
Id. at 35.
Notably, the ADA also recognizes the incompatibility of motor vehicle use in Federal wilderness areas:
Congress reaffirms that nothing in the Wilderness Act (16 U.S.C. 1131 et seq.) is to be construed as prohibiting the use of a wheelchair in a wilderness area by an individual whose disability requires use of a wheelchair, and consistent with the Wilderness Act no agency is required to provide any form of special treatment or accommodation, or to construct any facilities or modify any conditions of lands within a wilderness area in order to facilitate such use.
42 USC § 122207(c)(1); (emphasis added). Also, the U.S. Dept. of Agriculture, Forest Service, Accessibility Guidebook for Outdoor Recreation and Trails (Aug. 2012) at page 6 states that “[a]n example of a fundamental alteration to a program would be allowing use of a motor vehicle in an area not designated for motorized-vehicle use”, and at page 8 recognizes that “[a]llowing motor vehicles in a nonmotorized area would be a fundamental alteration of the recreation program for that area” and is not required.
It is therefore evident that allowing use of OPDMDs in Wilderness, Primitive or Canoe areas would fundamentally alter the recreational programs offered in these areas and is therefore not required by either the ADA or the DOJ implementing regulations.
To the extent that the use of OPDMDs for persons with disabilities may be allowable or appropriate in Forest Preserve land use classifications other than Wilderness, Primitive or Canoe, the appropriateness of such use should be addressed by DEC, in consultation with APA, modifying CP-3 to address OPDMDs and not by amending the Master Plan. CP-3 already provides an ADA-compliant framework for limited operation by persons with disabilities of motor vehicles on Forest Preserve lands, and that is the appropriate method for addressing this issue. CP-3 should be amended to make clear that OPDMDs may only be used by persons with disabilities and that such use will not be allowed in Wilderness, Primitive or Canoe areas, and to address and evaluate the appropriateness of OPDMD use by persons with disabilities in other Forest Preserve land use classifications. Providing DEC with unfettered discretion to determine where OPDMDs may be used, as proposed in the Master Plan amendments, needlessly creates an open-ended and obscure process for addressing this issue, particularly since the proposed amendments fail to identify the factors that the ADA regulations require be evaluated by a state agency in determining whether to permit OPDMD use. See 28 CFR § 35.137(b)(2) (setting forth five factors to be use in determining whether to permit OPDMD use, including whether such use “creates a substantial risk of serious harm to the immediate environment or natural or cultural resources” (emphasis added)).
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.
Proposed Changes That Need Clarified and Improved
Required Carrying Capacity Studies Should Remain: PROTECT applauds APA for proposing to expand on and further explain the Master Plan’s directive that carrying capacity studies be included in all UMPs. The amendments include two new paragraphs that seek to define the parameters of carrying capacity studies and to describe the interplay between carrying capacity and visitor use management (“VUM”). SLMP Redline at 11. This effort is especially noteworthy in light of DEC’s current VUM project for the High Peaks Wilderness Complex.
PROTECT suggests that it would be helpful and informative to add a brief explanation of carrying capacity, as follows:
The scientific underpinning of carrying capacity is that land and water natural resources have limits to the amount and type of recreational use that they can withstand before adverse impacts occur. These adverse impacts include (i) unsustainable changes in natural biological and ecological conditions, characteristics and processes; (ii) unacceptable and undesirable changes in the quality of the recreational experience; and (iii) undesirable, unsafe or unsustainable conditions in the management of recreational lands and facilities.
We believe that some of APA’s proposed language includes an incomplete characterization of carrying capacity and will be unnecessary if the explanatory language proposed above is adopted. APA’s incomplete language should therefore be removed.
We also have concerns with the language that states that “[l]evels of time and resources to fulfill this commitment should be proportional to the significance of impacts.” The purpose of a carrying capacity study is to, among other things, determine the significance of impacts. Making assumptions about the significance of impacts—and restricting levels of time and resources based on those assumptions—prior to completing a carrying capacity study is premature and prejudges the outcome of the study. This sentence should therefore be removed. DEC must dedicate the time and resources necessary to conduct these assessments properly and completely in the development of UMPs.
Further, we believe that some of the proposed language could be read to imply that the primary focus and goal in visitor use management (VUM) should be recreational use by visitors rather than protection of physical and biological natural resources. However, establishing a number of visitors is only one strategy to protect resources and experiences, while allowing for recreational use. Further, VUM is an ongoing process and the particular strategies used for VUM do not necessarily need to prescribed in advance in the UMP. Regardless of the strategy adopted, the paramount goal must always be protection of physical and biological resources and ensuring that those resources are not degraded.
PROTECT urges APA to clarify the changes about carrying capacity to ensure that the focus and overriding goal of visitor use management must always be protection of natural resources and ensuring that natural resources are not degraded; it is not the goal of visitor use management to maximize recreational use up to the limit that a particular land or water management unit can withstand.
Proposed Changes That PROTECT Supports
Adding Climate Change Considerations: PROTECT applauds the APA staff for acknowledging the importance of incorporating climate change impacts, planning, adaptation and resiliency into the Master Plan’s management prescriptions for Forest Preserve lands and waters. See SLMP Amendments Redline (“SLMP Redline”) at 13-14. PROTECT is particularly gratified that the critical role of the “forever wild” Forest Preserve in providing large-scale carbon sequestration is being specifically acknowledged in the draft amendments, and that the importance of Forest Preserve in providing climate refugia and habitat connectivity for species of fish and wildlife is explicitly recognized. Id.
We note that the proposed amendments quote directly from section 7 of the CLCPA, stating that “[t]he Climate Act requires all state agencies to consider whether the issuance of permits or other approvals are ‘inconsistent with or will interfere with the attainment of the statewide greenhouse gas emissions limits established in Article 75 of the Environmental Conservation Law (ECL).’” SLMP Redline at 13. PROTECT applauds APA staff’s inclusion of this critical CLCPA requirement; however, we must note that APA staff has thus far failed to comply with this requirement in its review of projects on private lands pursuant to the Adirondack park land use and development plan (Executive Law § 805). The most recent example is APA’s issuance of a Notice of Complete Application for the mine expansion application by Barton Mines, LLC, even though the application fails to include any analysis of the project’s current or projected emissions of greenhouse gases in violation of the CLCPA. We also see no indication that APA is considering the CLCPA when it acts to expand motor vehicle use in the Forest Preserve, as it currently proposes to do, and as it did recently with its expansive interpretation for the “no material increase” for motor vehicles requirement in the Master Plan.
Make Your Voice Heard
To send an automatic email, see below.
Written comments may be submitted until December 2, 2024 and sent to:
Subject: Public Comment on the 2024 Proposed Amendments to the Adirondack Park State Land Master Plan
Megan Phillips, Deputy Director of Planning
Adirondack Park Agency
PO Box 99
Ray Brook, NY 12977
Email: SLMP_UMP_Comments@apa.ny.gov
Talking Points for Public Comments
- People with disabilities have and should continue to have access to the Forest Preserve in a way that is consistent with Article 14 and the current “Guidelines for Management and Use” for each of the Land Classifications in the SLMP. The proposed definition of “Other Power Driven Mobility Device” (OPDMD) and other references to OPDMD in the proposed amendments should be deleted.
- DEC’s Commissioner’s Policy 3 (CP-3) should be amended to make clear that OPDMDs may only be used by persons with disabilities and that such use will not be allowed in Wilderness, Primitive or Canoe areas, and to address and evaluate the appropriateness of OPDMD use by persons with disabilities in other Forest Preserve land use classifications.
- 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.
- APA should clarify the proposed amendments about carrying capacity to ensure that the focus and overriding goal of visitor use management must always be protection of natural resources and ensuring that natural resources are not degraded; it is not the goal of visitor use management to maximize recreational use up to the limit that a particular land or water management unit can withstand.
- The proposed language that states that “[l]evels of time and resources to fulfill this commitment should be proportional to the significance of impacts” should be deleted. DEC must dedicate the time and resources necessary to conduct carrying capacity assessments properly and completely in the development of UMPs.
- Thank you for acknowledging the importance of incorporating climate change impacts, planning, adaptation and resiliency into the Master Plan’s management prescriptions for Forest Preserve lands and waters. APA needs to comply with the CLCPA in its review of private land projects.
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