Opinion
66314
10-08-2019
In the Matter of the Application of ADIRONDACK WILD: FRIENDS OF THE FOREST PRESERVE, and Protect the Adirondacks! Inc., Petitioners, For Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules and Injunctive Relief, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; and Basil Seggos, in his capacity as Commissioner of the New York State Department of Environmental Conservation, Respondents.
Christopher A. Amato, Delmar, for Petitioners. Letitia James, Attorney General, Albany (Nicholas J. Buttino of counsel), for Respondents.
Christopher A. Amato, Delmar, for Petitioners.
Letitia James, Attorney General, Albany (Nicholas J. Buttino of counsel), for Respondents.
Robert J. Muller, J.
The Adirondack Park was recently described by the Honorable Eugene M. Fahey of the Court of Appeals as "a ‘crown jewel’ of New York" (Dan M. Clark, NY High Court to Decide Future of One-Mile Stretch of Road in Adirondacks, NYLJ, Sept. 6, 2019, at 1, col 5), an apt description shared by many throughout the State. It thus comes as no surprise that this proceeding — which pertains to how the public may use some of the most primitive and remote areas in the Adirondack Park — has a long and complex history, beginning in the executive and legislative branches and ultimately winding its way to the judiciary. The Court will begin its discussion with a description of this history and then proceed to an analysis of the issues before it.
In 1971, the Legislature enacted the Adirondack Park Agency Act (see Executive Law art 27 [hereinafter the APA Act] ) to provide guidelines for the protection and management of public lands within the Adirondack Park. The Governor then approved the Adirondack Park State Land Master Plan (hereinafter the Master Plan) the following year, which requires all public lands in the Adirondack Park to be classified according to their characteristics and capacity to withstand use. Through separate legislation entitled the Wild, Scenic and Recreational Rivers System Act (see ECL 15-2701 et seq. [hereinafter the Rivers System Act] ), the rivers in the Adirondack Park are classified as wild, scenic, or recreational. Each of these land and river classifications includes its own set of guidelines for permissible uses and structures.
The APA Act requires respondent Department of Environmental Conservation (hereinafter DEC) to develop, in consultation with the Adirondack Park Agency (hereinafter the APA), individual management plans for units of land in accordance with their classifications. The purpose of a unit management plan is to establish goals and objectives for public use and management of lands in that area, including plans for snowmobile and other recreational trails. All unit management plans must conform to the general guidelines and criteria set forth in the Master Plan.
In 2006, DEC and the APA adopted a snowmobile plan which was designed to create a system of trails between communities in the Adirondack Park. DEC and the APA then adopted a document setting forth guidance for the siting, construction, and maintenance of snowmobile trails in the Adirondack Park in 2009 (hereinafter the 2009 Guidance). The 2009 Guidance provides for a two-tiered classification system for snowmobile trails: Class II community connector trails and Class I secondary trails. The goal of the 2009 Guidance is to connect communities in the Adirondack Park — so as to provide them with economic benefits — while at the same time preserving the nature and character of the land. The 2009 Guidance also seeks to reduce the number of unsafe and remote snowmobile trails.
In 2012 and 2013, the State acquired from The Nature Conservancy two tracts of land in the Adirondack Park: the 18,000-acre Essex Chain Lakes parcel and the 960-acre Indian River Parcel (hereinafter referred to as the Essex Chain Complex). The Essex Chain Complex "consists of a multitude of remote and wild lakes, ponds, and wetlands; secluded and undeveloped stretches of the Hudson, Cedar, Indian and Rock Rivers; and thousands of acres of intact, unfragmented forest" [Amended Petition, at ¶ 3]. Following acquisition of the Essex Chain Complex, DEC, in consultation with the APA, developed a unit management plan for these lands (hereinafter the Complex Plan). DEC thereafter prepared an environmental impact statement (hereinafter EIS) for the Complex Plan in accordance with the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA] ), with the final EIS accepted in October 2015. In November 2015, the APA determined that the Complex Plan conformed with the Master Plan and, in March 2016, DEC approved the final EIS and Complex Plan.
The Nature Conservancy purchased these lands from a successor to Finch, Pruyn & Co., a paper company that owned over 161,000 acres of forest land in the Adirondack Park.
In or around May 2016, petitioners Adirondack Wild: Friends of the Forest Preserve (hereinafter Adirondack Wild) and Protect the Adirondacks! Inc. — both not-for-profit corporations dedicated to protecting the Adirondack Park — commenced a combined CPLR article 78 proceeding and declaratory judgment action in the Supreme Court of Albany County to challenge the Complex Plan to the extent that it permits construction of a new snowmobile corridor in the Essex Chain Complex. Petitioners asserted four causes of action: (1) the Complex Plan permits the construction of a new snowmobile bridge over a segment of the Cedar River that is designated as scenic, in violation of the Rivers System Act; (2) the Complex Plan opens the Polaris Bridge to the public for snowmobiling over a segment of the Hudson River that is designated as scenic, in violation of the Rivers System Act; (3) the Complex Plan allows public snowmobile use on the portion of Chain Lakes Road (South) that is located within an area where the Hudson River is designated as wild, in violation of the Rivers System Act and the Master Plan; and (4) the Complex Plan calls for the construction and establishment of a new Class II snowmobile trail connecting the hamlet of Indian Lake, Hamilton County with the hamlet of Minerva, Essex County that duplicates an existing snowmobile route that connects the same two communities, in violation of the 2009 Guidance.
In January 2017, Supreme Court (Ceresia, J.) dismissed the petition, concluding that the first two causes of action were not ripe for judicial review and the remaining two causes of action failed on the merits. Petitioners thereafter appealed and the decision was affirmed by the Appellate Division, Third Department in Matter of Adirondack Wild: Friends of the Forest Preserve v. New York State Adirondack Park Agency (161 AD3d 169 [2018] ) (hereinafter Matter of Adirondack Wild ), with two Justices dissenting. With respect to the first and second causes of action, the majority stated as follows:
"[P]etitioners assert that construction of a bridge over a segment of the Cedar River designated as scenic and opening the Polaris Bridge over the Hudson River to snowmobile traffic in an area that is also designated as scenic would violate the Rivers System Act, which they contend prohibits all motorized open space recreational uses in scenic river areas. However, adoption of the Complex Plan was not alone sufficient to authorize construction of the Cedar River Bridge or use of the Polaris Bridge by snowmobiles. Rather, ... permits and variances must be obtained through further administrative action before the proposed uses may be established. Specifically, permits are required to erect a bridge over a scenic river (see 6 NYCRR 666.13 [E] [5] [b] ) or to construct a trail within a scenic river area (see 6 NYCRR 666.13 [E] [3] ). Moreover, variances are required for the use of motorized vehicles within scenic river areas (see 6 NYCRR 666.9 [d] ), and for construction of a Class II snowmobile trail, to the extent that it may exceed the maximum trail width of four feet that is permitted by regulation (see 6 NYCRR 666.3 [lll] ). Permit and variance applications are governed by the Uniform Procedures Act (see ECL art 70), which imposes conditions related to the substantive relief sought and provides the opportunity for further public participation. No permit or variance may be granted unless the proposed use is consistent with the purpose of the Rivers System Act (see 6 NYCRR 666.8 [e]; 666.9 [d] ), and conditions may be imposed as necessary to preserve and protect affected river resources or to assure compliance with the Rivers System Act (see 6 NYCRR 666.8 [g]; 666.9 [c] ). Moreover, there is an opportunity for public comment on applications for a permit or a variance (see ECL 70—0107 [3] [c] ; 70—0109 [2] ), and the granting of a permit or variance may be challenged through a CPLR article 78 proceeding. Thus, inasmuch as the harms upon which the first and second causes of action are based may be prevented or ameliorated by further administrative action, Supreme Court correctly concluded that the first and second causes of action are not ripe for judicial review" ( id. at 173-174 ).
With respect to the third cause of action, the majority in Matter of Adirondack Wild found that the record before the DEC contained sufficient evidence of snowmobiles having historically been used on the subject portion of Chain Lakes Road (South) and, as such, that the DEC had a rational basis for its determination to allow public snowmobile use on that portion of the trail (see id. at 176-177). In this regard, the Rivers System Act prohibits access by motor vehicles in wild river areas (see ECL 15-2709 [2] [a] ), unless such access constitutes a continuation of an existing use which is neither altered nor expanded (see ECL 15-2709 [2] ). Finally, the majority found that the fourth cause of action was appropriately dismissed, as "[t]he 2009 Guidance contains internal guidelines for the siting of snowmobile trails on forest preserve lands in the Adirondack Park; however, it does not commit DEC to a definite course of future action" (see Matter of Adirondack Wild: Friends of the Forest Preserve v. New York State Adirondack Park Agency , 161 AD3d at 178 ).
The dissent in Matter of Adirondack Wild was directed toward the majority's finding that Supreme Court properly dismissed the third cause of action. Specifically, the dissent found that "the record does not support a conclusion that members of the general public previously operated snowmobiles on the Chain Lakes Road section in a density commensurate with that which will result from opening it to public use" ( id. at 179 ). The dissent stated as follows:
"In light of the clear record evidence that motor vehicle access to the Chain Lakes Road section was limited to a small number of legally authorized users, and closed to the public, opening this wild river area to snowmobile use by the general public will impermissibly alter and expand the prior use. DEC's conclusion to the contrary is irrational and unreasonable, and, therefore, we would reverse the dismissal of petitioners' third cause of action" (id. at 182).
In June 2018, petitioners appealed that portion of the Third Department's determination which affirmed the dismissal of the third cause of action and oral argument was held before the Court of Appeals on September 5, 2019. A decision is expected shortly.
In August 2018, DEC Division of Lands and Forests filed an application with DEC Division of Environmental Permits for (1) a permit for construction of a bridge over the scenic river segment of the Cedar River (see 6 NYCRR 666.13 [E] [5] [b] ); (2) a permit for construction of a trail in a scenic river area (see 6 NYCRR 666.13 [E] [3] ); (3) a permit to allow motorized open space recreation uses on the proposed bridge and within the river area of a river designated as scenic under the Rivers System Act (see 6 NYCRR 666.9 [d] ); and (4) a variance to allow the proposed trail to be constructed to a width of 9 to 12 feet (see 6 NYCRR 666.9 [a] ). On December 19, 2018, DEC Division of Environmental Permits granted the application and issued the requested permits and variance. Petitioners thereafter commenced this CPLR article 78 proceeding to challenge the issuance of the permits and variance. Petitioners allege eight causes of action:
Although petitioners originally commenced a combined CPLR article 78 proceeding and declaratory judgment action by the filing of a verified petition and complaint, they thereafter filed an amended petition asserting only CPLR article 78 claims.
(1) the permits and variance authorize the construction of a new snowmobile bridge over a segment of the Cedar River that is designated as scenic, in violation of the Rivers System Act (see ECL § 15-2709 ; 6 NYCRR 666.13 );
(2) DEC failed to make the requisite findings prior to issuance of the permits, in violation of the Rivers System Act (see 6 NYCRR 666.8 [f] );
(3) the variance authorizes a prohibited use — namely, motorized recreation — in a protected scenic river corridor, in violation of the Rivers System Act (see 6 NYCRR 666.3 (lll), 666.9 [a] );
(4) DEC failed to weigh the benefit of granting the variance against the adverse impacts to protected river resources, in violation of the Rivers System Act (see 6 NYCRR 666.9 [a] [2] );
(5) the opening of the protected river corridor to public snowmobiling constitutes an alteration and/or expansion of a prohibited use — namely, motorized recreation — in a protected river corridor, in violation of the Rivers System Act (see ECL § 15-2709 [2] );
(6) DEC "failed to classify its proposed action, prepare an [environmental assessment form (hereinafter EAF) ], identify and thoroughly analyze potential adverse environmental impacts, make a significance determination, and either prepare an EIS or issue a [n]egative [d]eclaration prior to issuing the [permits and variance]" [Amended Petition, at ¶ 112], in violation of SEQRA (see ECL art 8);
(7) DEC failed to prepare an EIS prior to issuing the permits and variance, in violation of SEQRA (see 6 NYCRR 617.7 [c] [1] [I], [ii], [v], [viii] ); and
(8) the EIS prepared for purposes of the Complex Plan was generic and DEC failed to prepare a supplemental EIS for the proposed Cedar River Bridge and recreational trail, in violation of SEQRA (see 6 NYCRR 617.10 [d] [4] ).
Petitioners request that this Court vacate the permits and variance, as well as permanently enjoin and restrain respondents from constructing the Cedar River Bridge. Petitioners also seek costs and reasonable counsel fees in connection with the proceeding. Respondents answered the amended petition, as well as filed a motion to strike petitioners' reply papers. Petitioners then cross-moved to strike several affidavits included in respondents' answering papers. Oral argument was held on May 8, 2019 and, on May 13, 2019, the Court issued a letter Order denying both respondents' motion and petitioners' cross motion. Respondents, however, were provided with thirty (30) days in which to respond to one affidavit included in petitioners' reply papers which the Court found improperly presented new evidence. This response was thereafter received by the Court on May 20, 2019.
When the parties appeared for oral argument, respondents agreed to provide petitioners with one week's notice of the date of commencement of site preparation for the Cedar River Bridge. To that end, on June 7, 2019 counsel for respondents sent correspondence to counsel for petitioners advising that site preparation would begin on or about June 15, 2019. Petitioners then filed a motion by Order to Show Cause on June 13, 2019, seeking a preliminary injunction prohibiting respondents from undertaking any site preparation or construction on the Cedar River Bridge until a final determination in this proceeding. Petitioners also sought a Temporary Restraining Order (hereinafter TRO) pending the return date of the motion. Oral argument was held with respect to the TRO on June 14, 2019, with the Court finding that immediate and irreparable damage would result if respondents were permitted to proceed with site preparation for the Cedar River Bridge pending the return date of the motion (see CPLR 6301 ; Pantel v. Workmen's Circle/Arbetter Ring Branch 281 , 289 AD2d 917, 918 [2001] ). The TRO was thus granted and the motion by Order to Show Cause assigned a return date of July 19, 2019. The Court declined to impose an undertaking prior to granting the TRO because respondents were aware that petitioners would likely seek injunctive relief and had notified all prospective bidders on the project of the possibility (see CPLR 6313 [c] ). It therefore did not appear that respondents would incur any immediate costs as a result of the TRO.
On June 27, 2019, this Court issued a letter Order advising the parties that it was considering the issuance of a stay pursuant to CPLR 2201 pending a decision from the Court of Appeals in Matter of Adirondack Wild . Counsel for the parties were invited to submit memorandums of law on the issue on or before July 19, 2019, the return date of petitioners' motion for a preliminary injunction.
The Third Department then issued a decision in Protect the Adirondacks! Inc. v. New York State Dept. of Envtl. Conservation (175 AD3d 24 [2019] ) (hereinafter Protect the Adirondacks! ) on July 3, 2019. That combined CPLR article 78 proceeding and declaratory judgment action — of which this Court was previously unaware — was commenced by Protect the Adirondacks! Inc. in April 2013 to obtain, inter alia , a declaration that DEC's construction of more than 27 miles of Class II snowmobile trails violates NY Constitution, article XIV, § 1 which states, in pertinent part:
"The lands of the state, now owned or hereafter acquired, constituting the [F]orest [P]reserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed."
Following a non-jury trial, Supreme Court (Connolly, J.) "declared that the ‘construction in the Forest Preserve of the Class II trails that were planned and approved as of October 15, [2014 did] not violate [ NY Constitution, article XIV, § 1 ]’ " (id. ). This decision was reversed in Protect the Adirondacks! , with the Third Department finding as follows:
"Prior to trial here, the parties stipulated that the length of the 11 trails at issue was 27 miles and the construction would result in the cutting of 6,184 trees that measured at least three inches [in diameter at breast height (hereinafter DBH) ].
" ‘Breast height’ is 4½ feet above the ground and DBH is the standard measure used by DEC for projects involving the cutting, removal or destruction of trees" (Protect the Adirondacks! Inc. v. New York State Dept. of Envtl. Conservation , 175 AD3d at 26, n 2 ).
We agree with Supreme Court's determination, based on the expert historian's testimony as well as other evidence, that the use of the word ‘timber’ in the constitutional provision at issue is not limited to marketable logs or wood products, but refers to all trees, regardless of size. Although tree size and maturity may be considered in determining whether a proposed project's tree cutting is substantial or material, plaintiff presented expert testimony debunking the assumption that smaller trees are necessarily young or immature; some forest trees measuring less than three inches DBH can be more than 100 years old, and smaller mature trees play an important role in the continuing ecology of the forest. Accepting those factual findings, approximately 25,000 trees either had been or would be cut to construct the trails" (id. at 31).
The Third Department then concluded:
"Although this project did not involve clear-cutting or the removal of a large swath of trees, but instead necessitated destruction of narrow corridors of trees for many miles, we need to consider the entire project when determining its effects. The destruction of a substantial number of trees can be problematic whether those trees were together or spread out along one or more portions of the Forest Preserve. For example, the construction of these trails required the destruction, on average per mile, of over 200 trees at least three inches DBH and approximately 925 trees of all sizes. It would be anomalous to conclude that destroying 925 trees per mile of trails, or approximately 25,000 trees in total, does not constitute the destruction of timber to a substantial extent or to any material degree. Thus, the construction of the Class II trails resulted in, or would result in, an unconstitutional destruction of timber in the Forest Preserve" (id. at 31-32).
Counsel for petitioners sent correspondence to this Court on July 11, 2019 requesting a conference to discuss the potential impact of Protect the Adirondacks! on this proceeding, which conference was held on July 19, 2019. The Court then issued a letter Order that same date directing petitioners to submit a memorandum of law on the potential impact of Protect the Adirondacks! by August 14, 2019 and giving respondents until August 28, 2019 to respond. The Court also extended the deadline to August 28, 2019 for submission of memorandums of law on the possible issuance of a stay pursuant to CPLR 2201, and extended the TRO pending further Order of the Court. All submissions have now been received.
The Court will first address the impact, if any, of Protect the Adirondacks! on the instant proceeding. At the outset, it must be noted that the Class II community connector trail under consideration here — namely, the Indian Lake to Minerva community connector trail — was not before the Third Department in Protect the Adirondacks! Inc. , which involved only those Class II trails "constructed or under construction beginning January 1, 2012 through October 15, 2014" (id. at 27). With that said, petitioners contend as follows:
"Although the Indian Lake to Minerva snowmobile route was not considered by the Third Department in issuing its ruling, this route is part of DEC's planned network of Class II community connector snowmobile trails on Forest Preserve lands. Thus, under the Third Department's decision, the tree-cutting required to finish the Indian Lake-Minerva route must be considered along with the tree-cutting required to complete all other planned snowmobile routes in determining whether it passes constitutional muster" [Memorandum of Law of Christopher A. Amato, Esq., dated July 15, 2019, at p 8].
Petitioners further contend that the final leg of the Indian Lake to Minerva trail — located in the Vanderwhacker Mountain Wild Forest (hereinafter Vanderwhacker), which adjoins the Essex Chain Complex — "will be approximately five miles long and will require the cutting of over 7,000 trees" [Memorandum of Law of Christopher A. Amato, Esq., dated July 15, 2019, at p 8]. In support of this contention, petitioners submitted the affidavit of Steve Signell, a forest ecologist, who states that "[f]rom June 14-23, 2016[ he] conducted a count of trees that would be cut to build [this] 5.2 mile section of the new Indian Lake to Minerva trail," and found that "7,122 trees [would] be cut for the trail construction" [Affidavit of Steve Signell, sworn to July 12, 2019, at ¶¶ 4-5]. According to petitioners, the holding in Protect the Adirondacks! establishes that such excessive tree cutting runs afoul of NY Constitution, article XIV, § 1.
In opposition, respondents contend that DEC "has not determined the route for Vanderwhacker and thus any ‘tree count’ along the route ... Signell imagines [DEC] would choose is speculative at best" [Memorandum of Law of Nicholas Buttino, Esq., dated August 27, 2019, at p 3]. Respondents further contend as follows:
"[DEC] has several steps to take before it could finalize a route through Vanderwhacker. To site a trail through Vanderwhacker, the forester (Robert Ripp) would walk the forest several times, hanging temporary flagging as he went. He would then adjust the trails to mark the desired route and consult with the [APA] before finalizing a centerline. Once he finalizes a centerline, he would mark the full trail width, and inventory the trees, mark locations for proposed bench cuts, rock removals, drainage, bridges and create markers using the global positioning system. In addition, tree cutting would not occur until [DEC] provided notice in the Environmental Notice Bulletin" [Memorandum of Law of Nicholas Buttino, Esq., dated August 27, 2019, at pp 3-4].
Respondents have also submitted the affidavit of Ripp, who confirms that "the Indian Lake to Minerva trail that goes through Vanderwhacker [has] only reached the preliminary stage where [he] walked the forest to determine if a trail from the Iron (Polaris) Bridge to Chaisson Road in [the Town of] Newcomb[, Essex County] was possible" [Affidavit of Robert Ripp, sworn to August 27, 2019, at ¶ 9]. Ripp then states that, "[c]ontrary to ... Signell's allegations, without knowing the final trail location, it is impossible to know how many trees would have to be cut to create that trail" [Affidavit of Robert Ripp, sworn to August 27, 2019, at ¶ 10].
Under the circumstances, the Court finds that Protect the Adirondacks! has no impact on this proceeding — at least not at this juncture. Respondents have established that the route which the Indian Lake to Minerva community connector trail will take through Vanderwhacker has not yet been finalized and, as such, petitioners' contention that over 7,000 trees will be cut down to complete the route is speculative (see Matter of Adirondack Wild: Friends of the Forest Preserve v. New York State Adirondack Park Agency , 161 AD3d at 174 ). Moreover, the amended petition fails to raise any constitutional claims whatsoever. When the route through Vanderwhacker has been finalized, any alleged constitutional violations can be addressed at that time.
The Court will now proceed to the issue of whether this proceeding should be stayed pursuant to CPLR 2201 pending a decision from the Court of Appeals in Matter of Adirondack Wild . CPLR 2201 provides that "the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just." " ‘[A] court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources’ " (McCarthy v. Kerrigan , 589 Misc. 3d 872, 885 [Sup. C., St. Lawrence County 2018], quoting Matter of Tenenbaum , 81 AD3d 738, 739 [2011] [internal quotation marks and citation omitted] ). Grounds for a stay include "further[ing] the interest of justice by preventing inequitable results and promot[ing] orderly procedure by furthering the goals of comity and uniformity" ( Concord Assoc., L.P. v. EPT Concord, LLC , 101 AD3d 1574, 1575 [2012] ; see National Mgt. Corp. v. Adolfi , 277 AD2d 553, 555 [2000] ; McCarthy v. Kerrigan , 589 Misc 3d at 885). "Where determination of a related, pending proceeding ‘may dispose of or limit issues involved in [a pending] action,’ a stay is proper" (McCarthy v. Kerrigan , 589 Misc 3d at 885, quoting SSA Holdings, LLC v. Kaplan , 120 AD3d 1111, 1111 [2014] ).
Here, petitioners have submitted a memorandum supporting the issuance a stay. Petitioners contend that if the Court of Appeals reverses the Third Department in Matter of Adirondack Wild — finding no rationale basis for DEC's decision to allow public snowmobile use on the subject portion of Chain Lakes Road (South) — then this "would eliminate the only possible snowmobile access to the Cedar River from the south, creat[ing] a dead-end for snowmobilers traveling from the north, and thereby render[ing the] Cedar River snowmobile trail and bridge project superfluous" [Memorandum of Law of Christopher A. Amato, Esq., dated August 14, 2019, at p 4].
Respondents, on the other hand, have submitted a memorandum opposing the issuance a stay. Respondents contend that "[t]he bridge and trail at issue here are for multiple uses and [DEC] has the authority to build the bridge for non-motorized uses, even if the courts prohibit motorized uses" [Memorandum of Law of Nicholas Buttino, dated August 27, 2019, at pp 1-2]. According to respondents, while "[p]etitioners insist that the purpose of the bridge and the trail is for snowmobiles[,] the record, including the Complex Plan[ ] and [DEC's] sworn affidavits[,] demonstrate that the project is to provide access for hikers, bikers, skiers, equestrians, and snowmobilers, among others" [Memorandum of Law of Nicholas Buttino, dated August 27, 2019, at p 5].
Respondents' point is well taken. The record does in fact include proof that the Cedar River Bridge is intended for use not only by snowmobilers, but also those enjoying non-motorized activities. With that said, however, the record also includes proof that the Cedar River Bridge — which will be roughly 12-feet wide and supported by steel trusses — could be narrower and less protrusive were it not for the need to accommodate snowmobiles. For example, both David H. Gibson — the Managing Partner of Adirondack Wild — and Peter Bauer — the Executive Director of Protect the Adirondacks! Inc. — submitted affidavits outlining the widths of several bridges they have visited throughout the Adirondack Park, none of which are 12 feet wide. Gibson states that "[t]he only recreational trail on the Adirondack Forest Preserve authorized to be built to [9] foot minimum width and 12 feet maximum width is a Class II Community Connector Snowmobile trail" [Reply Affidavit of David H. Gibson, sworn to July 12, 2019, at ¶ 14]. Indeed, with respect to trail width, the 2009 Guidance states as follows:
"1. Class I Trails may be maintained to an 8-foot maximum cleared trail width.
"2. Class II Trails may be maintained to a 9-foot maximum cleared trail width except on sharp curves ... and steep running slopes ... where they may be maintained to a 12-foot maximum cleared trail width" [Administrative Return, Volume 5, at 1124].
While the Administrative Return was submitted in answer to the amended petition, it was readily cited throughout the papers submitted on the motion for a preliminary injunction. Further, respondents expressly "incorporate[d] and refer[red] to [their] March 2019 answering papers" when opposing the motion for a preliminary injunction.
Bauer then states similarly in his affidavit:
"There is no reason that the DEC needs to build a 12-foot wide bridge over the Cedar River. Upon information and belief, the reason for the bridge's width is not to accommodate horses and wagons but to accommodate the large snowmobile trail groomers that operate on class II snowmobile trails. The enormous size of the proposed Cedar River Bridge is designed to accommodate large snowmobile trail groomers that are often in excess of 10 feet in width" [Reply Affidavit of Peter Bauer, sworn to July 12, 2019, at ¶ 4].
Counsel for respondents also conceded during oral argument on the amended petition — and again during oral argument on the TRO — that the Court of Appeals' decision in Matter of Adirondack Wild may have an impact on the issues in this proceeding.
Under the circumstances, the Court finds that this proceeding should be stayed pursuant to CPLR 2201 pending a decision from the Court of Appeals in Matter of Adirondack Wild . This stay will further the interest of justice by ensuring that all relevant facts — including whether snowmobiling is permissible on the portion of the Class II trail immediately south of the proposed Cedar River Bridge — are before this Court when a determination is made, thereby preventing an inequitable result (see Concord Assoc., L.P. v. EPT Concord, LLC , 101 AD3d at 1575 ; National Mgt. Corp. v. Adolfi , 277 AD2d at 555 ; McCarthy v. Kerrigan , 589 Misc 3d at 885). Significantly — and as noted above — a decision is expected from the Court of Appeals shortly and as such, the stay is unlikely to be of any substantial duration.
Having determined that a stay is appropriate, the Court will now proceed to consider petitioners' motion for a preliminary injunction. "To establish entitlement to a preliminary injunction, [petitioners are] required to demonstrate a likelihood of success on the merits, irreparable harm if the injunction is not granted and that the balance of the equities is in [their] favor" ( Sync Realty Group, Inc. v. Rotterdam Ventures, Inc. , 63 AD3d 1429, 1430 [2009] ; see CPLR 6301 ; Nobu Next Door, LLC v. Fine Arts Hous., Inc. , 4 NY3d 839, 840 [2005] ; Emerald Green Prop. Owners Assn., Inc. v. Jada Developers, LLC , 63 AD3d 1396, 1397 [2009] ).
The Court declines to grant petitioners' request that the TRO be continued during the pendency of the stay.
Beginning with the first criteria, "it is not for this court to determine finally the merits of an action upon a motion for preliminary injunction; rather, the purpose of the interlocutory relief is to preserve the [s]tatus quo until a decision is reached on the merits" ( Tucker v. Toia , 54 AD2d 322, 326 [1976] ). To that end, "the showing of a [l]ikelihood of success on the merits required before a preliminary injunction may be ... issued must not be equated with the showing of a [c]ertainty of success" ( Tucker v. Toia , 54 AD2d at 326 ; see Cooperstown Capital, LLC v. Patton , 60 AD3d 1251, 1252-1253 [2009] ). "It is enough if the moving party makes a prima facie showing of his right to relief; the actual proving of [a] case should be left to the full hearing on the merits" ( Tucker v. Toia , 54 AD2d at 326 ). It must also be noted that the moving party need not demonstrate a likelihood of success with respect to all causes of action (see e.g. Butt v. Malik , 106 AD3d 849, 850 [2013] ).
For purposes of this analysis, the Court will focus on petitioners' second and fourth causes of action, both of which allege violations of the Rivers System Act. By way of background, the Rivers System Act was enacted because "many rivers of the state, with their immediate environs, possess outstanding natural, scenic, historic, ecological and recreational values" ( ECL 15-2701 [1] ). The Legislature found that "[i]mprovident development and use of these rivers and their immediate environs [would] deprive present and future generations of the benefit and enjoyment of [their] unique and valuable resources" ( ECL 15-2701 [2] ), and "declared [it] the policy of this state that certain selected rivers [would] be preserved in free-flowing condition and ... their immediate environs ... protected for the benefit and enjoyment of present and future generations" ( ECL 15-2701 [3] ).
Under the Rivers System Act, only the Legislature can designate a river as wild, scenic, or recreational (see ECL 15-2709 [2] ). Once such designation is made, "no dam or other structure or improvement impeding the natural flow thereof shall be constructed on such river except as expressly authorized" in the statute ( ECL 15-2709 [2] ). To that end, the Rivers System Act provides as follows:
"[E]xisting land uses within the respective classified river areas may continue, but may not be altered or expanded except as permitted by the respective classifications, unless the commissioner or agency orders the discontinuance of such existing land use.... The following land uses shall be allowed or prohibited within the exterior boundaries of designated river areas depending on the classification of such areas:
"a. In wild river areas, no new structures or improvements, no development of any kind and no access by motor vehicles shall be permitted other than forest management pursuant to forest management standards duly promulgated by regulations.
"b. In scenic river areas, the continuation of present agricultural practices, the propagation of crops, forest management pursuant to forest management standards duly promulgated by regulations, limited dispersed or cluster residential developments and stream improvement structures for fishery management purposes shall be permitted. There shall be no mining, excavation, or construction of roads, except private roads necessary for residential, agricultural or forest management purposes, and with the further exception that public access through new road construction may be allowed, provided that there is no other such access within two land miles in either direction.
"c. In recreational river areas, the lands may be developed for the full range of agricultural uses, forest management pursuant to forest management standards duly promulgated by regulations, stream improvement structures for fishery management purposes, and may include small communities as well as dispersed or cluster residential developments and public recreational areas. In addition, these river areas may be readily accessible by roads or railroads on one or both banks of the river, and may also have several bridge crossing and numerous river access points" ( ECL 15-2709 [2] ).
The Legislature directed DEC's Commissioner "to make and enforce regulations necessary for the management, protection, and enhancement of and control of land use and development in the wild, scenic and recreational river areas" (ELC 15-2709 [1] ), which regulations are embodied in 6 NYCRR part 666. Specifically, 6 NYCRR 666.8 establishes "[t]he procedures and schedules for applications of rivers system permits" [ 6 NYCRR 666.8 [a] ). It provides, in pertinent part:
"Before a river system permit is issued, it must first be determined that:
"(1) the proposed land use or development is consistent with the purposes and policies of the act and with the provisions of this [p]art;
"(2) the resources specified in section 666.2 (e) of this [p]art will be protected and the proposed activity will not have an undue adverse environmental impact;
"(3) no reasonable alternative exists for modifying or locating the proposed activity outside of the designated river area; and
"(4) actions proposed to be undertaken by State agencies are designed to preserve, protect or enhance the resources and values of designated rivers" ( 6 NYCRR 666.8 [f] ).
6 NYCRR 666.9 then establishes procedures for the issuance of a variance under the Rivers System Act. Pursuant to 6 NYCRR 666.9 (a), "upon receipt of a written request made in conjunction with a permit application ... [DEC] may vary or modify any provision of relating to allowable land uses or development so long as it is the minimum variance necessary." 6 NYCRR 666.9 (a) further provides that "[n]o variance may authorize any development or improvement prohibited by the [Rivers System Act]." Insofar as area variances are concerned, 6 NYCRR 666.9 (a) (2) states, in pertinent part:
"In making its determination, [DEC] will consider the benefit to the applicant if the variance is granted, as weighed against the adverse impacts upon river resources. [DEC] will also consider:
"(i) whether and to what extent a change will be produced in the character of the river corridor or a detriment to nearby properties will be created by the granting of the area variance;
"(ii) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
"(iii) whether the requested area variance is substantial; [and]
"(iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the river corridor ....
Finally, "in the case of applicants which are State agencies or municipal corporations, the granting of a variance must be equally as environmentally protective of the river values identified in [ 6 NYCRR 666.2 (e) ] as compliance with the provision(s) to be varied and must fulfill a public health, safety or welfare function" ( 6 NYCRR 666.9 [a] [3] ).
6 NYCRR 666.2 (e) provides that DEC "shall give primary emphasis to the protection and enhancement of the natural, scenic, ecological, recreational, aesthetic, botanical, geological, hydrological, fish and wildlife, historical, cultural, archaeological and scientific features of designated rivers and river areas."
The second and fourth causes of action allege that DEC failed to consider all of the factors set forth in 6 NYCRR 666.8 (f) and 6 NYCRR 666.9 (a), respectively, before issuing the permits and variance. With that said, if the Court of Appeals finds that public snowmobile use is not permitted on the portion of the Class II community connector trail immediately south of the proposed Cedar River Bridge, then a 12-foot wide bridge supported by steel trusses may no longer be necessary. The factors set forth in 6 NYCRR 666.8 (f) and 6 NYCRR 666.9 (a) may need to be revisited. Indeed, as set forth above, under 6 NYCRR 666.8 (f) (3) and (4), before a river system permit is issued it must first be determined that "no reasonable alternative exists" and that the "actions proposed ... are designed to preserve, protect or enhance the resources and values of designated rivers." Similarly, under 6 NYCRR 666.9 (a), a variance may be issued in conjunction with a permit only if "it is the minimum variance necessary." In view of the foregoing, petitioners have made a prima facie showing of their right to relief and, as such, the Court finds that the first criteria necessary for issuance of a preliminary injunction has been satisfied (see Tucker v. Toia , 54 AD2d at 326 ). The Court finds it unnecessary to delve into the merits of petitioners' remaining causes of action.
Turning now to the second criteria, the Court previously found as follows upon granting the TRO:
"[T]here is no question that immediate and irreparable damage will result if respondents are permitted to proceed with site preparation for the Cedar River [B]ridge. Trees will be cut down and vegetation removed in a scenic river corridor — precisely what petitioners sought to prevent in filing the petition" [Addendum to Order to Show Cause dated June 14, 2019].
The Court deems these findings equally applicable at this juncture. Respondents contend that petitioners will not suffer irreparable harm because they "ostensibly do not object to construction of a bridge for non-motorized use, which would [also] require site preparation" [Memorandum of Law of Nicholas Buttino, Esq., dated July 3, 2019, at p 14]. The Court, however, is not persuaded. Petitioners have established that a bridge for non-motorized use could be narrower than the bridge now proposed and may not require steel trusses. Such changes would certainly influence the required site preparation.
Finally, the Court finds that the balance of the equities is in petitioners' favor. If construction on the proposed Cedar River Bridge had started in June 2019 — as planned — the project was to be substantially completed in July 2020. As such, there are no immediate consequences for respondents — the bridge would not be available for use during the 2019-2020 snowmobiling season in any event. Further, while respondents have submitted a joint affidavit of the Supervisors of the Towns of Indian Lake, Long Lake, Newcomb, Minerva and North Hudson, who collectively state that their municipalities will be negatively impacted by the delay in construction, the alleged negative impacts are simply too speculative. As noted by petitioners, there already exist several trails in these localities which outdoor enthusiasts can enjoy throughout the year. In sharp contrast, there will be actual and immediate impacts upon the Cedar River corridor if site preparation and construction are permitted to begin on the proposed bridge.
With all three criteria having been satisfied, petitioners' motion for a preliminary injunction is granted and respondents, their employees, agents, contractors, and representatives are preliminarily enjoined from undertaking any construction, tree removal, grading, filling, drilling, disturbing the bed or banks, or any other site preparation activities, including the operation of motor vehicles, for the purpose of constructing the proposed Cedar River Bridge and recreational trail. This preliminary injunction shall continue until a final determination is rendered in this proceeding.
CPLR 6312 (b) provides, in pertinent part:
"[P]rior to the granting of a preliminary injunction, the [petitioner] shall give an undertaking in an amount to be fixed by the court, that the [petitioner], if it is finally determined that he or she was not entitled to an injunction, will pay to the [respondent] all damages and costs which may be sustained by reason of the injunction."
Here, respondents contend that petitioners should be required to post an undertaking in the amount of $122,600.00, which amount "represents the low end of the estimates for annual economic impacts on local communities ($66,840.45), the annual economic benefits to users ($45,085.77), and 10% of [DEC's] $106,837[.00] design costs [for the Cedar River Bridge]" [Memorandum of Law of Nicholas Buttino, Esq., dated July 3, 2019, at pp 24-25]. Petitioners, on the other hand, contend that they should be required to post only a nominal undertaking of one dollar. Petitioners contend that "neither the local communities nor recreational users from the general public are parties to this proceeding [and, as such,] any purported economic impacts to these two groups cannot be considered in setting the bond amount" [Memorandum of Law of Christopher A. Amato, Esq., dated July 15, 2019, at p 9]. Petitioners further contend that respondents should not be reimbursed for 10% of DEC's design costs because "any economic harm suffered by [DEC] was entirely self-inflicted" [Memorandum of Law of Christopher A. Amato, Esq., dated July 15, 2019, at p 10].
Respondents have submitted, inter alia , the affidavit of Nancy L. Allen, a principal economist with the Office fo General Counsel, in support of these figures.
The Court agrees that respondents have pushed forward with the Cedar River Bridge notwithstanding the ongoing litigation in this and other courts, and with full knowledge that an injunction could be issued with respect to the project. Indeed, the Court has been puzzled by this approach since the commencement of this proceeding. The Court further agrees that the amount of an undertaking " ‘should be rationally related to the potential damages’ that [a respondent] could recover if an injunction is ultimately deemed unwarranted" — not a non-party to the proceeding ( Cooperstown Capital, LLC v. Patton , 60 AD3d at 1253, quoting Bonded Concrete, Inc. v. Town of Saugerties , 42 AD3d 852, 854-855 [2007] ; see Livas v. Mitzner , 303 AD2d 381, 383 [2003] ). If this injunction is ultimately deemed unwarranted, the record is wholly unclear as to what — if any — damages respondents would be entitled to recover. Indeed, respondents would need to pay to design the bridge in any event and it does not appear that any payments have been made for site preparation or construction to date. Under the circumstances, any potential damages are speculative and the Court will therefore impose a nominal undertaking of $500.00, which amount should be sufficient to cover any costs incurred by respondents in connection with the injunction (see Daytop Vil. v. Consolidated Edison Co. of NY , 61 AD2d 933, 934 [1978] ; Matter of Village of S. Blooming Grove v. Village of Kiryas Joel Bd. of Trustees , 49 Misc 3d 1212[A], *5 [Sup Ct, Orange County 2015] ). The Court does not anticipate that the preliminary injunction will be in place for an extended period of time in any event.
Based upon the foregoing, this proceeding is hereby stayed pending the issuance of a decision by the Court of Appeals in Matter of Adirondack Wild . Counsel for the parties shall promptly advise this Court upon the issuance of that decision. This Court will then proceed with the issuance of its final determination. The preliminary injunction shall remain in place pending the issuance of that final determination, with petitioners directed to file an undertaking in the amount of $500.00 within ten (10) days of the date of this Decision and Order.
Therefore, having considered the Affirmation of Christopher A. Amato, Esq. with exhibits attached thereto, dated June 11, 2019, submitted in support of the motion; Affidavit of Richard C. Smardon, Ph.D. with exhibits attached thereto, sworn to April 22, 2019, submitted in support of the motion; Affidavit of David H. Gibson with exhibit attached thereto, sworn to June 7, 2019, submitted in support of the motion; Affidavit of Peter Bauer, sworn to June 7, 2019, submitted in support of the motion; Memorandum of Law of Christopher A. Amato, Esq., dated June 12, 2019, submitted in support of the motion; Affirmation of Nicholas C. Buttino, Esq. with exhibit attached thereto, dated July 2, 2019, submitted in opposition to the motion; Affidavit of Nancy L. Allen with exhibits attached thereto, sworn to July 3, 2019, submitted in opposition to the motion; Affidavit of Peter J. Frank, sworn to July 3, 2019, submitted in opposition to the motion; Joint Affidavit of Brian Wells, Clark Seaman, Robin DeLoria, Steve McNally and Stephanie DeZalia, sworn to June 26, 2019, submitted in opposition to the motion; Affidavit of Muhammad Ahmad, sworn to June 26, 2019, submitted in opposition to the motion; Memorandum of Law of Nicholas Buttino, Esq., dated July 3, 2019, submitted in opposition to the motion; Reply Affirmation of Christopher A. Amato, Esq. with exhibits attached thereto, dated July 12, 2019, submitted in further support of the motion; Reply Affidavit of David H. Gibson, sworn to July 12, 2019, submitted in further support of the motion; Reply Affidavit of Peter Bauer with exhibit attached thereto, sworn to July 12, 2019, submitted in further support of the motion; Affidavit of Steve Signell with exhibits attached thereto, sworn to July 12, 2019, submitted in further support of the motion; Memorandum of Law of Christopher A. Amato, Esq., dated July 15, 2019, submitted in further support of the motion; Memorandum of Law of Christopher A. Amato, Esq., dated August 14, 2019, submitted in support of the stay; Memorandum of Law of Nicholas Buttino, Esq., dated August 27, 2019, submitted in opposition to the stay; and Affidavit of Robert Ripp, sworn to August 27, 2019, submitted in opposition to the stay, it is hereby
ORDERED that this proceeding is stayed pending the issuance of a decision from the Court of Appeals in Matter of Adirondack Wild , with counsel for the parties hereby directed to promptly advise this Court upon the issuance of that decision; and it is further
ORDERED that petitioners' motion for a preliminary injunction is granted and respondents, their employees, agents, contractors, and representatives are preliminarily enjoined from undertaking any construction, tree removal, grading, filling, drilling, disturbing the bed or banks, or any other site preparation activities, including the operation of motor vehicles, for the purpose of constructing the proposed Cedar River Bridge and recreational trail; and it is further
ORDERED that this preliminary injunction shall continue until a final determination is rendered in this proceeding; and it is further
ORDERED that petitioners shall file an undertaking in the amount of $500.00 within ten (10) days of the date of this Decision and Order.
The original of this Decision and Order has been filed by the Court together with the submissions enumerated above. Counsel for petitioners is hereby directed to obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.
Dated: October 8, 2019
Lake George, New York
_______s/________________________
ROBERT J. MULLER, J.S.C.
ENTER: