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Catskill Trailhead Parking Coordinates πŸ…ΏοΈ πŸ” πŸ‘£

Below is a listing of DEC parking areas in the Catskill Park with coordinates and addresses, nearby trails and the roads they are located on.

Trailhead Parking Lot Sign

TrailRoadNameNotesStreetCityStZIPLatitudeLongitude
Ashokan High PointWatson Hollow RoadKanape Valley Parking Lot 826 Watson Hollow RdWest ShokanNY1249441.9357923141228-74.3281141901214
Beaverkill RoadBeaverkill RoadBeaverkill Road Parking Lot 2795 Beaverkill RdLivingston ManorNY1275842.0117166110155-74.6223767934834
Beaverkill RoadTurnwood RoadBeaverkill Road Parking Lot 2952 Beaverkill RdLivingston ManorNY1275842.0233290355646-74.5995306115641
Becker Hollow TrailLane RoadBecker Hollow Parking Lot6 Vehicle Capacity3940 Route 214Elka ParkNY1242742.1816084527769-74.1969812784753
Bengle Hill TrailPeekamoose RoadEastern Upper Field Parking Lot 359 Peekamoose RdGrahamsvilleNY1274041.9166423616552-74.4377863112221
Bengle Hill TrailPeekamoose RoadLower Field Parking Lot 194 Peekamoose RdGrahamsvilleNY1274041.9101942400042-74.452852499381
Bengle Hill TrailPeekamoose RoadMiddle Field Parking Lot 304 Peekamoose RdGrahamsvilleNY1274041.9158997405029-74.443422031256
Bengle Hill TrailPeekamoose RoadNorth Middle Field Parking Lot 304 Peekamoose RdGrahamsvilleNY1274041.9164180048779-74.4416441135141
Bengle Hill TrailPeekamoose RoadTrailer Feild Parking Lot 359 Peekamoose RdGrahamsvilleNY1274041.9162603251141-74.4346555497984
Bengle Hill TrailPeekamoose RoadWestern Upper Field 359 Peekamoose RdGrahamsvilleNY1274041.9169982073948-74.4396463051141
Big Pond – Alder LakeBarkaboom RoadBarkaboom Road Parking LotLocated On Barkaboom Road, 6 Cars288 Barkaboom RdAndesNY1373142.0426860004001-74.7267519998891
Big Pond – Alder LakeCross Mountain RoadAlder Lake Parking Lot 2 Cross Mountain RdLivingston ManorNY1275842.0497953211373-74.6827571604492
Black Dome TrailBig Hollow RoadBig Hollow Road Parking Lot7 Vehicle Capacity947 Route 56MaplecrestNY1245442.2889033425096-74.1151262941519
Campbell Mountain TrailCat Hollow RoadRoute 206 Parking Lot5 Vehicle Capacity1611 County Road 7RoscoeNY1277642.051659649187-74.9147231839428
Cic – Esopus TrailState Route 28Parking Area For Esopus Creek Fishing AccessParking Area For Esopus Creek Fishing Access – Cic5067 Route 28Mount TremperNY1245742.0254799892217-74.2717292519349
Cic Hill TrailWittenberg RoadWittenberg Road Parking Lot 1298 Wittenberg RdMount TremperNY1245742.0279684988885-74.2620571929729
Colgate Lake Trail To Dutcher NotchColgate RoadColgate Lake Lower Parking Lot50 Vehicle Capacity525 Colgate RdEast JewettNY1242442.2384696568264-74.1233979344461
Colgate Lake Trail To Dutcher NotchColgate RoadColgate Lake Parking Lot2 Vehicle Capacity524 Colgate RdEast JewettNY1242442.2385040003097-74.1206960003026
Colgate Lake Trail To Dutcher NotchColgate RoadColgate Lake Trail Parking Lot8 Vehicle Capacity653 Colgate RdEast JewettNY1242442.2384599994304-74.1163269993959
Condon Hollow Rd.Condon Hollow RoadCondon Hollow Road Parking Lot3 Vehicle Capacity139 Condon Hollow RdWest KillNY1249242.2161010059593-74.4163349850283
Condon Hollow Rd.Elk Creek RoadElk Creek Road Parking Lot5 Vehicle Capacity734 Elk Creek RdFleischmannsNY1243042.1996047835286-74.4451315908425
Condon Hollow Rd.South Beech Ridge RoadBeech Road Parking Lot4 Vehicle Capacity291 S Beech Ridge RdWest KillNY1249242.2139020709257-74.4012095700882
Condon Hollow Rd.State Highway 42Rte 42 Parking Lot3 Vehicle Capacity1088 Route 42ShandakenNY1248042.1851525975488-74.4149115068685
Denman Mountain Snowmobile TrailGlade Hill RoadDenman Parking Lot 327 Glade Hill RdGrahamsvilleNY1274041.8853341886314-74.5320280123605
Denman Mountain Snowmobile TrailMoore Hill RoadHogs Roack Plot Parking Lot 578 Alpha RdGrahamsvilleNY1274041.9003387815796-74.5274487605523
Devil’s PathBroadstreet Hollow RoadBroadstreer Hollow Parking Lot2 Vehicle Capacity619 Broadstreet Hollow RdShandakenNY1248042.1394450770105-74.3308357356817
Devil’s PathSpruceton RoadSpruceton Road Parking Lot5 Vehicle Capacity1518 Spruceton RdWest KillNY1249242.1920191641918-74.3238474073796
Devil’s PathPrediger RoadPrediger Road 75 Prediger RdElka ParkNY1242742.1338909995054-74.1042720006852
Diamond Notch TrailDiamond Notch RoadSouth Diamond Notch Parking Lot2 Vehicle Capacity508 Diamond Notch RdWest KillNY1249242.147861770123-74.2646596008456
Diamond Notch TrailSpruceton RoadDiamond Notch Parking Lot8 Vehicle Capacity2778 Spruceton RdWest KillNY1249242.1823740001994-74.2695430002389
Dry Brook Ridge TrailMill Brook RoadDry Brook Ridge Parking Lot 12 Balsam Mountain Camp RdMargaretvilleNY1245542.0715022570921-74.5738756337513
Dry Brook Ridge TrailSouth Side SpurNorth End Of Dry Brook Ridge Parking Lot 301 Southside SpurMargaretvilleNY1245542.1446292458628-74.649333317932
Elm Ridge TrailPeck RoadPeck Road Parking Lot10 Vehicle Capacity189 Peck RdMaplecrestNY1245442.2965789997488-74.1693680002929
Fluggertown Road Long Pond TrailFluggertown RoadFlugertown Road Parking Lot 191 Flugertown RdLivingston ManorNY1275841.9347657909639-74.649696950272
Flynn TrailMongaup RoadMongaup Road Parking Lot 1 Beech Mountain RdLivingston ManorNY1275841.9467974587868-74.7052771774711
Giant Ledge-Panther Mountian-Fox Hollow TrailFox Hollow RoadFox Hollow Road Parking Lot 67 Mountain DrShandakenNY1248042.1008382907335-74.3904559601097
Giant Ledge-Panther Mountian-Fox Hollow TrailPeck Hollow RoadPeck Hollow Road Parking Lot 254 Peck Hollow RdShandakenNY1248042.1357649784827-74.3712920364471
Giant Ledge-Panther Mountian-Fox Hollow TrailPeck Hollow RoadEsopus Creek Fishing Access (Upper)Gravel7019 Route 28PheoniciaNY1246442.1065553340012-74.3519924442835
Giggle Hollow TrailNY 23 – BelleayrBelleayre Day Use Parking Lot 33 Friendship Manor RdPine HillNY1246542.1256810090987-74.4731178408634
Harding Road Spur TrailWhites RoadWhites Road Parking Lot4 Vehicle Capacity274 White RdPalenvilleNY1246342.1823951680298-74.0261906353256
Harding Road TrailHarding RoadHarding Road Parking Lot5 Vehicle Capacity3525 Route 23APalenvilleNY1246342.1762358120255-74.0304949714876
Huckleberry North TrailHill RoadHill Road Parking Lot4 Vehicle Capacity1209 Hill RdMargaretvilleNY1245542.1166129796449-74.6486105632054
Huckleberry North TrailHuckleberry Brook Spur RoadHuckleberry Brook Road Parking Lot6 Vehicle Capacity1613 Huckleberry Brook RdMargaretvilleNY1245542.1130238724914-74.6515523618233
Huckleberry South TrailHuckleberry Brook Spur RoadHuckleberry Road Parking Lot5 Vehicle Capacity1073 Huckleberry Brook RdMargaretvilleNY1245542.1152546105706-74.6636037740616
Huckleberry South TrailHull RoadPloutz Road4 Vehicle Capacity1634 Ploutz RdMargaretvilleNY1245542.0938719675255-74.6204457323272
Huggins Lake TrailBerry Brook RoadHuggins Lake Road Parking Lot4 Vehicle Capacity2414 Holiday And Berry Brook RdRoscoeNY1277642.0157959909969-74.8436914198853
Jockey Hill Bicycle TrailWood RoadWood Road Parking Lot 334 Woods RdKingstonNY1240141.9777439980953-74.0501113306995
Kaaterskill Falls TrailState Highway 23aMolly Smith Parking LotDot Facility, 20 Vehicles4729 Route 23AElka ParkNY1242742.1898508772368-74.074111945438
Kaaterskill Rail TrailLaurel House RdLaurel House Rd 103 Laurel House RdTannersvilleNY1248542.1956250050266-74.063093393786
Kelly Hollow Long Loop TrailMill Brook RoadEast Kelly Hollow Parking Lot 5163 Mill Brook RdMargaretvilleNY1245542.078800277463-74.6497556922038
Kelly Hollow Long Loop TrailMill Brook RoadWest Kelly Hollow Parking Lot 5163 Mill Brook RdMargaretvilleNY1245542.0795848697519-74.6545040693769
Long PathSteenburg RoadSteenburgh Road 2425 Platte Clove RdElka ParkNY1242742.1337889994516-74.0819709994867
Long PathRoute 23Route 23 Parking Lot20 Vehicle Capacity3 Cross RdWindhamNY1249642.312706999584-74.1904309994766
Long Pond South LoopWillowemock RoadWild Meadow Road Parking Lot 136 Round Pond RdClaryvilleNY1272541.9435338737706-74.5864488816452
Lost Clove TrailLost Clove RoadLost Clove Parking Lot 343 Lost Clove RdBig IndianNY1241042.1054379266455-74.4700849794812
Mary Smith TrailHolliday Brook RoadHoliday And Berry Brook Road Parking Lot5 Vehicle Capacity3851 Holiday And Berry Brook RdRoscoeNY1277642.0386999995498-74.8473909994493
Mckinley Hollow TrailMc Kinley Hollow RoadMckinly Hollow Parking Lot 200 McKinley Hollow RdBig IndianNY1241042.0704132895809-74.4740296153462
Mckinley Hollow TrailRider Hollow RoadRider Hollow Parking Lot 12 Warren Todd Subdivision DrArkvilleNY1240642.1018368545182-74.5170339246663
Mckinley Hollow TrailBurnham Hollow RoadBurnham Hollow Parking Lot 17 Sagmore TrlBig IndianNY1241042.05564157218-74.4669789486585
Middle Mountain TrailMary Smith Hill RoadMary Smith Hill Road Parking Lot3 Vehicle Capacity865 Mary Smith Hill RdAndesNY1373142.0401290003224-74.8089319993063
Mink Hollow TrailMink Hollow RoadLake Hill 599 Mink Hollow RdBearsvilleNY1244842.1051314008054-74.1735651990356
Mount Pleasant-Romer MountainState Highway 28Sawmill Lot50×50 Parking Area – Trailless6331 Route 28PhoeniciaNY1246442.1008585056075-74.3445327399439
Mud Pond TrailCounty Road 179aOld Rte 17 Fishing Access6 Vehicle Capacity6175 State Route 17 WRoscoeNY1277641.9497668355721-74.9281906252666
Mud Pond TrailHorton Brook RoadLittle Fuller Brook Parking Lot6 Vehicle Capacity845 Horton Brook RdRoscoeNY1277642.0159481159029-74.9790550095988
Onteora Lake Parking AccessState Highway 28Onteora Lake Trailhead Upper Lot 881 Route 28KingstonNY1240141.9807660434687-74.0853059041223
Onteora Lake Yellow TralNY 23Onteora Lake Parking 960 Route 28KingstonNY1240141.9840941553893-74.0827910535657
Overlook Spur Trail ExtensionMacdaniiel RoadMeads Meadow Parking Area 452 MacDaniel RdBearsvilleNY1240942.0756312690235-74.1276188121255
Overlook TrailMeads Mountain RoadOverlook Mountain Trailhead 334 Meads Mountain RdWoodstockNY1249842.0710794980857-74.1224765106456
Peekamoose-Table TrailPeekamoose RoadPeekamoose Road Parking Lot 415 Peekamoose RdGrahamsvilleNY1274041.9233895882109-74.4128616227944
Peekamoose-Table TrailPeekamoose RoadPeekamose Mountian Trail Head Parking Lot 415 Peekamoose RdGrahamsvilleNY1274041.9149365156904-74.4289858455429
Pelnor Hollow TrailBeaver Kill RoadWaneta Lake Parking Lot 732 Beaverkill RdLivingston ManorNY1275841.9676202925977-74.8292314401778
Phoenicia East Branch TrailDenning RoadDenning Road Parking Lot 3381 Denning RdClaryvilleNY1272541.9690314347788-74.4486958819482
Phoenicia East Branch TrailOliverea-Slide Mountain RoadOliverea Road North Parking Lot 1453 Oliverea RdBig IndianNY1241042.0265659167754-74.4038665935078
Phoenicia East Branch TrailOliverea-Slide Mountain RoadOliverea Road South Parking Lot 19 Shandaken Rod Gun ClbBig IndianNY1241042.0078280894865-74.4268762683237
Phoenicia TrailPlank RoadTremper Mountain Parking AreaGravel Lot5636 Route 28PhoeniciaNY1246442.0705625579484-74.3024012416267
Pine Hill West Branch TrailWest Branch RoadBiscuit Brook Parking Lot 1886 Frost Valley RdClaryvilleNY1272541.990833872737-74.4845571593918
PowerlineBeech Ridge Road 1Vinegar Hill Parking Area 1060 N Beech Ridge RdPrattsvilleNY1246842.2449000123037-74.4075985539776
Red Hill Fire Tower TrailRed Hill RoadRed Hill Fire Tower Parking Lot 129 Coons RdClaryvilleNY1272541.9302938486155-74.5073498606472
Roaring Kill TrailDale LaneRoaring Kill6 Vehicle Capacity155 Roaring Kill RdElka ParkNY1242742.1511360000949-74.1310779997324
Rochester HollowShaft RoadShaft 6 Parking20 Vehicle Capacity73 Shaft RdShandakenNY1248042.166173156258-74.4083342114093
Rochester HollowSpisak WayRochester Hollow Parking Lot 51 Matyas RdBig IndianNY1241042.1179698674129-74.4517651458059
Seager Big Indian TrailDry Brook RoadSeager Parking Lot 5672 Dry Brook RdArkvilleNY1240642.0578836653667-74.5396998623234
Spencer RoadTrails End RoadTrails End Parking Lot 197 Trails End RdKerhonksonNY1244641.8835868385135-74.3594081701432
Spruceton TrailSpruceton RoadSpruceton Trail Parking Lot20 Vehicle Capacity2628 Spruceton RdWest KillNY1249242.1846329998217-74.2719879999707
Touch-Me-Not-TrailBarkaboom RoadBig Pond Parking LotLocated Off Barkaboom Road, 6 Cars366 Barkaboom RdAndesNY1373142.0433679998314-74.7277000006876
Touch-Me-Not-TrailBeech Hill RoadBeech Hill Road Parking Lot3 Vehicle Capacity2054 Beech Hill RdAndesNY1373142.0506230001697-74.7789470006467
Touch-Me-Not-TrailDeerlick Brook RoadDeerlick Road Parking Lot3 Vehicle Capacity1553 Deerlick Brook RdAndesNY1373142.0814567992576-74.7365160981546
Touch-Me-Not-TrailBarkaboom RoadForest Preserve Access ParkingEast Of Barkaboom Road 3 Cars1954 Barkaboom RdAndesNY1373142.0655363440977-74.7284401046935
Trout Pond Access RouteRussell Brook RoadRussell Brook Road Parking Lot10 Vehicle Capacity4348 Russell Brook RdRoscoeNY1277641.9943949997582-74.941432999876
Trout Pond TrailCampbell Brook RoadCampbell Brook Road Parking Lot 4747 Campbell Brook RdDownsvilleNY1375542.0306374772623-74.9384473452279
Trout Pond TrailCampbell Mountain RoadCampbell Mountain Road Parking Lot5 Vehicle Capacity3693 Campbell Mountain RdDownsvilleNY1375542.0433291750688-74.9358959381363
Vernooy Kill Falls Snowmobile TrailDymond RoadDymond Road Parking Lot 498 Yeagerville RdNapanochNY1245841.8792625226568-74.4012606035291
Vernooy Kill Falls Snowmobile TrailUpper Cherrytown RoadUpper Cherry Town Road Trail Head Parking Lot 559 Upper Cherrytown RdKerhonksonNY1244641.8643822024537-74.3454535201223
Willow TrailAbbey RoadMount Toblas Parking Lot 439 Abbey RdMount TremperNY1245742.0537752508176-74.2306894602594
Willow TrailJessup RoadWillow Trailhead Parking6 Vehicle Capacity218 Jessop RdWillowNY1249542.078213053797-74.2442314353898

Laws and Case Law

Highway Law Section 115-A:
Abandonment of County Highways.

Whenever a county road or part thereof constructed as part of the county road system deviates from the line of an existing town highway, or from the line of a former town highway within the limits of an incorporated village, as shown on the map of the county road system, the board of supervisors by resolution duly adopted upon the recommendation of the county superintendent of highways, and pursuant to a written agreement with the town board or village board of trustees, or in the event such an agreement cannot be reached with the approval of the commissioner of transportation, may abandon to the town or the incorporated village as the case may be for future maintenance, that part of the town highway or former town highway within the limits of an incorporated village not improved and modify the map of the county road system accordingly. The portion of any town highway or former town highway within the limits of an incorporated village excluded from the county road system shall be maintained by the town or village in which it is located.

Warning! Road Washed Out

Highway Law Section 205:
Highways Abandoned By Local Governments.

1. Every highway that shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public, or laid out, shall cease to be a highway; but the period during which any action or proceeding shall have been, or shall be pending in regard to any such highway, shall form no part of such six years; and every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway, and every public right of way that shall not have been used for said period shall be deemed abandoned as a right-of-way. The town superintendent with the written consent of a majority of the town board shall file, and cause to be recorded in the town clerk’s office of the town a written description, signed by him, and by said town board of each highway and public right-of-way so abandoned, and the same shall thereupon be discontinued.

2. There may also be a qualified abandonment of a highway under the following conditions and for the following purposes, to wit: Where it appears to the town superintendent and said town board, at any time, that a highway has not become wholly disused as aforesaid, but that it has not for two years next previous thereto, been usually traveled along the greater part thereof, by more than two vehicles daily, in addition to pedestrians and persons on horseback, and it shall also appear to the superintendent of highways of the county in which such town is situate that a qualified abandonment of such highway is proper and will not cause injustice or hardship to the owner or occupant of any lands adjoining such highway after such superintendent shall have held a public hearing thereon upon giving at least twenty days’ written notice to such owners and occupants of such lands of the time and place of such hearing, they shall file and cause to be recorded in the town clerk’s office a certificate containing a description of that portion of the highway partly disused as aforesaid and declaring a qualified abandonment thereof. The effect of such qualified abandonment, with respect to the portion of said highway described in the certificate, shall be as follows: It shall no longer be worked at the public expense; it shall not cease to be a highway for purposes of the public easement, by reason of such suspension of work thereon; no persons shall impair its use as a highway nor obstruct it, except as hereinafter provided, but no persons shall be required to keep any part of it in repair; wherever an owner or lessee of adjoining lands has the right to possession of other lands wholly or partly on the directly opposite side of the highway therefrom, he may construct and maintain across said highway a fence at each end of the area of highway which adjoins both of said opposite pieces of land, provided that each said cross fence must have a gate in the middle thereof at least ten feet in length, which gate must at all times be kept unlocked and supplied with a sufficient hasp or latch for keeping the same closed; all persons owning or using opposite lands, connected by such gates and fences, may use the portion of highway thus enclosed for pasturage; any traveler or other person who intentionally, or by wilful neglect, leaves such gate unlatched, shall be guilty of a misdemeanor, and the fact of leaving it unlatched shall be prima facie evidence of such intent or wilful neglect. Excepting as herein abrogated, all other general laws relating to highways shall apply to such partially abandoned highway. This section shall not apply to highways less than two rods in width unless it shall appear to the town superintendent at any time that such a highway has not, during the months of June to September inclusive of the two years next previous thereto, been usually traveled along the greater part thereof by more than ten pedestrians daily.

Any action or proceeding involving the abandonment or qualified abandonment of a highway made pursuant to this section must, in the case of abandonment, be commenced within one year from the date of filing by the town superintendent as provided in subdivision one of this section.

Old NY 30 Signs

Matter of Smigel v. Town of Rennselaer.

As seen on Google Scholar.

MATTER OF SMIGEL v. TOWN OF RENSSELAERVILLE

283 A.D.2d 863 (2001)

725 N.Y.S.2d 138

In the Matter of HENRIETTA SMIGEL, Respondent, v.
TOWN OF RENSSELAERVILLE et al., Appellants.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided May 24, 2001.

Mercure, J. P., Peters, Spain and Carpinello, JJ., concur. Lahtinen, J.

Petitioner is the owner of land bordering the Camp Winsocki Road (hereinafter the road) located in respondent Town of Rensselaerville in Albany County, having acquired title to the property in 1986. In December 1995, petitioner requested that respondents abandon a portion of the road which she had barricaded at both ends in 1986, and which respondent Town Supervisor admitted had not been maintained by respondents for at least 20 years. Her request was continued for further study by the Town Board of the Town of Rensselaerville. In October 1999, petitioner and another petitioned respondents “to abandon a portion of its present easement to [the road].” In January 2000, after a public hearing, respondents refused to abandon the road and passed a resolution finding that the road had not been abandoned through disuse, ordering petitioner to remove all of her barricades, and making the road a seasonal road to be maintained from April 1 to December 1.

In January 2000, petitioner commenced this combined CPLR article 78 proceeding and action for declaratory judgment seeking a judgment clearing her title “as to the portion of her property previously subjected to an easement for the highway,” injunctive relief prohibiting respondents from removing her barriers on the road and trespassing on her property and an order directing respondents to file a certification of abandonment. Respondents answered, asserting that the petition/ complaint failed to state a cause of action.

The parties submitted numerous affidavits and documentary evidence in support of their respective positions and, in April 2000, Supreme Court determined that because no photographs had been submitted by either party, the matter could not be summarily decided, and it therefore set a hearing date to determine whether recreational travel “follows the `lines of the ancient street.'” When the parties appeared on the scheduled hearing date, they were informed that the hearing had been canceled and were directed to leave any photographs that they had with the court for review. Both parties submitted photographs depicting the present condition of the road.* On May 26, 2000, Supreme Court granted the petition/complaint and declared the road to be abandoned. Respondents appeal and we reverse.

Highway Law § 205 (1) provides, in relevant part, that “every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway.” Once a highway exists, it is presumed to continue until the contrary is demonstrated and the presumption is in favor of continuance (see, City of Cohoes v Delaware & Hudson Canal Co., 134 N.Y. 397, 407; Matter of Van Aken v Town of Roxbury,211 A.D.2d 863, 865, lv denied 85 N.Y.2d 812). The burden of establishing abandonment is on the party claiming that the highway has been abandoned (see, Matter of Faigle v Macumber,169 A.D.2d 914, 915). In that regard, a municipality’s intention regarding a road is irrelevant (see, Daetsch v Taber,149 A.D.2d 864, 865) and its failure to maintain a road does not mean that the road ceases to be a highway (see, O’Leary v Town of Trenton,172 Misc.2d 447, 450). A determination of abandonment of a road by nonuse is a factual determination (see, e.g., Coleman v Village of Head of Harbor,163 A.D.2d 456, 458, lv denied76 N.Y.2d 768; Holland v Superintendent of Highways of Town of Smithtown,73 Misc.2d 851, 852).

It is undisputed that respondents never filed a certificate of abandonment to officially abandon the road. Likewise, it is clear that respondents did not maintain the road nor had the road been used by motor vehicles for more than the statutory six-year period. The narrow question left to be decided after submission of the photographs was framed by Supreme Court as follows: “[i]f the road entrance has been obstructed, and it is unpaved and overgrown with weeds, trees, bushes and shrubs, as claimed by petitioner, making travel along the `lines of the ancient street’ improbable, then even the most active recreational and seasonal use propounded by [respondents], that of snowmobilers, hikers, and bicyclists, would fall short of being highway use” (citing O’Leary v Town of Trenton, supra, at 451; Holland v Superintendent of Highways of Town of Smithtown, supra, at 853).

We find that Supreme Court correctly set forth the applicable law regarding abandonment of a highway through nonuse. After reviewing the photographs submitted by the parties, Supreme Court made the factual determination that the “photographs reveal many years of non-use as a highway” and “it is apparent that the road entrance has often been obstructed, preventing travel along the `lines of the ancient street,'” and summarily granted the relief sought by petitioner. We agree that the photographs show a number of barricades located at various points along the unpaved road, but they also show an ancient road, not overgrown with weeds, trees, bushes or shrubs, but clearly discernible, and not “virtually indistinguishable from the surrounding wooded area” (Matter of Faigle v Macumber, supra, at 916). Indeed, the pictures appear to depict a clearly defined, unpaved roadway through an area overgrown with brush and thick woods on both sides, precluding travel other than on the road, except with extreme difficulty. Our review of the photographs suggests to us that travel over this road by such disparate groups as snowmobilers, bicyclists, cross-country skiers and pedestrians would follow “along the lines of an existing street” (Town of Leray v New York Cent. R. R. Co., 226 N.Y. 109, 113). Moreover, respondents’ submissions reflect that although petitioner had barricaded the road on a number of occasions, those obstructions were either removed or knocked down so as to access its year-round recreational use. Therefore, the recreational uses found by Supreme Court may be sufficient to preclude a finding of abandonment of the road by nonuse. In our opinion, summary judgment should not have been granted in this matter in the absence of clarifying testimony as to the condition and use of the roadway.

Ordered that the judgment is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision.

Red Dirt Road

MATTER OF VAN AKEN v. Town of Roxbury, 211 AD 2d 863.

As found on Google Scholar.

211 A.D.2d 863 (1995) 621 N.Y.S.2d 204 In the Matter of Millard Van Aken et al., Appellants, v. Town of Roxbury et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Third Department.

January 5, 1995 Mikoll, Crew III, Yesawich Jr. and Peters, JJ., concur.

Cardona, P. J.

Petitioners are property owners with residences located in the Town of Roxbury, Delaware County, which extends beyond the roadway presently maintained by respondents as a Town road. On October 20, 1992, petitioners wrote to respondent Town of Roxbury requesting maintenance of the road segment at issue. On November 10, 1992, the Town Attorney responded by requesting evidence that the segment was a Town road. The attorney for petitioners wrote back indicating the reasons the particular segment was a Town highway. When no response was received, petitioner Millard Van Aken asked the Town Supervisor about the status of the request and was told that the Town Attorney was supposed to respond but had been delayed by other matters.

On March 4, 1993, the Town Attorney informed petitioners that if the segment was a Town road it had been abandoned. On July 1, 1993, petitioners commenced this CPLR article 78 proceeding seeking to compel the Town and respondent Town Superintendent of Highways to maintain the road segment pursuant to Highway Law § 140. In their answer, respondents asserted that the proceeding was barred by the four-month Statute of Limitations (see, CPLR 217 [1]). Supreme Court held that the Town was required to make a final binding determination on petitioners’ request before CPLR article 78 review was possible and the Town Attorney’s letter of March 4, 1993 did not constitute a binding determination. Unable to determine 864*864 if or when the Town had taken official action on petitioners’ request, Supreme Court dismissed the petition as either untimely or premature. By letter to the Town Board dated September 30, 1993, petitioners sought a formal vote on their request for maintenance. On October 11, 1993, the Town Board denied their request. Thereafter, petitioners moved for reconsideration, which Supreme Court denied.

Initially, we note that Supreme Court relied upon our decision in Treadway v Town Bd. (163 AD2d 637) in determining the Statute of Limitations issue. We treated the declaratory judgment action in Treadway as a mandamus to review for limitation purposes. However, the present proceeding is in the nature of mandamus to compel rather than mandamus to review. In mandamus to review, the court examines an administrative action involving the exercise of discretion for which no quasi-judicial hearing is required. On the other hand, in mandamus to compel an agency or officer’s performance of a ministerial act, the court examines whether the petitioner possesses a clear legal right to the relief sought and whether the agency or officer has a corresponding nondiscretionary duty to grant the relief requested (see, CPLR 7803 [1]; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 757; see also, Matter of Armstrong v Centerville Fire Co., 83 N.Y.2d 937, 939; Matter of Legal Aid Socy. v Scheinman, 53 N.Y.2d 12, 16).

In Treadway (supra), review was sought of an administrative action in the form of a declaration by the Town Board that the disputed road was not a public road. We held that the four-month Statute of Limitations began to run from that final binding determination. In this case, there is no question but that petitioners made a demand for maintenance to the Town on October 20, 1992. The March 4, 1993 letter from the Town Attorney[*] conveyed the Town’s refusal to perform its ministerial duty to maintain the road (see, Highway Law § 140). Accordingly, the four-month Statute of Limitations began to run at that time (see, CPLR 217 [1]; Matter of Waterside Assocs. v New York State Dept. of Envtl. Conservation, 72 N.Y.2d 1009, 1010; Matter of De Milio v Borghard, 55 N.Y.2d 216, 220; Matter of Pfingst v Levitt, 44 AD2d 157, 159, lv denied 34 N.Y.2d 518; see also, Siegel, NY Prac § 566, at 887 [2d ed]). Therefore, the petition filed on July 1, 1993 was 865*865 within the applicable period of limitations and the proceeding was timely commenced.

Having established that petitioners’ proceeding was timely commenced, we turn now to the merits of their petition. While it is clear that the Town has a legal duty to maintain Town roads (see, Highway Law § 140) and can be compelled to perform such a duty (see, People ex rel. Schau v McWilliams, 185 N.Y. 92, 100), the parties disagree on the fundamental question of whether the road segment at issue was abandoned by the Town and therefore no longer a Town highway. It is undisputed that no certificate of abandonment was ever filed by the Town, as provided for in Highway Law § 205. “Once a road becomes a highway, it remains such until the contrary is shown” (Matter of Shawangunk Holdings v Superintendent of Highways of Town of Shawangunk, 101 AD2d 905, 907; see, Matter of Flacke v Strack, 98 AD2d 881). A highway will be deemed abandoned if it is not traveled or used as a highway for six years (see, Highway Law § 205). The burden of proving such abandonment rests, in this case, with the Town (see, Matter of Shawangunk Holdings v Superintendent of Highways of Town of Shawangunk, supra, at 907).

Respondents have failed to meet their burden of proving that the road segment at issue was not traveled or used as a highway for six years. Although respondents argue that abandonment is shown because of a period of nonmaintenance in excess of 30 years, the law is clear that a highway does not cease to be a highway merely because the Town has failed to service it (see, Hewitt v Town of Scipio, 32 AD2d 734, affd 26 N.Y.2d 934). Nor is it relevant whether the Town intended an abandonment, as it is the substantive facts themselves which establish abandonment (see, Daetsch v Taber, 149 AD2d 864, 865). Petitioners have introduced uncontroverted cartographic and testimonial evidence to support their contention that the road has been and continues to be regularly used and traveled as a highway. We, therefore, find that no genuine issue of abandonment exists and that the contested road segment continues to be a Town road.

Ordered that the judgment and order are reversed, on the law, with costs, and petition granted.

Betty Brook Road

Holland v. SUPT. OF HIGHWAYS, 73 Misc. 2d 851

This case also from Google Scholar.

73 Misc.2d 851 (1973)

Eugene W. Holland, Plaintiff,
v.
Superintendent of Highways of the Town of Smithtown et al., Defendants.

Supreme Court, Special Term, Nassau County.

April 3, 1973 Donner, Fagelson & Hariton for plaintiff. H. Paul King for defendants.

BERTRAM HARNETT, J.

Eugene W. Holland owns property in Smithtown, New York, bordering to the east on a plot of land about 50 feet wide sometimes known as the “Old Smithtown to St. Johnsland Road”. In this declaratory judgment action brought against the Town of Smithtown and its Superintendent of Highways, Mr. Holland now seeks, by summary judgment motion, a declaration that he owns the westerly one half of the land by virtue of State and town abandonment of 852*852 it. Defendants move to dismiss pursuant to CPLR 3211 (subd. [a], par. 10).

Despite some minor disputation, the parties essentially agree that the subject land is not used as a public road for motor vehicular traffic. It is unpaved, blocked off on both ends, and substantially overgrown with trees and shrubbery. Pedestrians and bicyclers occasionally use it as a sort of pathway or shortcut. No material issue of fact appears to prevent a summary disposition. (Sachs v. Real Estate Capital Corp., 31 A D 2d 916; Law Research Serv. v. Honeywell, 31 A D 2d 900.)

Subdivision 1 of section 205 of the Highway Law provides in pertinent part: “Every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway * * * The town superintendent with the written consent of a majority of the town board shall file, and cause to be recorded in the town clerk’s office of the town a written description, signed by him, and by said town board of each highway and public right-of-way so abandoned, and the same shall thereupon be discontinued”.

The statute does not specify any procedures to be followed in town ascertainment of an abandoned highway, in contrast to the notice and hearing required for a “qualified abandonment” finding. (See Highway Law, § 205, subd. 2.) Any route once declared and used as a highway is presumed to continue as such until shown, by the party seeking a contrary declaration, to have been abandoned. (Hallenbeck v. State of New York, 59 Misc 2d 475, 480; Stupnicki v. Southern New York Fish & Game Assn., 41 Misc 2d 266, affd. 19 A D 2d 921.) The focal determination is essentially a factual one. And, nonuse of only a portion of a highway, while the rest continues to be utilized as a highway, does not result in abandonment, even of the unused portion. (Bovee v. State of New York, 28 A D 2d 1165.)

While at one time the Smithtown to St. Johnsland Road may have been heavily traveled, after its completion in 1917, the portion abutting Mr. Holland’s land has been in substantial disuse since a realignment of the Jericho Turnpike intersection in 1930. The evidence is overwhelming for much more than the past six years the land was not used as a highway. Petitioner and 16 residents in the surrounding neighborhood so attest in sworn statements and the photographs submitted clearly indicate lack of highway activity for many years. Indeed, the town itself uses the easterly half of the old road land as part of a park.

853*853While use as a highway upon appropriate circumstances may encompass less than contemporary expressway traffic of trailer trucks and high-speed automobiles, even the most active use posited by the town, that of pedestrian and bicycle passage, falls far short of being highway use. (Town of Leray v. New York Cent. R. R. Co., 226 N.Y. 109, 113.) Were this activity to create a public easement, the ownership rights of the adjoining fee owner would still remain unaffected. “It is the rule that where an easement only exists in the public that upon abandonment the fee is presumptively in the owners of the adjoining land.” (Stupnicki v. Southern New York Fish & Game Assn., 41 Misc 2d 266, 271, affd. 19 A D 2d 921, supra).

As Judge CARDOZO observed in Barnes v. Midland R. R. Term. Co. (218 N.Y. 91, 98): “If for six years the highway remains closed with the acquiescence of the public, there is an extinguishment of the public right”.

One peculiar wrinkle remains. After the State apparently realized that this portion of the “Old Smithtown to St. Johnsland Road” would be unused because of the mentioned realignment, the Commissioner of the Department of Works, Division of Highways, issued an official order dated July 19, 1932, substituting as part of the official State highway the realigned section for the abandoned section, stating that the unused portion was to be “TURNED OVER to the COUNTY OF SUFFOLK for future maintenance and repair”. The town asserts, in seeking dismissal, that this directive adversely affects Mr. Holland’s fee interest, and further requires the County of Suffolk to be joined as a necessary party.

Mr. Holland’s fee interest, clearly established by his surveyor’s title search of deeds going back over one hundred years, is not disturbed by the State’s order which relates solely to maintenance and care of the discontinued stretch of highway, not to the underlying ownership. Under the State highway system, created in 1908, the State does not own its roads unless prescribed condemnation procedures are first completed. (L. 1908, ch. 330; Highway Law, § 30.) Here, there is no indication of any prior State condemnation. When the Department of Works’ order was issued in 1932, the State’s interest was merely that of a public right of way, limited to its entitlement and obligation to maintain the roads. Accordingly, even if the Commissioner had conveyance power, all that could have been “turned over” to Suffolk County in 1932 was the State’s maintenance right. In this proceeding to determine ownership rights in the land, the county is not, therefore, a necessary or 854*854 indispensable party, particularly where, upon abandonment declaration, and resulting ownership and use vesting in the adjoining owner, he would then assume use, control and maintenance of the land.

Moreover, the purported deed from the county to the town dated July 28, 1930, transferring the 15 feet on each side of the subject parcel to the town only for use as a park or plaza, does not appear to affect the easterly side of the road, not owned at any time by the town. In any event, it could not convey a fee interest that the county did not have.

Finally, the lack of any formal application for a town certificate is not at this stage fatal. The abandonment exists, independent of the town certification, a purely ministerial act. (See People ex rel. De Groat v. Marlette, 94 App. Div. 592, 594.) There are no procedures set forth in the statute indicating who may obtain, and how, the “consent” to abandonment by the Town Board. (Highway Law, § 205, subd. 1.) No reason is suggested why a court, with the town and its Highway Department fully and fairly before it, may not declare the respective rights of the parties so as to resolve the controversy. Exhaustion of administrative remedies is not a prerequisite in an action for declaratory judgment. (Northern Operating Corp. v. Town of Ramapo, 31 A D 2d 822.) Moreover, the town, by fully appearing here and expressing its opposition on the merits in the many forms indicated, has demonstrated that a remand of Mr. Holland’s application to the town would be a futile and superfluous avenue, and has therefore rendered the dispute ripe for judicial determination.

Accordingly, defendants’ motion to dismiss is denied, the plaintiff’s motion for summary judgment is granted, and a declaratory judgment shall be issued declaring the road land abutting plaintiff’s property to be abandoned.

Settle judgment on notice.

A look at the various laws and a few cases relating to the abandonment of highways in NY State.

Weekend at Bear Springs Mountain, Delaware Wild Forest, Warren Highlands

Based on the forecast for the long weekend, I decided to head down to the Western Catskills rather then Moose River Plains. It certainly was a bit sunnier, drier, and less snowy then it looks like they got up at Moose Plains. I simply did not another Memorial Day Weekend at Moose Plains, sitting in rain and snow showers.

I ended up heading down to the Western Catskills. Didn’t leave home until after 10 AM, because I was putzing around. So be it. I also had to stop at Walmart to buy another blaze orange hat, for hiking, because I lost mine. I knew it would be hunting season down there, and figured better safe then sorry. The previous night, they didn’t have one at Glenmont Walmart, so had to visit the Decided to head out the Warren Anderson Expressway (I-88) down to NY 10, and take that all the way south to Walton.

Fire Tower

Driving down NY 10, as soon as I reached Summit, you could see a dusting of snow on the summits around. Stopped in Stamford, drove up to Mount Utsaythana. There was a dusting of snow there too, in parts it looked like a winter wonderland. Then it was down to Walton, following NY 10 and the East Branch of Delaware River. Drove through Delhi, a small rural college town. I had been through Delhi years ago, meandering around Stamford, but not in years. Then I went down to Walton, climbed an enormous hill in the truck, and was at the Bear Spring Mountain Wildlife Management Area (aka Public Hunting Grounds).

At Bear Spring Mountain WMA there is a state DEC campground known as Bear Spring Mountain Campground. It consists of two parts, a fully developed campground with hot showers that is open during the summer months near Launt Pond, and the Spring Brook area with stud pends and a pit privy, similar to Charles Baker State Forest. Both areas are a $18 a night in summer, but from October to the end of hunting season, the lower area is free, but the water is shut-off down there. The designated campsites there are crunched together, and there is no privacy, so I can’t imagine it’s much fun camping there, especially with the smell of horses on a hot summer’s afternoon.

By the time I got down there, it was fairly early, so decided to explore a bit. Drove up to Corbett, explored the Corbett Suspension Bridge, and an old chimney from the β€œacid factory”, which made an acid from tree bark for smokelesss gunpowder. Decided to head back and explore Bear Spring Mountain WMA a bit more, and drove up West Trout Brook Road, past several hunters. There are some limited views from end of East Trout Brook Road, namely at the summit Bear Spring Mountain. There are better views from NY 206, climbing up from Walton, but with few view points. Also explored Beers Brook Road, which had some limited but nice views into the valley below, and Russ Gray Pond.

Bridge Tower

Bear Spring WMA, being a federally-funded public hunting grounds, does not allow camping. The only camping there is those tiny, smashed together developed campgrounds known as the Bear Spring State Campground, operated by the DEC. I decided it was getting late, and I would camp there tonight, especially because it looked like one of campers had packed up, and the only other person around, was a female bow hunter, on far end of the campground. I wasn’t thrilled, as it meant I would have to keep the music down, but at least the campground was deep in the valley, protected from the wind.

It wasn’t a bad night though. The pit privies were kind of gross, but probably not worst then most of the outhouses in the woods. There was surprisingly a lot of wood in woods near the campground. The truck worked well with keeping the lights on, since switching the truck’s radio back to the starting battery and evenly discharging both batteries. The radio shuts off automatically when the starting battery is starting to get a bit low, and Big Red’s DIC says β€œBattery Low: Start Engine Low”. Previously, with the starting battery at full charge, hooked up to the discharged auxiliary battery, the alternator wouldn’t kick up to full charge, so the auxiliary battery would fail to get fully charged. Now, with the starting battery slightly discharged – but with enough charge to crank the engine, things kept working well all night long. There was a little bit of sleet in the evening, but nothing major.

Russ Grey Pond

The next morning, I got a slow start. It was drizzling, and I kind of slept in. I didn’t have a tarp set up, which didn’t help. I probably didn’t break camp until 10:30 AM..I was thinking of hiking the NYC DEP trail that overlooks the Pepacton Reservoir, but I ended up turning off onto Holiday Brook Road, and deciding to check out Huggins Lake. Hugging Lake was a nice hike back, following an old woods road back there. There is a campsite down by the lake. Apparently on the ridge above Huggins Lake, there is an old growth forest, but I never got back there.

Then it was off to Mary Smith Road. On Campground Road, one of the cut-over roads, I got to a cover bridge, which had a clearance of 6’6”, which is about an inch too low for my pickup truck with the cap and racks on. So I had to turn around, and back track for about 5 miles. That sucked. Stopped and grabed a few pictures. When I got on Mary Smith Road, and back in forest preserve, I was pleasantly surprised to find three roadside campsites on it. I ended up camping at the most used of the sites – as witnessed by vegetation – along the Finger Lakes Trail/Mary Smith Trail/Middle Mountain Trail. It was a pretty nice roadside campsite.

About as soon as I scoped out the campsite, I realized it would be a pretty night up there. Despite the mountains on both sides, the north wind was whipping along the col. But I liked the campsite, and there was plenty of trees to hang a tarp up. I starting setting up camp at 2:30 PM – which was kind of early – but I figured it was too late to hike Mary Smith Hill (which wasn’t true), but it did start to rain/sleet a bit. Got the tarp up, then the lights strung up and flag up. A heavy sleet squall pounded the col, for a while bad enough I hid out in the cab of the truck. Then I went out, built a fire, and spent sometime listening to a podcast and reading a book about the 1964 World Fair in New York.

The new 60-watt equivalent LED bulb I bought worked real well in the cold, which got down below freezing that night.. But with the bulb focused on the book, it was easy reading and plenty bright. In the cold, the 60-watt equivalent LED bulb was actually brighter then the 100-watt florescent bulb I had at camp, even after fully warming up, because the cold wind made it impossible for the florescent tube to get warm enough to fully atomize the mercury in the fixture.

At times the wind picked up, and it was pretty darn cold, to say the least. I end up putting the fire out cold before bed, to reduce the risk of the fire spreading, and because the tarp partially covered the fire pit, I was afraid it could fall into the fire, and possibly set the truck on fire or cause dripping plastic to fall on it. The fire was out cold, and I went to bed around 10:30 PM. No nightmares.

Mary Smith Hill Roadside Campsite 1

After bedding down, the wind started to whip around. It literally was howling, and the tarp was snapping up and down, making quite a bit of noise. Morning came, and it was beautiful blue skies, but very cold. That was when I first saw car actually pass by on Mary Smith Hill Road – despite being a through-road, and not a super remote road at that. Had another slow breakfast, and built a small fire to burn up some camp garbage. Usually I don’t start fires in the morning, but I was chilly, and knowing that it may be a while until I got out camping again, I wanted to have a fire.

Once I finally got going, I hiked up Mary Smith Hill to the overlook. It really was a lot less further then I expected, and ha+d some interesting views to the north. Nothing totally breathtaking, but still an interesting short hike of maybe 20 minutes each way. Then I drove over to Russell Brook Falls, making a wrong turn and ending up going through Livingston Manor and the world famous fly fishing town, Roscoe. My impression of Roscoe, was it was a very a long and pokey 30 MPH zone, but with more stores then one would expect in such a rural, small town. I probably should have stopped, but I was burning daylight.

Finally made it to Morton Hill Road, and passed a Game Warden in a unmarked green suburbanite-style Jeep. The only reason I know that, was I saw him outside of the car talking to somebody in full uniform. Morton Hill Road climbs a lot from Roscoe out to where it hits Russell Brook Road. There are three campsites along Russell Brook Road, although in all of them there is a boulder barrier between the campsite and fire pit. One might still be able to use them for a pickup with a camper on them, I guess.

Russell Brook Falls 2

I hiked back to Russell Brook Falls – a beautiful but relatively unknown set of falls – at least to non-regulars to that part of state. They are less then quarter mile from the Russell Brook Falls parking area. I stopped and grabbed some pictures. Then, it’s easy hike back to back to Trout Pond, following a gated road 9/10th of a mile from the parking area. There is a slight incline on the road, but nothing to make one break a sweat, even a fat out of shape dude like me, who spends too much time sipping cold buds in the woods. The road is a designated route for people with disabilities – somebody very strong with a wheel chair could theoretically get back there, or maybe with a CP-4 disabled with an ATV permit.

Back at Trout Pond, there is a campsite on the easterly end, and the gated road continues to the west end of lake. On the west end of the lake, there are two other campsites, spaced a ΒΌ mile apart, along with two lean-tos. All are designed for those with disabilities. There is also a trout spawning shelter on one of the creeks leading into lake. One of the lean-tos was well equipped – somebody left behind some nice pots and pans, all cleaned up, and a selection of perfectly good adult beverages and soda along the back wall of the lean-to. Talk about paying it forward to the next person who will use that lean-to – most certainly a hunter this time of year.

It’s small game hunting season, heard several small game bullets ring out, while hiking back there. No hunters nearby, as far as I could see, but I did wear plenty of blaze orange. I am sure next week, there will be a lot more hunters back there. Wish them luck. Hiked back to my truck and explored Campbell Mountain Road and Campbell Brook Road, looking for additional roadside campsites, preferably the kind you can back a pickup all the way back to. No such luck. Oh, well.

Trout Pond

Then I drove down NY 30, through the hamlet of Harvard, then East Branch. Took Old Route 17 to Hancock, then poked around the Poconos and the Warren Highlands in Pennsyltucky, before eventually ending up in Susquehanna and Great Bend. The area around Hancock is very mountainous and beautiful. The Warren Highlands were rough, mostly hunting and rural landscape country, with a relatively small amount of farming going on. Lots of open burning going on too – I love Pennsylvania..

I love that wild country, and everything Pennsylvania. Fueled up, picked up certain Pennsylvania products not legal in New York and/or cheaper then New York, then hopped on I-88/Warren Anderson Expressway, and made a bee-line back to Delmar, stopping only momentarily at the rest stop on I-88. That place was creepy as all hell after dark, and not well lit either. I seriously thought of just taking a piss in some farm

I made it back to Delmar around 7 PM. It was a good adventure. Burned through more gasoline, then I had planned, although on the trip back along I-88, I average 19.9 mpg in my Big Red Silverado pickup, so not complaining.

A long-weekend trip in early November to explore the the Western Catskills.

Section 212 of the State Highway Law

Section 212 of Highway Law.

S 212. Changing location of highways over certain lands owned and occupied by the state. 1. If a highway passes over or through lands wholly owned and occupied by the state, the location of such portion of such highway as passes through such lands may be altered and changed, or the same may be abandoned or the use thereof as a highway discontinued with the consent and approval of the state authority having jurisdiction or control over such lands by an order directing such change in location, abandonment or discontinuance. Such order shall contain a description of that portion of the highway the location of which has been changed, abandoned or discontinued, and a description of the new location thereof, if any, and shall be filed in the office of the state authority having control of such lands.

 Relatively Smooth Section of Crane Pond Road

John J. Kelly v. DEC Commissioner Jorling (1990).

You can read the court case online.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

November 21, 1990

IN THE MATTER OF JOHN J. KELLY, APPELLANT,
v.
THOMAS C. JORLING, AS COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, RESPONDENT

Appeal from a judgment of the Supreme Court (Dominick J. Viscardi, J.), entered March 29, 1990 in Essex County in a proceeding pursuant to CPLR article 78, which dismissed a petition to prohibit respondent from directing closure of a portion of a road traversing State-owned land in Essex County.

Roemer & Featherstonhaugh (E. Guy Roemer of counsel), for appellant.

Robert Abrams, Attorney-General (Lawrence A. Rappoport of counsel), for respondent.

Kane, J. P. Casey, Mikoll, Yesawich, Jr., and Mercure, JJ., concur.

Author: Kane

OPINION OF THE COURT

Crane Pond Road is a gravel and dirt roadway located in the Town of Schroon, Essex County, of which the last 2 1/2 miles (hereinafter referred to as the road) lead through State-owned lands to the edge of Crane Pond. That part of the Adirondack Forest Preserve surrounding the road was reclassified “wilderness” in 1979 and, in 1987, the road itself was reclassified wilderness. In December 1989, respondent issued an order, pursuant to Highway Law ? 212, closing the road in accordance with the Adirondack State Land Master Plan. Guidelines within that plan called for the closing of roads which impermissibly allowed for the prohibited use by the public of motorized vehicles and equipment in wilderness areas. Petitioner, the Town Supervisor, subsequently commenced this CPLR article 78 proceeding to challenge respondent’s authority to close the road pursuant to Highway Law ? 212. Supreme Court found that respondent possessed such authority and dismissed the petition. This appeal followed.

We affirm. Petitioner apparently does not question respondent’s jurisdiction over the lands at issue or the State’s power to close the road, but instead challenges the specific statutory authority pursuant to which respondent ordered said closing. Highway Law Sec 212 was amended in 1988 to read as follows: “If a highway passes over or through lands wholly owned and occupied by the state, the location of such portion of such highway as passes through such lands may be altered and changed, or the same may be abandoned or the use thereof as a highway discontinued with the consent and approval of the state authority having jurisdiction or control over such lands by an order directing such change in location, abandonment or discontinuance. Such order shall contain a description of that portion of the highway the location of which has been changed, abandoned or discontinued, and a description of the new location thereof, if any, and shall be filed in the office of the state authority having control of such lands.” The 1988 amendment eliminated the need for the Commissioner of Transportation to issue the order of closure (see, L 1988, ch 161, ? 2), essentially leaving that decision to the State agency having appropriate jurisdiction (see, mem of State Dept of Transp, 1988 McKinney’s Session Laws of NY, at 1980-1981). Petitioner argues that the express language of the statute does not specifically authorize respondent to issue an order of closure and that no such power may properly be inferred therefrom. We disagree.

The primary consideration of statutory construction is legislative intent (see, Matter of Long v Adirondack Park Agency, 76 N.Y.2d 416, 422; Hudson City Savs. Inst. v Drazen, 153 A.D.2d 91, 93; see also, McKinney’s Cons Laws of NY, Book 1, Statutes ? 92), and courts are to avoid a literal construction when it leads to either a frustration of the over-all design of the Legislature (see, McKinney’s Cons Laws of NY, Book 1, Statutes ? 111) or an ineffectually absurd result (see, Matter of Long v Adirondack Park Agency, supra, at 421; see also, McKinney’s Cons Laws of NY, Book 1, Statutes ?? 144, 145). The legislative intent behind Highway Law ? 212 was to permit the State to close roads on State lands that endangered a State purpose (see, Matter of Altona Citizens Comm. v Hennessy, 77 A.D.2d 956, 957, lv denied 52 N.Y.2d 705). Adopting petitioner’s view, that respondent has the power to consent to and approve the closing of a roadway but does not possess the authority to order its closure, would eviscerate the statute and render it meaningless. In our view, the statute’s expressed intent provides an ample basis and rationale to conclude that “the state authority having jurisdiction or control over [state] lands” (Highway Law ? 212) is empowered to issue orders effectuating that authority. Accordingly, respondent’s order was a valid exercise of the statutory power given to the appropriate State agency pursuant to Highway Law ? 212.

Disposition

Judgment affirmed, without costs.

North Up to Piseco-Powley

In the Matter of the Alleged Violations by JAMES W. McCULLEY, Respondent. (2009)

This is an excerpt of relvant portions of this adminstrative law decision.

2. Department’s Jurisdiction To Regulate Motor Vehicle Traffic Over Old Mountain Road

Department staff contends that the portion of Lot 146 owned by the State is part of the forest preserve. Accordingly, staff asserts jurisdiction to regulate motor vehicle traffic over that portion of Old Mountain Road that crosses State-owned land.

Department staff has established that the State-owned portion of Lot 146 is part of the forest preserve. It is undisputed that the State acquired the northern half and southeastern quarter of Lot 146 in 1875 (see Deed, Department Exh 48, at 556). The forest preserve was subsequently created by chapter 283 of the Laws of 1885, which provided in relevant part:

“All lands now owned or which may hereinafter be acquired by the state of New York within the counties of . . . Essex . . . shall constitute and be known as the forest preserve.”

(L 1885, ch 283, § 7). Chapter 283 is now codified at ECL 9- 0101(6). Thus, the State-owned portion of Lot 146 was and remains part of the forest preserve.

The existence of Old Mountain Road as a public right of way, however, pre-dates the State’s ownership of Lot 146. In the 1810 legislation appropriating money for the repair of Old Mountain Road, the State Legislature declared the road to be a “public highway” (L 1810, ch CLXXVII, § I). Because the Legislature did not provide for acquisition of the fees underlying the public highway, the public acquired merely an easement of passage, the fee title remaining in the landowners (see Bashaw v Clark, 267 AD2d 681, 684-685 [1999]). Thus, when the State acquired its portion of Lot 146 from the prior landowner, it did so subject to a public highway in the nature of an easement (see id.; see also Matter of Moncure v New York State Dept. of Envtl. Conservation, 218 AD2d 262, 267 [1996] [when the Department acquires forest preserve lands burdened by a leasehold, the Department takes such property subject to that leasehold]).

Department staff asserts that subsequent statutory law vests the Department with jurisdiction over public rights of way crossing forest preserve land. Accordingly, citing the Vehicle and Traffic Law, Department staff asserts that it has the power to “prohibit, restrict or regulate” motor vehicle traffic on any highway under its jurisdiction, including Old Mountain Road (see Vehicle and Traffic Law [“VTL”] § 1630). Pursuant to section 1630, Department staff claims it has the authority to close Old Mountain Road to motor vehicle traffic while allowing pedestrian and other forms of non-motorized traffic (see Adirondack Park State Land Master Plan [updated June 2001], DEC Exh 17, at 66 [indicated that Old Military Road has been closed]).

Respondent, on the other hand, argues that Old Mountain Road was and remains under the jurisdiction of the Towns of North Elba and Keene. 3 Thus, respondent contends that the exception under 6 NYCRR 196.1(b) for roads under the jurisdiction of a town highway department applies in this case (see 6 NYCRR 196.1[b][1]). Respondent contends that the exception for public rights of way over State land also applies (see 6 NYCRR 196.1[b][5]).4

VTL § 1630 does not itself vest in the Department jurisdiction over any particular highway. Whether a State agency has jurisdiction to regulate motor vehicle traffic pursuant to section 1630 depends upon whether that agency is otherwise authorized by law to regulate the use and management of the public highway at issue (see People v Noto, 92 Misc 2d 611, 612- 613 [1977]; see also Highway Law § 3)

On this motion, it cannot be determined, as a matter of law, which entity has jurisdiction to regulate the use and management of Old Mountain Road. When the New York State Legislature declared Old Mountain Road to be a public highway in 1810, it provided that after an initial four-year period of repair and improvement by a commissioner specially appointed for that purpose, the maintenance of the road would be assumed by the several towns through which it passed (see L 1810, ch CLXXVII, § III). Thus, at the time the State acquired Lot 146, subject to the public right of way, that right of way was apparently a town road under the jurisdiction of the Town of Keene and later the Town of North Elba (see Highway Law § 3[5]).5

Nothing in the submissions on this motion allow me to conclude, as a matter of law, that jurisdiction to regulate the use and management of Old Mountain Road has transferred from the Towns of North Elba and Keene to the Department. To the contrary, conflicting statutory provisions and circumstantial evidence require further legal argument and evidentiary proof before such a determination can be made.

For example, in support of Departmental jurisdiction to regulate traffic, Department staff notes that when the powers of the Conservation Department were revised in 1916, the “free use of roads” provision from the 1885 law limiting the forest commission’s power to prescribe rules and regulations for the forest preserve, was eliminated (see L 1916, ch 451). Staff further notes that the current ECL and Executive Law provisions authorizing the Department to make necessary rules and regulations for the protection of the forest preserve generally, and the Adirondack Park specifically, contain no limitation on regulating the free use of roads (see ECL 9-0105[3]; Executive Law § 816). However, although the Department has the power to regulate uses of the forest preserve generally, and the Adirondack Park specifically, it does not necessarily follow that such power includes the authority to regulate public rights of way under the jurisdiction of other State entities or municipalities.

In contrast, legislation adopted subsequent to 1916 suggests that the Department was not vested with the power to regulate use and maintenance of highways in the forest preserve. In 1924, the former State Commission of Highways was granted the power to maintain existing State and county highways in the forest preserve (see L 1924, ch 275). In 1937, town superintendents were expressly granted the right to occupy a right of way over State lands as may be required in the maintenance or reconstruction of town highways that cross those lands, subject to the approval of the Superintendent of Public Works and the Conservation Commissioner (see L 1937, ch 488). The grant of a right of way over State land to maintain and repair town highways strongly implies that towns retained jurisdiction over town highways in the forest preserve, notwithstanding the Department’s grant of authority to regulate the forest preserve generally (see Flacke v Town of Fine, 113 Misc 2d 56 [1982]).

Department staff also points out that Old Mountain Road has not appeared on either the Town of North Elba or the Town of Keene inventory of town highways. The evidence on this is equivocal, however. Old Mountain Road has not appeared on any inventory of State or county highways either (see L 1921, ch 18 [designating system of State and county highways]). On the other hand, Old Mountain Road did appear on a 1935 Highway Survey Commission map, although its status as a State, county or town highway is not indicated (see Department Exhs 51-53).

Respondent provides some circumstantial evidence suggesting that the Towns of North Elba and Keene retain the jurisdiction to regulate traffic on Old Mountain Road. For example, in 1971, the Town of North Elba adopted a resolution, which is still in effect, regulating the use of snowmobiles on Old Mountain Road (see N. Elba Ordinance [2-12-71], Affidavit of Norman Harlow, Highway Superintendent, Town of North Elba, Exh B). Respondent also provides letters dated June 7 and November 13, 1996, respectively, from Mr. Tom Wahl, former Department Regional Forester, expressing the opinion that Old Mountain Road remains a town highway (see Respondent Exhs 16 and 17).

Finally, research reveals some authority suggesting that Old Mountain Road is under the jurisdiction of predecessors to the Department of Transportation (see People v Paul Smith’s Elec. Light and Power and R.R. Co., Sup Ct, Essex County, July 29, 1953, Imrie, J., Decision, at 3-4, 6; 1950 Opn of the Atty Gen 153-154). Whether the portions of Old Mountain Road at issue here are subject to the above authorities, however, is unclear at this time.

In sum, legal and factual issues exist concerning whether the Department has jurisdiction under VTL § 1630 to regulate motor vehicle traffic on Old Mountain Road that require further hearings and legal argument.

3. Request for Relief Pursuant to Highway Law § 212

In its motion for order without hearing, Department staff requests an order of the Commissioner declaring Old Mountain Road between the eastern and western boundaries of the Sentinel Range Wilderness Area closed to all motorized vehicles and motorized equipment. Among the statutory authorities staff relies upon for this request is Highway Law § 212.

Highway Law § 212 provides:

“If a highway passes over or through lands wholly owned and occupied by the state, the location of such portion of such highway as passes through such lands may be altered and changed, or the same may be abandoned or the use thereof as a highway discontinued with the consent and approval of the state authority having jurisdiction or control over such lands by an order directing such change in location, abandonment or discontinuance”

The Department is the State authority with jurisdiction to order abandonment or discontinuance of roads over forest preserve lands in order to protect a relevant State interest (see Matter of Kelly v Jorling, 164 AD2d 181 [1990], lv denied 77 NY2d 807 [1991]; see also Matter of Altona Citizens Comm., Inc. v Hennessy, 77 AD2d 956, lv denied 52 NY2d 705). Such authority includes the power to order the discontinuance or abandonment of town highways (see id.).

Department staff does not address this request for relief in its brief in support of its motion. Nevertheless, to the extent Department staff contends that the Department has already closed Old Mountain Road pursuant to Highway Law § 212, I conclude that triable issues exist before the requested relief may be granted. Staff supplies no evidence that a Departmental order pursuant to Highway Law § 212 has been filed with respect to that portion of Old Mountain Road that is at issue in this case. Accordingly, to the extent Department staff relies upon such a closure order in support of the violation alleged against respondent, staff has not established a prima facie case.

With respect to abandonment, an order of closure is not required to deem a public right of way extinguished by operation of law if the highway has in fact been abandoned by the public for six years or more (see Matter of Wills v Town of Orleans, 236 AD2d 889, 890 [1997]). However, the record reveals triable issues of fact concerning abandonment (see Matter of Smigel v Town of Rensselaerville, 283 AD2d 863, 864 [2001] [a determination of abandonment is a factual determination]).

Pedestrian use and even recreational use may support a finding of non-abandonment, even if a highway has not been subject to motor vehicle traffic, as staff alleges in this case (see Town of Leray v New York Cent. R. Co., 226 NY 109 [1919] [pedestrian use may preserve highway though vehicles are barred]; Matter of Smigel, 283 AD2d at 865 [recreational use may preclude finding of abandonment]). The record contains conflicting evidence concerning the degree to which the public has continued to use the road, thereby necessitating a hearing on abandonment.

With respect to discontinuance, assuming Department staff is seeking a prospective order from the Commissioner, such a prospective order would not support the violation alleged here. Moreover, it is not clear what findings, if any, the Commissioner must make and whether such an order can be issued on the present record. Again, Department staff does not address this item of relief in its brief. Accordingly, the request for a prospective order of closure pursuant to Highway Law § 212 is denied, without prejudice.

 Purple Flowers Along Otter Brook Road

Adirondack Council Press Release (2009).

You can read it here.

ADIRONDACK COUNCIL CALLS ON ENCON COMMISSIONER GRANNIS TO CLOSE FOREST PRESERVE ROADS IN WAKE OF JUDGE’S DECISION

Administrative Judge Declares Former Town Road in State Wilderness Area to be Open for Motorized Use; Grannis Should Re-Close it and Any Others Affected

For more information:
John F. Sheehan
518-432-1770 (ofc)
518-441-1340 (cell)

Released: Thursday, May 21, 2009

LAKE PLACID, N.Y. – The Adirondack Council today called on NYS Department of Environmental Conservation Commissioner Peter Grannis to use his administrative authority to re-close a former road in an Adirondack Wilderness Area that was opened to motorized traffic today by a state administrative law judge.

“It appears from the judge’s decision that the state didn’t properly close this road when it assumed ownership of it and converted it to a hiking, ski and horse trail,” said Adirondack Council Executive Director Brian L. Houseal. “But today’s decision doesn’t have to be the final word on the matter.

“Commissioner Grannis has the authority to use the NYS Vehicle and Traffic Law to prohibit the use of motorized vehicles on this and other roads that are affected by this decision,” Houseal explained. “We urge Commissioner Grannis to begin that process right away. He should have done so today, as this decision was announced, to avoid the chance that someone is already out there riding a jeep or an all-terrain vehicle on this road.

“It is also imperative that the DEC issue its ATV Policy for state lands, which was first announced by Commissioner Erin Crotty during the Pataki Administration,” Houseal said. “DEC cannot allow fragile wildlife habitat and water quality to suffer in New York’s premiere Wilderness Park due to DEC’s inability to complete its work in a timely way.”

Commissioner Grannis can act right now to stop motorized traffic in off-limits locations in the Adirondack Park by exercising NYS Highway Law Section 212, Houseal said,

NYS Highway Law Section 212:

§ 212. Changing location of highways over certain lands owned and occupied by the state. If a highway passes over or through lands wholly owned and occupied by the state, the location of such portion of such highway as passes through such lands may be altered and changed, or the same may be abandoned or the use thereof as a highway discontinued with the consent and approval of the state authority having jurisdiction or control over such lands by an order directing such change in location, abandonment or discontinuance. Such order shall contain a description of that portion of the highway the location of which has been changed, abandoned or discontinued, and a description of the new location thereof, if any, and shall be filed in the office of the state authority having control of such lands.

“If Commissioner Grannis doesn’t make use of Section 212, today’s decision could turn into a disaster for the natural character of the Adirondack Park,” Houseal explained. “There are more than one million acres of protected, roadless Wilderness in the Adirondack Park. It represents nearly 85 percent of all roadless, wilderness forest lands in the eastern United States. Yet, it is only 1/30th of New York State’s total land area – very rare.

“Opening these roads to motorized traffic will harm wildlife, water quality and the peaceful nature of the last big place left in the Northeast where you can escape the noise and pollution of motorized traffic,” he said.

Under the Adirondack Park State Land Master Plan, approved by the Legislature in 1972, all motorized or mechanized travel is banned by state law in Adirondack Wilderness Areas, including mountain bikes.

Another 1.5 million acres of the public Adirondack Forest Preserve is classified as Wild Forest, where motorized traffic is allowed on some designated highways, but not in sensitive areas. Today’s ruling could be interpreted to mean that any road that was never lawfully abandoned to motorized traffic is now open, regardless of its classification as Wilderness or Wild Forest.

The Adirondack Council is a privately funded not-for-profit organization dedicated to ensuring the ecological integrity and wild character of New York’s 9,300-square-mile Adirondack Park. The Council carries out its mission through research, education, advocacy and legal action. The Council has members in all 50 United States and on four continents.

Tiny Roadside Campsite

Resolution from Adirondack Assocation of Towns (2010).

From their 2010 Adirondack Towns Association Resolution Book.

RESOLUTION REQUESTING AMENDMENT OF HIGHWAY LAW SECTION 212 BACKGROUND OF RESOLUTION

The State of New York has closed Town roads in the Adirondacks without the consent and against the wishes of the involved Towns. Highway Law Section 212 which has been interpreted by the courts to authorize the Commissioner of the Department of Environmental Conservation to close roads by Commissioner’s order should be repealed or amended to remove that authority, because it does not provide due process to residents and the involved Towns. The remaining provisions of the Highway Law provide a procedure for towns to close abandoned town roads and to discontinue maintenance on roads which do not provide access to structures by declaring them to be “Qualified Abandoned”.

Whereas, Highway Law Section 212 entitled “Changing location of highways over certain lands owned and occupied by the state” provides as follows:

“If a highway passes over or through lands wholly owned and occupied by the state, the location of such portion of such highway as passes through such lands may be altered and19 changed, or the same may be abandoned or the use thereof as a highway discontinued with the consent and approval of the state authority having jurisdiction or control over such lands by an order directing such change in location, abandonment or discontinuance. Such order shall contain a description of that portion of the highway the location of which has been changed, abandoned or discontinued, and a description of the new location thereof, if any, and shall be filed in the office of the state authority having control of such lands.”

Whereas, the Appellate Division held in Altona Citizens Committee, Incorporated v. Hennessy, 77 AD2d 956 (3rd Dept., 1980) that “Section 212 as originally adopted, related to closing or changing the location of highways passing over lands wholly owned and occupied by the State for farm or prison purposes (L. 1920, ch. 558, s 1). In 1924, the statute was amended to permit the application of the statute to State lands without regard to their use (L. 1924, ch. 141). The removal of the restriction that only prison or farm lands were covered by the statute indicates a legislative intention that closure be permitted whenever a State purpose is endangered by a roadway on State land. To effectuate this intention of the Legislature the occupancy requirement of section 212 of the Highway Law should be given a liberal construction.”

Whereas, the State used Section 212 to close a road in the Town of Altona in the 1970s despite the fact that the State did not occupy the land and despite the fact that the land was occupied by the Ganienkeh group of Indians; and Whereas, the State used Section 212 to close a road in the Town of Wells in the 1970s (see Town of Wells v. New York State Department of Transportation, 90 Misc2d 535 [Sup. Ct. Hamilton County, 1977]); and

Where as, in December 1989 the Commissioner of the Department of Environmental Conservation ordered the closure of a well traveled town road (Crane Pond Road) in the Town of Schroon pursuant to Section 212, without the approval and despite the opposition of the duly elected officials of the Town of Schroon, (see Kelly v. Jorling, 164 AD2d 181 [3rd Dept., 1990]); and

Whereas, the New York State Department of Environmental Conservation proposes in the Silver Lake Unit Management Plan recently approved by the Adirondack Park Agency to “work with the Town of Wells”: to close the West River Road in the Town of Wells; and

Whereas, the Town Board of the Town of Wells is adamantly opposed to the closure of West River Road and wishes to continue to maintain it and to keep it open to the traveling public as it has been open for many decades; and

Whereas, Highway Law Section 212 as it currently exists; and as it has been interpreted, is a threat to the authority of the duly elected officials of the Town of Wells and their ability to maintain their transportation system; and20

Whereas, Section 212 also constitutes a threat to every town and village in the Adirondacks which has a town and village road passing through state lands,

NOW, THEREFORE, it is hereby RESOLVED that the Adirondack Association of Towns and Villages hereby requests that a bill be introduced in the New York State Legislature to amend Section 212 to make it clear that Section 212 may not be used by the State to close town and village roads in the Adirondacks, except where the lands are occupied and used by the State for prison or farm purposes as Section 212 provided when originally enacted.

CURRENT STATUS: DEC Commissioner Grannis dismissed an enforcement proceeding in Essex County against an individual driving on a road that the DEC had said was Forest Preserve on the ground that it had not been demonstrated that the road was an abandoned road or that the road was not a legal right-ofway for public use. The decision of Commissioner Grannis supports the town’s position that the DEC does not have the authority to close town roads that the town has continually maintained and does not wish to abandon.

Milepost 6 on Plains Road

Assemblywomen Sayward’s Bill Limiting Section 212 to Areas Outside of Adirondack Park (2011).

                STATE OF NEW YORK
        ________________________________________________________________________
 
            S. 343                                                    A. 149
 
                               2011-2012 Regular Sessions
 
                SENATE - ASSEMBLY
 
                                       (Prefiled)
 
                                     January 5, 2011
                                       ___________
 
        IN  SENATE — Introduced by Sen. LITTLE — read twice and ordered print-
          ed, and when printed to be committed to the Committee  on  Transporta-
          tion
 
        IN  ASSEMBLY — Introduced by M. of A. SAYWARD — read once and referred
          to the Committee on Transportation
 
        AN ACT to amend the highway law, in relation to changing the location of
          highways over certain lands owned and occupied by  the  state  in  the
          Adirondack park
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 212 of the highway law, as amended by  chapter  161
     2  of the laws of 1988, is amended to read as follows:
     3    §  212.  Changing  location  of  highways over certain lands owned and
     4  occupied by the state. 1. If a highway  passes  over  or  through  lands
     5  wholly  owned and occupied by the state, the location of such portion of
     6  such highway as passes through such lands may be altered and changed, or
     7  the same may be abandoned or the use thereof as a  highway  discontinued
     8  with the consent and approval of the state authority having jurisdiction
     9  or  control  over  such  lands  by  an  order  directing  such change in
    10  location, abandonment or discontinuance.  Such  order  shall  contain  a
    11  description  of  that  portion  of the highway the location of which has
    12  been changed, abandoned or discontinued, and a description  of  the  new
    13  location  thereof, if any, and shall be filed in the office of the state
    14  authority having control of such lands.
    15    2. The provisions of this section shall not apply to any highway with-
    16  in the Adirondack park, as defined in subdivision one of section  9-0101
    17  of the environmental conservation law.
    18    § 2. This act shall take effect immediately.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01285-01-1