By KIM SMITH DEDAM
Staff Writer
April 30, 2008 04:00 am
—
LAKE PLACID -- State lawyers are looking to British law from 1830 to make their road-closure case against Jim McCulley.
Truly.
Department of Environmental Conservation attorneys claim highway laws made in England in the 19th century direct precedent in New York.
DEC spokeswoman Maureen Wren said it is not unusual for American courts to look to English law for guidance, specifically in property issues.
"Yes, we are using English common law. It can be used to guide disputes in New York and in other states, and DEC staff used it in this instance because our argument relating to abandonment is not covered in existing provisions of state highway law."
McCulley, president of Lake Placid Snowmobile Club, has driven motor vehicles on Old Mountain Road in North Elba, claiming the town never formally abandoned the road.
DEC ticketed McCulley for alleged violations in 2002 and 2005.
A three-day hearing last fall brought the long-standing dispute before an administrative law judge.
BRITISH LAW
Briefs filed this month by DEC attorney Charles E. Sullivan date public rights-of-way definitions to England, where three types of traffic were allowed on roads: foot traffic; a prime and pack way for pedestrian and horse traffic; and a carriage way for pedestrian, horse and vehicle traffic.
One use could be discontinued in Queen Victoria's era without closing the road to the others. The idea here is that while Old Mountain Road is closed to motorized traffic, it justifiably remains open to skiers, hikers and horses.
No such precedent exists in New York, according to Sullivan's brief.
ARGUMENT ABSURD'
McCulley's attorney, Matthew Norfolk of the firm Briggs, Norfolk in Lake Placid, responded with disdain.
"With only her majesty's law in hand, (DEC) staff now argues for the first time since the Old Mountain Road dispute between DEC and Mr. McCulley began in 2002 that New York state town roads or public highways consist of a bundle of various types of rights."
Norfolk calls the "new-found theory" undoubtedly "inventive and novel. Nonetheless, it is absurd and deplorable. As staff rely on law of another country, they shrug off and ignore the common law created by the courts of the state of New York."
Norfolk said DEC used English law because "there's no New York law that supports their position."
Wren said nearly the same thing.
"DEC staff did search for any decisions that specifically covered issues involved in this matter and did not find a parallel to be made."
But are we subject to English law?
"No, presently we are not," Norfolk said. "But if Commissioner Grannis buys what they (DEC attorneys) are selling, we may be. They're saying because our Constitution is based on English jurisprudence, we should adopt English law. They've jumped the pond on this one."
SEEN AS DESPERATION
McCulley remained firm in his conviction of American statutes.
"It is clear that -- with the DEC attempt to now use international law to find me guilty -- even they know they have no legal leg to stand on.
"It is sad that the DEC is willing to give up the sovereignty of the United States in a clear attempt to stave off defeat of their failed land-use policies."
Taking the law beyond American soil, McCulley said, is a desperate effort.
"People should understand now that the DEC's prosecution of me has been nothing more than naked aggression by an out-of-control bureaucracy."
Grannis will ultimately issue the final decision in the case.
kdedam@pressrepublican.com
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