Easements

I have an article under review with a journal on the topic of easements, and it's something that I can spout off on for hours. Lucky you. I'll try to rein it in today, though. Today's Times-Union carries an interesting article that summarizes why they are such a useful tool for land protection.

The state Department of Environmental Conservation will pay $5.5 million from the Environmental Protection Fund for the easements, the first of three phases that will preserve 257,000 acres of International Paper Co. land from development and open it to public recreation. The remaining two phases are under contract and expected to close in 2006, DEC spokeswoman Maureen Wren said. The agreement is the state's largest conservation project.

The first phase -- 39,700 acres in Hamilton County and 1,750 acres in Franklin County -- includes 44 miles of snowmobile trails and nearly 190 miles of existing roads and trails that allow hiking and other non-motorized activity.

The public will also have immediate access to all water bodies on the tracts for fishing and canoeing, including Elm Lake, the Sacandaga River and Racquette River. As of May 1, 2.5 miles of shoreline on the Piercefield Flow will open for fishing, hiking, picnicking and camping at designated sites.

Stamford, Conn.-based International Paper stands to make $20 million to $25 million when conservation easements on all the land are sold. IP would continue logging, while the state would pay about one-third of its property-tax bill and enforce limits on public use.

The State only pays property taxes in certain areas (Tug Hill, Adks, Catskills), but the tax benefit to the owner exists whenever he/she transfers some of the ownership interest. Easements are a valuable tool for protecting land while still allowing a variety of uses. With this deal, IP raises some one-shot capital and gets a continuing tax break, while still retaining the rights to the timber on the property. Even with State oversight of the harvest practices, that is a good deal in my opinion. The problem with easements, from my perspective, arises in the non-tax-paying areas of the state, where transfering an easement removes land from the tax rolls (as transfer is typically to a non-profit which is tax-exempt). However, this isn't an insurmountable obstacle and conservation easements are an estate-planning and land-protection tool lawyers should be more schooled in understanding and using.

Winter wonderland

Semi-belated happy holidays to everyone out there. I do not expect regular posts over the course of this week, as I'm vacationing in snowy Potsdam, NY, until the end of the year. I hope everyone else is able to enjoy some time with friends and family.

Help Wanted: Heavy Labor, Light Pay

Last week, I posted two seemingly unrelated pieces dealing with "the North Country" of upstate NY. First, I was probably a bit subjective in my view of local government, and second, I questioned why local municipalities and related groups were hiring out-of-town lawyers. Here's part of the answer, from Tuesday's Watertown Daily Times: the inability to make a competitive wage in the public sector because of local government's lack of knowledge about the job market.

Not that $59,000 is anything to sneeze at-in fact, it's a pretty comfortable income in most of rural upstate. The problem is that, when not compared to the upstate median income, but to lawyer median income, it exascerbates the "youth flight" (I despise the term "brain drain", as many capable people do choose to remain upstate) because there are fewer opportunities for professional advancement. There will always be demand among lawyers, especially the newly admitted, for the ADA positions. The difficulty comes when the attorney reaches that point where they are experienced enough advocates to make the transition to a more lucrative position, which is by definition outside of St. Lawrence County.

Second, the author apparently doesn't understand "admitted to the bar" as different from "joining the bar association." Another piece for an educational campaign about the practice I law, I guess.

Lawmakers cool to Duvé pay-hike proposal for assistants
By Corey Fram
Times Staff Writer
Tuesday, December 20, 2005

CANTON -- Nicole M. Duvé created her own first hurdle as St. Lawrence County district attorney.
The Potsdam Democrat who last week said she wants to hit the ground running in January when she's sworn into office got a lukewarm response from county lawmakers at Monday's Finance Committee meeting when she asked them to increase assistant district attorneys' salaries so she could lure an experienced lawyer into the department. Lawmakers for an hour debated the move, its costs and the consequences of upsetting other employees before deciding to spend a month mulling ways to get Ms. Duvé's choice [for top deputy to the DA] on board...Her choice, a man whom she wouldn't name, has been an attorney for 20 years and has much criminal court experience.

The lawyer would share the burden of caseloads and teaching the young, less-experienced attorneys that make up the staff. Ms. Duvé, who during the campaign was criticized for not trying a case in eight years, cited the three open murder indictments in the county to convince legislators that an experienced attorney is needed.

The county pays assistant district attorneys up to $59,957 on a scale that covers 10 years of membership in the bar association. Ms. Duvé asked lawmakers to extend the scale to $65,000 for 15 or 20 years of bar membership.

Con Law meets Sports Law meets Administrative Law

Three of my favorite areas of law collide in the latest episode of the "Baby Joe" Mesi saga. The WNY boxer, at one time highly ranked and moving toward the top of the card, had been banned from fighting due to the revocation of the Nevada fight license and the requirement of Federal law that all states honor such revocations from sister states.

Mesi's legal team put forward an interesting argument: since the license is only a one-year license and expired at the end of the year, then the State Athletic Commission lacked jurisdiction to ban him based on revoking that license. This ruling doesn't mean Mesi can step right back into the ring, but it does clear the path for him to apply for a new license in any state. He'll still have to meet the high hurdle of clearance based on his medical history, which includes bleeding on the brain.

More than the WNY connection, the legal interplay here fascinates me. There are also ethical and moral questions related to the duty of the Commission and Mesi's health, but I'll leave those for the Jamestown Philospher to ponder.

Who needs evidence?

I'd be curious to know just what sort of proof was in those records, as it seems like something that either the client or the county should have been required to have in hand...but it goes to show that sometimes success can be had even without every i dotted and t crossed.

Town jury acquits Macomb man accused of illegally possessing rifle
(subscription required)

Thursday, December 15, 2005
ROSSIE -- A Macomb man who was charged in March with illegally possessing a rifle was found innocent after trial Dec. 7 in Rossie Town Court.
Robert C. Young, 45, of 40 Mitchell Road, Macomb, was charged May 9 by state police with fourth-degree criminal possession of a weapon after a state Environmental Conservation officer noticed a rifle on a shelf at a bait shop he operates...He was accused this year of violating state law that prohibits convicted felons from possessing firearms without permission from a judge.

Former Jefferson County Judge Lee Clary granted Mr. Young what is known as a certificate of relief from disabilities, giving him permission to possess a rifle in order to hunt, according to defense attorney Steven G. Ballan, Potsdam. And, while neither Mr. Young nor clerks at Jefferson County Court were able to find the certificate, his prison parole records confirmed existence of the certificate to the jury's satisfaction, according to Mr. Ballan.

"No contact" means "no contact", even for justice

Any story involving domestic incidents is always a sad tale and even disproved allegations can have terrible effects on a family. I'm posting these snippets just to point out a fact involving restraining orders and orders of protection: much as the public service announcement of my college years advertised, "no means no." As in this case, if the court says to stay away from the complainant spouse, make sure your client stays away or the charges just keep multiplying. Even if your client is a judge himself...

Town Justice Jeffery P. Wick will be on the other side of the bench and runs the risk of losing his judgeship after being arrested on misdemeanor domestic-violence charges.
Wick, 31, who is completing his second year as town justice, was arrested by a Niagara County sheriff's deputy Friday and charged with second-degree menacing and second-degree harassment. His wife, Andrea L. Wick, 31, accused him of a long series of physically and verbally abusive incidents.
Justice Bruce M. Barnes of the neighboring Town of Newfane arraigned Wick and granted his wife an order of protection. But Wick returned to the couple's Quaker Road home Monday, asking for changes in arrangements for him to see the couple's four children, all younger than 9. Wick's wife said that the conversation was civil but that it also was an apparent violation of Barnes' order to stay away from his wife. As a result, Wick was arrested again and charged with second-degree criminal contempt of court.

Jamestown

The question has been posed as to why this Jamestown lawyer does not have a predominance of Jamestown news on his site. The answer is that I can access for free various North Country/upstate tv station websites and newspaper websites, but my coverage of this area depends on whether the Buffalo News writes about Jamestown. I will endeavor to cover Chautauqua legal news, but it's been far less available than I had hoped.

Shop Local Lawyers

One last note from reading today's Watertown paper:

There's an ongoing lawsuit, filed by some anti-Walmart folks, using counsel from Syracuse. The town has moved for a change of venue, through their Syracuse-based counsel. Syracuse is roughly 2.5 hours (144 miles, according to Mapquest) from Potsdam. I understand the attraction of the larger law firms with their near-infinite resources, but I'm also saddened that people so worried about local economics (on both sides) are quick to rush out of town for legal services.

Champion: Spilled milk and still spilling tears

Another article in today's Watertown Daily Times, "Wary legislators reject including rivers in Open Space plan" demonstrates the sort of rampant ignorance about State land acquisition and land preservation law that is the hallmark of local government in St. Lawrence County. While still lambasting the "Champion land 'steal'" in which New York State followed all the relevant laws and bought land from a willing seller at a steep price, the legislators again try to revise history to make this an upstate/downstate issue. In the words of County Legislature Chairman Thomas Nichols, "They're getting more creative at coming in and trying to sucker the locals and county government into giving up control of land," Mr. Nichols said.

Balderdash, as I will say in a professional column. This is land, for the most part, with limited development potential due to location and characteristics. It's traditionally forested land formerly owned by a timber company. The vast majority (110,000 acres) of the Champion lands are held under conservation easement and can still be logged by sustainable forestry methods and, with amendments to the easement document, opened for any public use imaginable. The State bought 29,000 acres, mostly along river corridors and the Massawepie Bog. Yet it's the same revisionist claptrap with no basis in fact or law. The leaders are still steamed that they did not get consulted about the State-level deal and that a number of hunting camps lost their exclusive use of the lands.

I formerly worked for an environmental non-profit. I have strong feelings in favor of certain ways to preserve open space. I am also open to discussion about the best way to utilize and develop appropriate areas within the Adirondack region. The issue that steams me is that Mr. Nichols and others do not want an open dialog on the issue--the goal, in my opinion, is to create "straw man" arguments and ramp us the "us vs. them" because that's what leads to reelection, if not forward-looking leadership.

ATVs: Economic boon?

I keep coming back to this because of it's of both personal and professional interest to me. A story in today's Watertown Daily Times emphasizes the economic benefit of ATV access to the region.

Among the findings:

The study estimates that 26,800 visiting ATV riders annually spend a combined
478,068 days in the region, which includes Jefferson, Lewis, Oswego and Oneida
counties. During that time, they spend $23.07 million -- or $48.25 per person
per day -- on lodging, food, gasoline, equipment, transportation and other
purchases.

I'm all for economic development in the North Country. I just always have to be skeptical when I see studies by snowmobile/ATV advocates about the huge benefits of their hobbies. These studies never seem to incorporate the local nature of the recreationists and also don't include a comparison of the costs advertising and maintaining the recreational opportunity, nor tradeoffs that result from having trails open to motorized recreation (ie, when I lived in Potsdam-area, I couldn't even cross country ski on the trails behind my parents' house, as I did as a kid, due to snowmobilers who find it fun to make runs at skiiers). In short, I'm all in favor of anything that creates jobs and a stable economy--but not when it creates negative impacts in other areas of the local quality of life.

On a legal note, the last paragraph of the article states:

Lewis County legislators later this month may rescind the 2001 law opening
portions of 39 county roads to ATV traffic because of such "other information,"
namely an informal opinion from the state attorney general's office suggesting
that most of those roads were not opened in compliance with state law. A public
hearing is set for 10 a.m. Dec. 20.

Related issues have been happening in St. Lawrence County, as well, where legislators and councils opened roads to recreational traffic without regard to state law or the concerns of property owners worried about the increased traffic.

Forbes v. Blogs

Interesting article in a recent edition of Forbes magazine I stumbled upon (Nov. 14, 2005 print issue, sorry but I can't find an online article). The gist of the article was that a subset of bloggers tend to pick on a business and/or business owner, with charges real and imagined, and that said businesspeople are without any recourse against this powerful new technology. Which, of course, ignores whole volumes of law regarding defamation and publisher liability in a rush to paint a dire situation.

Libel and slander, on the internet or on the street, are obviously a problem for a business trying to build a reputation and goodwill. The article does have a good suggestion for businesses, in the form of utilizing "searchers" who scour blogs for mentions of the company. This is a task any technologically competent attorney ought to consider doing for existing clients or offering to new intakes. An attorney couldn't ethically create a flame war with bloggers or posters, but most certainly I/we could respond to attacks in a professional manner to safeguard a personal or business reputation.

Adirondacks

Story in today's Plattsburgh Press-Republican picks up on a story from last year. It seems a local snowmobile enthusiast has developed a method of civil disobedience to contest Department of Environmental Conservation road/trail classifications. He drives the roads, gets ticketed, and takes the issue to the courts. Now he's filed in Federal court, disputing a DEC administrative proceeding regarding his use of a truck in land classified as "Wilderness" under the Adirondack Park Agency land use and development plan.

This is a very interesting ongoing saga for Adirondack advocates of all stripes. The DEC and APA haven't been nearly proactive enough, in my opinion, in keeping regulations current and in actually knowing what roads and trails are out there. The result is a lot of peeved interests on all sides who feel slighted by use/nonuse decisions.

Student Loan Debt

Student loan debt...a topic I'm very familiar with after ten years of higher education. One that brings a tear (or a dozen) to my eyes each month as I wrote those checks. I'm not usually one for consumer law issues, but this article in today's NY Times caught my eye. Student loans are already non-dischargable (for the most part) under the bankruptcy laws, and now the Supreme Court has held that Social Security funds can be dipped into to repay defaulted student loans more than ten years old.

This ruling was caused by a split in lower courts regarding whether or not there was a ten year limit on tapping SS funds for defaulted loans. Under a 1996 law, as related in the Times story, only a certain about of SS funds are totally exempt (as all the funds once were). The top court held that the ten year period did not apply and collection could proceed.

Contempt in Cali

Followup on my civility post from a day of so back: as noted and discussed at My Shingle, a California appellate court recently sanctioned an attorney $1,000 and referred her case to the ethics board after a ranting, accusatory brief was filed with the court. As stated on My Shingle, all attorneys should make a distinction between attacking an argument and attacking a person. Hopefully this is an ethics trend that catches on, nationwide.

In one part, the Court states:

"It appears to us that Koven's approach to litigation focuses upon impugning the
integrity of everyone in the legal system, whether judges, justices, attorneys
or expert witnesses, who obstruct the achievement of her goals," the court
ruled. "This shows a pattern of abuse which serves to aggravate the contempts
committed here."

FIRE

Anyone interested in Con Law issues related to education, especially higher education, ought to check out the Foundation for Individual Rights in Education. FIRE's last letter to me came adorned with a Ronald Reagan stamp, which might give some indication of the overall ideology and perspective on various issues. Partisan sentiments aside, though, they provide a great resource for tracking the hot button issues and hot spots in First Amendment law.

My First Court Appearance

Some of you might have noticed there was briefly a lengthy tale of woe posted here, detailing my first court appearance as a licensed attorney and making a heartfelt call for civility in the practice of law. In the interest of civility, though, I decided as censor to yank the piece (have I violated my own First Amendment rights? Discuss.) as I couldn't be as objective as I wanted to be on the issues I was trying to raise.

I will, though, repeat some of what I wrote about civility. If you're an old pro, please don't give the rookies a hassle just because they are new. This "hazing" is something I was told to expect and something I experienced, and it really has no place in an interaction between professionals. If you're a young turk and someone's treating you poorly, don't save up the resentment to unleash on young(er) associates at a later date. I'm not trying to suggest someone shouldn't be a zealous advocate. If you're up against a rookie who makes errors damaging to the case, it's your duty as an advocate to move on those errors. It's not right, though, to argue points contrary to the law or to threaten sanctions, hoping to put fear and confusion into a new attorney merely to put him or her in a bad situation. That's the sort of incivility and poor behavior that has had a major role in damaging the profession and creating a situation where we are not regarded as learned professionals, but as pit bulls who will attack anyone when paid the proper amount. No offense to the pit bulls, of course.

Priced Out

An article not really fitting with the Chautauqua theme, but of great personal interest and tying in with my practice of Adirondack Park law. Today's Utica Observer-Dispatch interviewed North Country journalist Brian Mann on the ongoing trend where locals are being priced out of Adirondack communities.

I've been doing some work on this issue for an Adirondack client, and it's a big problem. It's also not a good sign for those that might have made a living in those communities, ie, the local solo practitioner. In my MS thesis, I looked into the sense of community in a couple Adk towns, and I found that this housing issue was a problem nearly ten years ago when I was doing my fieldwork. As a lawyer trying to build a regional practice, I see it even more clearly on a limited scale. Fewer full-time local residents means a decrease in the population that needs one's services. Fewer residents also decreases the ability of the schools to offer a decent education, which has continuing impacts on the local lawyer (or on the chances of the kids to be that next local lawyer). As an Adirondack friend once said to me, "DWIs and divorces" are the lot in life of the local residents and the attorneys trying to carve out a living.

Local Firms

I've added a new link category on the right for local law firms. If you would like your firm listed, drop me an email. I'm not going to moderate who makes the list, other than requiring an office within the region.

Followup on Student TV story

Today's Daily Orange (the SU newpaper) has a followup story on a state college (a branch of the Univ. of California system) where a student aired some homemade pornography on the student-run television network. The author of the SU story may not have a complete grasp of the intricacies of Con Law in this area, but few besides A. Scalia or L. Tribe probably do, and chances are they'd disagree on it anyway. If I were to draw practice implications from this story, I think the moral of the story would be about how First Amendment protections always need to be a consideration when a practitioner is dealing with student discipline related to any speech/expression issues. Perhaps that is self-evident, but some behaviors (ie, producing and airing homemade pornography on a college station) are repugnant enough that it may be up to the attorney to be the cooler head and work through that angle when administrators are dealing with upset students, parents and alums looking for immediate resolution and heads on the chopping block.

Privacy and School

Interesting story in today's NY Times. Straight A student with no disciplinary record gets in trouble a couple of times for the old fashioned PDA (public displays of affection, for those of you in the Palm Pilot generation) and the principal calls her parents. Issue here is that it was homosexual PDA and she had not come out to her parents as a lesbian. The student was effectively outed by the principal's call. Student has then sued, claiming a privacy right was violated. I don't know enough about the relevant facts at hand here to pontificate, but I think it might be a case worth following, as the interest groups and public interest law firms aligning on either side are the sort that might litigate this to the Supreme Court.

Student Speech & Due Process

Continuing on today's college-themed posts: a day before I planned to show some "Chappelle Show" skits (ah, irony) in my Jamestown Community College class, news from Syracuse University regarding the cancellation and uncancellation of the student-run television station. This article doesn't detail what was aired that was offensive and/or discriminatory. It does (by implication, mostly) raise some interesting questions about where the Freedom of Expression lines could be drawn and how those decisions could be made. As a private school, SU has much more freedom than a SUNY school to regulate student activity. Private school-student relations have generally been viewed as more contractual in nature, where, conversely, Constitutional rights are implicated when a public school takes action, as it is an arm of the State. The due process granted to the TV execs here frankly surprises me, as private schools have much more latitude to decide disciplinary issues unilaterally. It sounds as if the students were given an opportunity to be heard and to present a case to the panel of faculty. That's commendable, from my perspective on civil rights, and also as a lawyer in the field--it clearly creates a record of action, following a set policy, which would be invaluable for the college to prove it isn't imposing prior restraint, but instead dealing with a disciplinary issue.

FERPA in the news

A recent article (http://spectrum.buffalo.edu/article.php?id=23779) in a local college paper mentions a little-known but very important law: FERPA. Anyone involved in education law or higher education discipline (a niche field in admin law where I've had some experience) should already be aware of the Family Education Rights and Privacy Act (20 USC 1232g), which is fairly strict as far as how and when identifying/personal information can be released by an educational institution. The law affects any school receiving federal funds and grants parents or students over 18 authority to review, correct, and control disclosure of educational records. In this case, it's discussed in terms of military recruiting of students and the required release of personal information under another provision of federal law. For attorneys with a case that involves a school (to make up a random example, a PI playground injury case) it might be worth checking FERPA out to learn what the parameters are for using, obtaining and sharing information.

A Jamestown Lawyer posts...

Greetings to all.
Welcome to my first attempt at blogging. I'm TM, and I'll be your guide on this journey. I am a lawyer in Jamestown, New York, which you might have guessed from the title. You can check out my business website at (edit: job change leads to link removal). I've been practicing since March 2005, and much of what I have to write will concern things that have caught my eye as a new lawyer.

Like many solo or small firm lawyers, my practice ranges across various areas of the law, which you'll see reflected in the practice-related articles and thoughts I post. I hope this blog can become a resource for general practitioners and law/politics-interested folks in the Chautauqua Region and environs.