Monday, February 25, 2013

Why PROTECT Is Going To Court Over Connector Trail

MRP-Snowmobile-Trail-3Why PROTECT is suing the state over its policy, design and construction of new road-like snowmobile trails

Protect the Adirondacks has started a new lawsuit against the NYS Department of Environmental Conservation (DEC) and Adirondack Park Agency (APA) to challenge recent snowmobile policy and trail construction practices in the Adirondack Forest Preserve.

The lawsuit contains two parts: 1) allegations that the construction by the DEC of new 9-12-foot-wide “class II community connector” snowmobile trails violates the “Forever Wild” clause of the NYS Constitution; and 2) allegations that the DEC and APA violated the Adirondack Park State Land Master Plan (SLMP) and DEC regulations by authorizing the mechanical grooming of snowmobile trails with large tracked groomers.

This past fall the DEC and APA embarked upon a major new program of building a road-like snowmobile trail system through the Forest Preserve, it’s class II community connector trail system, which will be groomed by large, bulldozer-sized groomers.

PROTECT has long opposed the direction of the state’s class II community connector snowmobile trail program in the Forest Preserve. We have raised these objections consistently through the years. During the development of the DEC’s Snowmobile Plan for the Adirondack Park, I and many others argued that the new class II community connector snowmobile trails violated the SLMP and were unlikely to be built in a way that did not violate the state Constitution.

As the state geared up for a major construction boom for these new road-like snowmobile trails, PROTECT objected to state policies authorizing these trails and to what we believe are the illegal ways that the state designed, built, and grooms these trails.

See PROTECT’s field observations on the construction of the new Seventh Lake Mountain Trail in the Moose River Plains. See PROTECT’s policy discussion about the state’s violations of law in the design and construction of this trail. See PROTECT’s opposition to the approval of the Management Guidance by the APA.

Seventh Lake Mountain Multiple use Trail (Moose River Plains Connector)Before I walk readers through the main points of PROTECT’s lawsuit, it’s important to note what this lawsuit is not about. Readers should note that this lawsuit is not seeking to prohibit all snowmobile use in the Forest Preserve. It is not seeking to prohibit all use of motor vehicles in the Forest Preserve. This lawsuit concerns only what we believe are the illegal ways the state has chosen to build and groom its new type of class II community connector snowmobile trails. PROTECT’s lawsuit is carefully and narrowly focused on a violation of the State Constitution and violations of state law and rules.

The constitutional lawsuit alleges that the design and construction of class II community connector snowmobile trails violated the state Constitution. PROTECT’s principal objection has been that the 9-12-foot wide class II community connector snowmobile trails are basically roads. These so-called trails require a high level of construction that changes the terrain and character of the Forest Preserve where they are built. These trails are graded, flattened, and widened with heavy machinery, rocks are removed, trees are cut down, all understory vegetation is destroyed, oversized bridges are built, gravel is used on the bed of the trail, bench cuts are regularly made into side slopes, and bedrock is chipped away. This is all work that goes well beyond what is required for the construction of a foot trail or even a lesser snowmobile trail.

Article 14, Section 1, of the NYS Constitution reads, in pertinent part:

The lands of the state, now owned and hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.

PROTECT’s lawsuit alleges that DEC’s cutting of more than 2,200 trees over the 11.9 miles of the new class II community connector snowmobile trail, the Seventh Lake Mountain Trail, in the Moose River Plains Wild Forest area of the Forest Preserve violated the state Constitution’s prohibition on tree cutting. Whereas prior case law has found some limited tree cutting on the Forest Preserve in furtherance of state management to be acceptable, PROTECT believes that the amount of tree cutting for the new community connector snowmobile trail exceeds permissible limits. PROTECT is not saying the state can never chop down a tree, but the work done on this new trail goes far beyond what is legal and acceptable.

In addition to the new class II community connector snowmobile trail built in the Moose River Plains, DEC has already approved work plans for similar trails in the Wilmington and Jessup River Wild Forest areas, which will also require cutting hundreds of trees.  PROTECT estimates that the entire community connector trail system planned by DEC in the Snowmobile Plan will result in cutting over 8,000 trees and clearcutting almost 50 acres of the Forest Preserve.

In 1930, the New York Court of Appeals struck down the state’s plans to build the “bobsleigh run” for the 1932 Winter Olympics on Forest Preserve land because doing so would have required destroying over 2,500 trees and clearing 4.5 acres of Forest Preserve. DEC’s plans for the new class II community connector snowmobile trails go far beyond that, making these plans unconstitutional.

PROTECT’s predecessor, The Association for the Protection of the Adirondacks, was the plaintiff in that 1930 case; Association for the Protection of the Adirondacks vs. MacDonald. Similar issues were addressed in the case of Balsam Lake Anglers Club vs. DEC in the 1990s.  The Association case is often referred to as setting the standard for showing that an action violates Article 14, whereas the Balsam Lake case is cited as a case where the state’s action was permissible.

In addition to the illegal tree cutting, PROTECT alleges that the Forever Wild clause of the Constitution was violated by the widening, clearing, grading, flattening, clearcutting the understory, rock removal, destruction of bedrock, bench cutting, use of gravel, and over-sized bridge building involved in creating the new class II community connector snowmobile trail in the Moose River Plains. We believe that the excessive alterations to the Forest Preserve in what is basically a 12-acre clearcut that snakes through the Forest Preserve, violates the constitutional mandate that these lands are to “be forever kept as wild forest lands.”

Moose River Plains-largeThe second legal challenge is the Article 78 claims about illegal grooming activities that violate the State Land Master Plan and DEC regulations by allowing large motor vehicle tracked groomers on designated “trails”.

In addition to violations of the state Constitution, PROTECT believes that the way the state has chosen to groom the new class II community connector snowmobile trails violates the SLMP and DEC regulations. This is important because the way that the state plans to groom class II community connector snowmobile trails dictated the way they were designed.

PROTECT’s lawsuit includes claims under Article 78 of the Civil Practice Law and Rules (CPLR) that the DEC and APA violated the SLMP and DEC regulations when they authorized the use of large, multi-ton, tracked groomers on designated “trails” on the Forest Preserve. PROTECT believes that state law provides that the only motor vehicles allowed to operate on “trails” are snowmobiles on designated snowmobile trails. All other motor vehicles are prohibited from operating on “trails” and must operate only on designated “roads.”

The SLMP is very clear that the only motor vehicles allowed on snowmobile trails are snowmobiles. Yet, the new class II community connector trails are being built like roads, with all sorts of damage to the Forest Preserve, so that they can handle the large groomers. PROTECT believes that these trails are designed and built for an illegal use – being groomed with large tracked groomers. If these trails were built to be groomed by snowmobiles pulling drags, there would not have been nearly so many trees chopped down and the trail could have been built more like a trail rather than a road.

DEC regulations make the same distinctions. DEC has ignored its own regulations in furthering its new snowmobile trail building program. Click here for a more complete discussion of violations of the SLMP and DEC regs.

If these trails had been designed and built to be groomed by snowmobiles pulling drags, which PROTECT thinks complies with the SLMP and DEC regulations, then PROTECT would not be in court.

But the APA and DEC chose a different, more destructive path to take, despite longstanding opposition from across the environmental community for a decade or more.

PROTECT’s case raises important issues that have not been decided in other recent legal challenges to the state’s snowmobiling program. Since 2006, there have three other legal challenges to the state’s management of snowmobiling on the Adirondack Forest Preserve. One was settled and in two others the state prevailed. Those two cases, as shown below, were substantively different than PROTECT’s new lawsuit.

Prior to discussing these three cases, it’s important to note that the fact that four lawsuits have been filed in the last eight years shows that the DEC and APA’s program snowmobile management has been highly controversial.

In 2006, four groups, including The Association for the Protection of the Adirondacks and Residents’ Committee to Protect the Adirondacks (the two predecessor organizations of PROTECT), the Adirondack Mountain Club and The Adirondack Council (TAC), sued the DEC and APA over the APA’s adoption of the Jessup River Wild Forest UMP, focusing on the use of large tracked groomers on designated trails. The lawsuit was settled, with the APA withdrawing approval for groomers on those trails in that Wild Forest area.

It’s important to note that the issues that PROTECT is litigating today relate back to DEC and APA’s actions in 2006. Little has changed, other than the state finalized the Snowmobile Plan and the APA approved its Management Guidance. Rather than attempting to find ways to make class II community connector snowmobile trails lawful, both agencies determined to simply to bulldoze their opponents.

In 2009, The Adirondack Council sued APA and DEC for approving the Management Guidance.  That case was dismissed on appeal in 2012 on the grounds that the Management Guidance was only a non-binding advisory document.  In 2010 The Adirondack Council sued again, this time over amendments to the Jessup River Wild Forest UMP. The lawsuit challenged certain new criteria for the siting of new snowmobile trails, and was dismissed in 2011. The Council did not appeal.

Moose River PLains Road Signs (Dave Gibson Photo)PROTECT’s case breaks new legal ground. None of the three prior cases raised the Article 14 issue that PROTECT now seeks to raise. The trail grooming issues that PROTECT will raise were not part of the Council cases that were dismissed. They were part of the 2006 case, but were never ruled upon by the court because the state agreed (temporarily, as it turns out) to halt the use of large groomers in the Jessup River Wild Forest.

The DEC Commissioner Joe Martens has chided opponents of road-like snowmobile trails in the Forest Preserve. In its celebratory news release on the opening the controversial new Seventh Lake Mountain Trail, Martens chided PROTECT and others by stating “I applaud the efforts of staff from DEC Divisions of Lands & Forests, Operations and Forest Protection, staff from the Adirondack Park Agency, and partners in the communities who provide leadership to coordinate these efforts. While there are a limited few who refuse to see the forest through the trees and how sustainable communities benefit both the Adirondack Park and the local economies, our many partners in this project demonstrate the broad-ranging support for this new trail.”

It should be pointed out that Marc Gerstman was the attorney who represented the Adirondack Council in its lawsuits. Gerstman is now the #2 at the DEC, where he serves as the Executive Deputy Commissioner under DEC Commissioner Joe Martens. Apparently Mr. Gerstman’s ability to see the forest through the trees remarkably improved upon walking through the doors of DEC headquarters in Albany.

There are many sides to this issue. The Forest Preserve is far too important to be used as some kind of bargaining chip by the DEC and the state.

The DEC Commissioner has been building a lot of road-like snowmobile trails through the Forest Preserve, but he hasn’t been putting in much time making good on DEC pledges to complete a snowmobile impacts study. The DEC pledged in the Jessup River Wild Forest UMP in 2010 to conduct a “Study on snowmobile use and impacts in the Speculator/Piseco area” but this, unfortunately, has never been done. This study, like many important studies scheduled by the DEC over the years and never completed, would provide useful information for Forest Preserve planners, the snowmobiling community, and those who care about the Forest Preserve.

It’s too bad that the DEC can’t manage to complete this study – or that the APA hold the DEC accountable. DEC complains of a lack of resources. The problem is not resources, it’s leadership.

PROTECT’s lawsuit is narrowly constructed. It does not challenge snowmobiling or motor vehicle use in the Forest Preserve or the use of large groomers on roads. In PROTECT’s view it is allowable for Adirondack communities to be connected by snowmobile trails. They just should not violate the state Constitution, State Land Master Plan, and DEC regulations when doing so.

As stated at the beginning of this post, it’s important to note what this lawsuit is not about. It is not about eliminating the use of snowmobiles on the Forest Preserve. It is not about eliminating motor vehicle use from the Forest Preserve.

This lawsuit does not challenge the constitutionality or legality of the use of motor vehicles in general, or snowmobiles in particular, in the Forest Preserve. PROTECT believes that if these new trails were built without significant tree cutting or alteration of the land, and were only to be groomed by a snowmobile with a drag, they could be legal.

The class II community connector snowmobile trails were built like roads because they were built to handle large multi-ton tracked groomers. The entire premise of these new class II community connector snowmobile trails is that they are being built like roads in order to accommodate large groomers. Only snowmobiles are supposed to be operated on trails. Groomers should only be operated on roads. That’s the crux of the issue.

If the APA and DEC were serious about meeting the letter of the law on these matters, they would undertake an amendment of the SLMP. This would require a public hearing process and an Environmental Impact Statement (EIS), among other legal procedures. DEC and APA have skirted a full-blown SLMP amendment through enactment of the Snowmobile Plan and Management Guidance, but both of these documents are trumped by the SLMP. It’s clear neither agency believes in the merits of their position strong enough to undergo the public scrutiny involved in a SLMP revision.

Here are links to important legal documents:

Appellate Division Memorandum of Law

Appellate Division Notice of Motion

Appellate Division Affidavit from John Caffry

DRAFT Article 14 Complaint and Article 78 Petition

Photos: Above, one of the connector trail’s 12-foot wide snowmobile bridges under construction in 2012; middle, a map of the new Moose River Plains Connector Trail, designated by DEC “Seventh Lake Mountain Multiple Use Trail”; third down, a map of proposed facilities in the Moose River Plains from 2000; and bottom, the junction, Limekiln Lake-Cedar River Road, Moose River Plains Wild Forest (Dave Gibson Photo).

Peter Bauer

Peter Bauer

Peter Bauer is the Executive Director of Protect the Adirondacks.

He has been working in various capacities on Adirondack Park environmental issues since the mid-1980s, including stints as the Executive Director of the Residents' Committee to Protect the Adirondacks and FUND for Lake George as well as on the staff of the Commission on the Adirondacks in the Twenty-First Century and Adirondack Life Magazine.

He lives in Lake George and Blue Mountain Lake with his wife and two children and enjoys a wide variety of outdoor recreational activities throughout the Adirondacks.



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33 Responses

  1. adkcamp says:

    It is important to note in all this reading that Protect! is NOT going after the use of snow mobiles in the Park.

    Like or Dislike this comment: Thumb up 2 Thumb down 1

  2. Paul says:

    What are the designations for the state land that has Whiteface and Mt. Van Hoevenberg where we are running tracked groomers now? Just put the same designations here on this land. This is basically what Protect is asking for. One simple resolution to the case would be that. I am sure all parties to the suit are looking for an amicable resolution. You could groom the trails with a groomer behind a snowmobile but that would probably not be too efficient. Didn’t this one connector eliminate more miles of trails than it created? Sounds like a reasonable balance.

    Well-loved. Like or Dislike: Thumb up 11 Thumb down 1

  3. Tony Goodwin says:

    Whiteface, Gore and Bellayre ski areas are authorized by a constitutional amendment as was the Adirondack Northway where it used forest preserve lands. Mount Van Hoevenberg X-C Area is designated “Intensive Use” as are the numerous campgrounds that sit on forest preserve. The bob/luge run is on Town of North Elba land that is leased by NYS. The 1930 suit regarding the building of the bobsled run (on Scarface) referenced by Peter Bauer was pushed forward in part to clear Godfrey Dewey (organizer of the 1932 Olympics) of any accusations of self dealing since he (actually his Lake Placid Club) owned Mt. Van Hoevenberg. He wanted people to see that he tried an alternative before selling the land, even though I believe Mt. Van Hoevenberg was the preferred site from the start. I believe they also looked at the north side of Mt. Jo.

    Like or Dislike this comment: Thumb up 0 Thumb down 0

  4. Paul says:

    Tony, thanks.

    It seems to me that if we are going to allow snowmobile use on state land than the trails should be designed and constructed in a way that minimizes environmental impacts while still addressing issues such as safety etc. I don’t do any snowmobiling myself anymore but it seems like the sleds we see today are not the pokey things we had back when some of the regulations were originally drafted and this maybe an effort to get with the times.

    Peter, you say that this particular suit is not about prohibiting all snowmobile use in the park. Sure, but why does Protect support any snowmobile use in the park on state land? Does your group? Maybe your group does not and you are just pointing out that this particular suit is not geared toward that. Where I was rabbit hunting this past weekend there was all kinds of noise from the snow machines cranking through that area (not on any of these newly designed trails). I find it hard to believe that any environmental organization supports any of that kind of use of state lands??

    Like or Dislike this comment: Thumb up 5 Thumb down 2

  5. Paul says:

    From the ASLMP:

    “30. Snowmobiles–a motor vehicle
    designed solely for travel on snow or ice by
    means of a combination of tracks and a ski
    or skis.”

    IT seems like tracked groomer would meet this definition?

    These trails (despite their width) would definitely not meet the criteria for a road. At least not a road as we define one today (even an unimproved dirt road).

    Well-loved. Like or Dislike: Thumb up 5 Thumb down 1

  6. Paul says:

    Peter this is all pretty confusing. Here it appears that you document where even the class II trail does not provide adequate protection for things like wetlands, and then you want to eliminate the construction of the higher grade trails through and action like this?:

    http://www.protectadks.org/wp-content/uploads/2013/01/MRPTrailReviewJanuary2013-2.gif

    What is it that you guys really want?

    Like or Dislike this comment: Thumb up 2 Thumb down 1

  7. M.P. Heller says:

    Peter you did much better and worthwhile work when you were with the FUND. If you keep heading down the road you are on donations to your group will dry up and you will be heading for the unemployment line. Wake up, wise up, and go back to doing the type of quality preservation work you have done in the past. PROTECT! is going to lost this case. There is no way they can win it. The money used to fight this losing battle would be much better put to use in a constructive fashion rather than poured down the drain in an idoeologial battle that can’t be won. I will never give a dime to PROTECT in the future if they keep on fighting the wrong battles. Sorry Peter, you are way out in left field here and the courts are going to deal you an embarrassing loss.

    Well-loved. Like or Dislike: Thumb up 10 Thumb down 3

  8. Mitch Lee says:

    Peter
    First I want to commend you for standing your ground from day one on “Your” Definition of the SLMP. But I have to say that a great many minds came together to find a solution to snowmobile traffic in the park.
    The UMP for the Moose River Plains Wild Forest was a long and drawn out process and it came out in favor of so many eco tourists and preservationists.
    Secondly I want to say that Hiking Trails in the Park are often moved to make reroutes around new beaver dams, to alleviate hard wear on upslope and to accommodate less impact, or better parking areas.
    With that are we to say that this single form of Eco tourist “Snowmobiles” should not offer to give up interior trails for new community connectors?
    In primitive areas the DEC is closing some sites that are too large and close to the water to make way for new Camping sites further apart from one another and better for the forest preserve. Think of all the trees cut for these reroutes and sites that are for best practice.
    Thirdly I think that this lawsuit will really make it difficult for the DEC, and all Eco tourists to move forward with good stewardship. It will cast a negative on Good organizations that are involved in park wide stewardship.
    What mountain bike Stewards will want to do trail work if they are afraid you will sue them, what hiking organization will try to make a head wall at a bridge 6 miles deep in the forest preserve knowing you will be there to sue them.
    Fourthly I am not saying that PROTECT should not be watchdogs for the Park, they should and they do have the right to have a voice, but there have to be compromise for the benefit of good stewardship moving forward.
    I think if PROTECT wants to change the way eco tourist build trails, then work with the DEC on better measures for construction in the future. Use your site visits as a method to make all stewards better at construction in the future. To go to a DEC job site and use scare tactics to get a law suit will only create an us and them atmosphere.
    Please this is in no way telling you how to run your programs at PROTECT, I just want to keep the stewardships and bet practice in place.

    Well-loved. Like or Dislike: Thumb up 9 Thumb down 0

  9. Dave says:

    When this12 mile trail opened, didn’the atate close 42 miles of other snowmobile trails? Can someone ell me the right numbers? I recall thinking it looked like a great tradeoff, no?

    Like or Dislike this comment: Thumb up 2 Thumb down 0

  10. a says:

    If you dig into this case, it’s highly misleading.

    Nowheres in the case does PROTECT! detail what amount of timber grade trees, greater then 3″ will be cut. There is a prohibition on a cutting of an excessive number of timber grade trees, but there is no prohibition on the cutting of brush, assuming the brush is left in general vicinity in which it is cut from.

    The 3″ number is a big deal in constitution. That is the gold standard in MacDonald (and also Balsam Angler Club). If the DEC is solely removing just brush and non-timber grade trees — or only very minimal timber-grade trees, then the routing is constitutional.

    If most of the snowmobile trails follow old woods roads, and what is being removed is brush, then I don’t see any constitutional issues per se.

    Like or Dislike this comment: Thumb up 3 Thumb down 2

    • M.P. Heller says:

      Agreed. PROTECT! is engaging in a highly misleading campaign. Thats why they will ultimately lose badly in court and in the process waste valuable donated funds in the process. If they continue to mislead and fight the ideological battle they deserve to be marginalized and further isolated into the radical group they are recently being labeled as. Its unfortunate because they have the power to fight the good fight instead.

      Peter did great work here in the Lake Geroge basin when he was at the FUND. Lets hope this was just a momentary lapse and he will go forward doing better things. Otherwise PROTECT will likely fall apart (once again) and no longer have a respected voice.

      Like or Dislike this comment: Thumb up 4 Thumb down 2

  11. Peter Bauer Peter Bauer says:

    Thank you all. Good questions and comments.

    Lets start from the top.

    Penn: This is about management of the Forest Preserve and compliance with existing laws. We believe that the DEC and APA management is poor and violates existing law. Motor vehicles are allowed in the Forest Preserve under certain conditions in certain locations under current law.

    Paul (1): Gore Mountain, etc., are Intensive Use areas. The SLMP enumerates the ways that IU areas are different from other areas. Moreover, as Tony points out, they all had Constitutional Amendments to cleanly authorize various uses.

    Tony: Thanks for the history, spot on as always.

    Paul (2): PROTECT has no position at this time about whether or not snowmobiling is something that should continue on the Forest Preserve. All we have focused on is compliance with existing law during the state’s new class II community connector trail building boom. We do not believe that use of large groomers on trails complies with the SLMP/DEC regs, nor do we believe that destroying 2,200+ trees and completely altering the forest where the trail was built complies with the State Constitution.

    Paul (3): You’re missing the point. Read the lawsuit papers and linked posts for chapter and verse about why snowmobiles and groomers are different types of motor vehicles. But quickly, the SLMP (and DEC regs) motor vehicle definition lists both “snowcat” and “snowmobile” separately, so they are separate and distinct types of motor vehicles and just one of them is allowed on a “trail.”

    Paul (4): Sorry for your confusion. We want the law obeyed. If current law is not adequate to meet the needs to the snowmobiling industry, the state should amend the SLMP. That would require public hearings and an Environmental Impact Statement and follow other state laws like SAPA. It’s an above-board, transparent, public system. Unfortunately, the state has refused to amend the SLMP to fit its objectives because it does not want the public scrutiny. We’re trying to hold the state accountable for its actions to manage the people’s lands and uphold current law.

    MP Heller: Glad you liked my work in Lake George. Not everybody did. Glad you liked my work at the RCPA. Again, not everybody did. Please note that PROTECT never makes a decision about its positions by pointing our finger in the air to see what is popular or because we think somehow great gobs of money will come our way. We focus on what is right, plain and simple. The reality here is that despite a decade of consistent protest from PROTECT and its predecessors, and others (this is the 4th snowmobile management lawsuit in recent years!) , the state has embarked upon violating state law/regulations and the State Constitution. We are confident in the merits of this lawsuit.

    I’ve been doing this work awhile and I can tell you that I’ve had lots of people resign over various positions the groups I’ve worked for have taken and I’ve had lots of people sign up over those same positions. Based on my experiences, the best course of action is to do what is right.

    Mitch, Doug and Dave: We said that if the Seventh Lake Mountain Trail had been built to be groomed with a snowmobile pulling a drag it would have been a different trail and we would not be in court.

    As to the tradeoff, it’s value differs among various players. PROTECT did not see a “deal” in the MRPWF UMP. I think DEC did as did others, but we did not.

    We were very clear since the first hours that class II community connector snowmobile trails were given voice in 2002 or so that it seemed to us that they violated the SLMP and likely could not be built in a way that did not violate Article 14. We’re only asking the DEC and APA to comply with existing law and if they can’t then they should formally amend the SLMP, but stop trying to do politically expedient and dishonest end-arounds the law.

    Hot debate. What do you think? Thumb up 4 Thumb down 4

  12. M.P. Heller says:

    Peter I know you are working hard. Perhaps putting your finger in the air and figuring out which way the prevailing winds are blowing would be of a benefit. Working together is better than being part of a splinter.

    Don’t sell out your principals, but don’t swim upstream for the sake of trying to be different either.

    Like or Dislike this comment: Thumb up 3 Thumb down 3

    • Wally Elton Wally says:

      Aren’t politicians disliked because they do that rather than stand on principle? Hate to think where we would be if no one ever swam upstream (or in a direction that SEEMED like upstream at the time)!

      Like or Dislike this comment: Thumb up 1 Thumb down 0

  13. Peter Bauer Peter Bauer says:

    A and MP Heller: Read our court papers. Nothing misleading here at all! Your allegations about some kind of campaign to mislead are far off the mark. The 2200+ trees taken down in the MRP were all over 3″ DBA. Many thousands more of less than 3 inches were also removed. The other counts where as many as 8,000 trees could be taken down to build new class II community connector trails are all for trees over 3″ DBA.

    While Article 14 case law has focused on tree destruction, what’s also important in Article 14 is that the Forest Preserve “be forever kept as wild forest lands.” There is not case law on what that means, but we’re arguing that a 12-acre clearcut that snakes through the forest where lands have been flattened, graded, rocks removed, trees removed, understory eliminated, oversized bridges built over streams, bench cuts made into side slopes, and bed rock hammered away, does not comply with a state of being “forever kept as wild forest lands.”

    Like or Dislike this comment: Thumb up 2 Thumb down 1

    • M.P. Heller says:

      Its a poor arguement Peter, and disingenuous to the spirit of Article 14, which is why ultimately you will end up enriching only your attorney and failing miserably in court at the expence of your benefactors.

      Will you file suit against Lean-to Rescue, ATIS, The ADK, The Adirondack 46ers, and all of the other volunteer groups who collectively cut thousands of trees a year too?

      Well-loved. Like or Dislike: Thumb up 7 Thumb down 2

    • Paul says:

      There is nothing in Article fourteen about 3″ DBA. The article refers to “timber”. This article, in part, was written to support the idea that Forest Preserve land would not pose a competitive threat to large private parcels for timber production. Some of the deeper pocket supporters of article 14 were happy to see the value of the timber on their land go up as timber on state land became off limits. That is part of the reason that case law has focused on “timber”. As far as Forever Wild if the plaintiff were to prevail in this complaint it seems logical to follow that much of the “development” on FP land including all the intensive use areas will need to be removed. So like MP says these other folks would have to be next.

      Like or Dislike this comment: Thumb up 0 Thumb down 1

  14. loggerhead says:

    The problem is the SLMP is out of whack….
    back in the 1970s who would imagine the huge changes in large timber tracts selling, the state making huge gains in the Forest Preserve. The towns of Tupper , Indian Lake, Newcomb – without the anchors of Gore or Whiteface – going down, economy in the toilet. All these towns had huge numbers by percentage involved in working the woods.
    Protects policy is too divisive.
    The state needs to encourage these lands for better use,
    managed better for all groups… mtn.bikers,snowmobilers,hikers,x-ski trails with grooming allowed. A good trail is a better trail,let them make the best trail they can.
    Article 14 was written 1800’s…before forestry practice,DEC and APA …. time for an update.

    Like or Dislike this comment: Thumb up 4 Thumb down 1

  15. John Frey says:

    Its sad when there is a focus to fight rather than be a part of the solution. Tactics that have worked in the past are repeated to often. It is my hope that those that work the hardest to find a common sense solution will be rewarded over those that preen and posture and then wrap themselves in legalese that those that came before them forced upon us. There was a stacking of the deck not so thinly veiled in the drafting of the SLMP. Snowmobiles, float planes and proper timber practices were left wanting.

    I believe that we need a voice from either side that the pendulum swings to. I also believe that nearer to the middle as the pendulum moves you will find reason and common sense.

    Rather than fight in Court I challenge Peter to become part of the process and to live with an outcome that comes from a fairly balanced discussion.

    SLMP, It seems that protect and a few others only like their interpretation of what is a legal document that should also be open to my interpretation. I chose to find a way to work within it for the benefit of the Park. Thats right the benefit of the Park, for the park is more than trees and water. It is visitors, residents, caretakers, true environmentalist that believe the woods are there for use and non use. Its Civil servants improving water quality when funds allow. Its State employees with a love for the outdoors that shows in their work.

    Is it possible that what truly bothers those that felt forced to sue is that common sense has gained a foothold and too many of us are working together with positive results.

    John Frey Town Supervisor Inlet NY

    Well-loved. Like or Dislike: Thumb up 10 Thumb down 1

  16. Mike says:

    This new trail is 11.9 miles and serves as a connector between hamlets. When it opened DEC closed 46(!) miles of other snow mobile trails. This is great.

    The Forest Preserve is a a work-in-progress. A perfect representation of the law which would mean, for example, tearing down power lines leaving some hamlets dark. Should we expect PROTECT action against existing but clearly illegal power lines? The announcement might say ‘we think towns should have power, but we are just trying to solve the legal problem’ or some such words.

    Peter, you may not like the word “deal”, progress requires stepwise moves and balance not absolutist legal gotta behavior. 46 trail miles closed, for 11.9 new miles. Well done DEC.

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  17. Mike says:

    Oh, and they also closed 2 miles of road to motored vehicles. These are the right kinds of steps for DEC to be taking.

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  18. Jane says:

    There will always be an issue between the purest of outdoorsmen who long to hike in pristine wilderness and those people who have never been exposed to the beauty of wild places and have no fondness for it. With the later group, it may be that they are not familiar with how to prepare or are not physically able to go “into the wild”. It would be grand if all humans loved “wild places” but for that to happen, folks need to meet nature at their own comfort level; if outdoor encounters are a wonderful experience, humanity will have yet another protector of the wild. Let’s try not to forget that nature lovers from all walks of life can bring the most political and funding support. The Adirondack economy as well as the park needs an increase of devotees. It is heartbreaking to see the wilds violated but sometimes that is the actual locus point of many people. It would be a shame to make getting into the wild so challenging that it’s a horridly difficult vacation experience. You can bet they will never donate/support whatever represents that bad trip! Both sides need to strike a balance that will make more, not fewer Adirondack Park fans. Yes, I live within the blue line!

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  19. duane says:

    Reading this essay one would come away with the impression the DEC and the APA knowingly schemed to break the law for no other reason than to break the law. Of course that is Protects opinion, one that I believe is driven by animus, lacks common sense and avoids the main elephant in the room…safety. I know that some Protect members hate snowmobiles and if they had their way would be banned. They say they believe snowmobile trails are allowable (under their terms of course) but that Protect has not taken a position on the question if they actually believe snowmobiles should be allowed on the Forest Preserve. Why not and then make your position public?

    If, as you say snowmobile trails are allowable, and the DEC and the APA have to administer the trails is it unreasonable to expect that the safety of the participants of this allowable activity is taken into account when designing and laying out the trail? Modern snowmobiles are around five feet wide. Is a 9 to 12 foot wide trail unreasonable when snowmobiles have to pass each other? Common sense says that 2 feet to spare is not unreasonable on a curve and could be described as a tight fit. Passing on a 9 foot wide straight away means having to go off the trail somewhat.

    For line of sight safety when traveling through the woods is it not safer for snowmobilers on a 9 to 12 foot wide trail than on an 8 foot wide trail, especially on curves?

    If snowmobile trails are allowed is it unreasonable to remove rocks, stumps and bumps that could cause an accident if hit?

    You may call it “road like” to your stated desire but is it unreasonable for the rest of us to call it a safe or safer snowmobile trail?

    Does Protect have expert snowmobile trail designers ready to testify in court that an 8 foot wide snowmobile trail where rocks, stumps and bumps are left as is, is as safe for users as a well groomed 9 to 12 foot wide trail?

    Does Protect believe that the excavation done for safety reasons for an allowable recreation use has caused irreparable harm to the Forest Preserve when everything is taken into context?

    As the large tracked groomers will travel on snow is it unreasonable or wrong to say that they will do no more harm to the Forest Preserve than snowmobiles? Is it possible these groomers do a better job at grooming than the groomers pulled behind a snowmobile thereby making a safer traveling surface?

    Does Protect believe the safety of users of an allowable Forest Preserve recreation is of paramount importance and needs be taken into account when designing the trails?

    Would it be unreasonable for people to come to the conclusion, when all things are put in context, that the Protect lawsuit seems awful petty and intended to or not, puts the concern for a miniscule amount of trees when considering all of the trees on the Forest Preserve, over the safety of it’s legal users? After all Protect could have chosen not to bring the lawsuit.

    Would it be unreasonable to expect Courts to weigh heavily the importance of safety on permitted snowmobile trails?

    Would it be unreasonable to believe that when Joe Martens of DEC said that a few “refuse to see the forest through the trees…” he was referring to the importance of safety for trail users as well as the economic importance of the trails to the communities it connects. Maybe he actually believes these new trails should and will provide a safer experience for its users and is at peace with himself as are all those involved in the process.

    Would it be unreasonable to say your personal attack on Marc Gerstman is unfair and mean spirited? In fact I find it quite amazing that it is included in a public release by an organization that expects to work with the very same personal. Would it be unreasonable to surmise that this shows signs of arrogance on your part and an enmity towards Mr. Gerstman? Mr. Gerstman has a different job now with DEC with different responsibilities and answers to different bosses. As a lawyer he represented the Adirondack Council’s concerns. In fact one could deduce even from your own text that he does indeed see the forest through the trees. After the Adirondack Council’s snowmobile lawsuit was dismissed maybe he advised them it was time to stop looking?

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  20. Paul says:

    “They say they believe snowmobile trails are allowable (under their terms of course) but that Protect has not taken a position on the question if they actually believe snowmobiles should be allowed on the Forest Preserve. Why not and then make your position public?”

    I agree if we are going to have an honest discussion that this needs to be done.

    Peter, you say this above:

    “Paul (2): PROTECT has no position at this time about whether or not snowmobiling is something that should continue on the Forest Preserve.”

    Why?

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  21. Paul says:

    Peter, in reviewing the complaint I found this interesting:

    “9. Plaintiff’s members use the Wild Forest lands of the
    Forest Preserve more than most other members of the public.”

    So Protect’s 2000 members use the Forest Preserve more than most other members of the public?

    Question, are the trees that were removed for this work “timber” as defined by article 14?

    Also, from the ASLPM:

    “43. In fact, the cutting of new trails “to improve the
    snowmobile trail system may be pursued” only:
    where the impact on the wild forest environment will be
    minimized, such as (i) provision for snowmobile trails
    adjacent to but screened from certain public highways
    within the Park to facilitate snowmobile access between
    communities where alternate routes on either state or
    private land are not available and topography permits
    and, (ii) designation of new snowmobile trails on
    established roads in newly acquired state lands
    classified as wild forest. APSLMP p. 35.”

    Or such as (iii) to limit the kind of impact to the wetlands that was well documented by Protect in the photos showing where there was inadequate bridging in some areas.

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    • Nature says:

      “9. Plaintiff’s members use the Wild Forest lands of the
      Forest Preserve more than most other members of the public.”

      So Protect’s 2000 members use the Forest Preserve more than most other members of the public?

      Paul, I have to join you on questioning this statement. What exactly are they really trying to say? First off, how do they know that they use the wild forest lands more than others? Secondly, If there was a group that was ruining the solitude and wild character of an area it would probably that group that spent the most time there, wouldn’t it?

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  22. Charlie says:

    It seems to me that the respondees to this post are all snowmobiler’s,or are partial to them. Personally you couldn’t pay me to get on one of those loud contraptions.I go to the Adirondacks to experience the wildness of it,the quietude. Surely there’s a value in snowmobiles,but if they were suddenly to become extinct i wouldn’t miss them.
    If Peter is right about what he says: that the DEC and APA violated the Adirondack Park State Land Master Plan (SLMP) and DEC regulations by authorizing the mechanical grooming of snowmobile trails with large tracked groomers.” then they ought to be held accountable.There shouldn’t be exceptions for whatever our selfish reasons are.

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    • Paul says:

      I am not a snow machine user, nor do I care much for the things. But they do have rights to use Forest Preserve land.

      That is why Protect! should state what their position is on the use of snow machines on FP land. Nothing to be afraid of.

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  23. Frank says:

    Snowmobiles are here to stay. If you are going to have trails you have to groom especially with marginal snow. Skiers should know this. Groomers spread the snow over bare spots. On ski slopes that means less face plants on snowmobile trails it means less trail damage.

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  24. Local Thinker says:

    What is the current status of the lawsuit?

    From following this issue and the progress of the trail construction I think a few facts have conveniently been left off the table. Prior to the snowmobile plan or the Guidance document the DEC/APA did, snowmobile trails, as well as ski and horse trails were allowed to be 8′ wide. The only reason all those trails were not FULL 8′ wide is the lack of manpower out doing brushing. The trails are 1′ wider. So the Width argument is about 1′.

    Much is said about the trail being built to accommodate tracked groomers. Grooming with a snowmobile and a drag requires many additional trips along a trail to achieve the same result that can be done with a tracked groomer in a down and back pass. Tracked groomers can angle their blade to cut across side slopes and move snow to the downhill side, a snowmobile and drag cannot do that as they would end up against the trees at the bottom of the slope. So by bench cutting and smoothing obstacles they are making the trail more suitable for a snowmobile and a drag more so than a tracked groomer.

    The Adirondacks trail system is Wet and Steep. It was laidout 100 years ago and the though then was let’s get to the top of the mountain. Nowadays everyone knows that is not the right way to build trails. Out west and anywhere new trails are built they are built with bench cuts and built in a way that avoids water, sheds water and a trail that is built to not be too steep so it is sustainable. DEC used the new way of building a trail here. The SLMP talks about character of a foot trail. Does that mean trails should be built like the poor trails that were always here? Old logging roads were seasonal used, built without machines and largely took the path of least resistance, normally that was in the bottom of a drainage, so by following old routes as the SLMP says the trails would be all wet. The worst part of this trail is where it follows old routes.
    In 2009 all the environmental groups were brought to the table prior to the passing of the Guidance as well as the snowmobile community and local government. There was a chance for PROTECTs predecessors to voice their concerns. Did they?

    Why not engage DEC when they started the project? It seems PROTECT could have engaged in a conversation with DEC prior to just stepping back and taking shots at them finally doing something.

    Regarding PROTECT losing donations. Peter is correct in saying that they need to do what they feel is right. PROTECT and any other group is entitled to be wrong on any issue, that is what makes our country great. My issue is the sensationalistic methods they use. It use to be that groups that advocated for the Forest Preserve were gentlemen. The tactics used and words used in the propaganda smear campaign for this issue are incredibly blunt. By screaming loudest and using the right words and pulling the right strings, Peter is making sure that while he protects his cause he is also luring in the cash from the people who don’t know any better, who like the idea of this “Park” being here for them to come and enjoy.

    PROTECT is surely alienating themselves with the native Adirondackers and most of those people don’t have money to help fund PROTECT, but it might go a long way with being a good neighbor to actually respect and provide some outreach to the locals and change their current negative view on PROTECT.

    Some thoughts to ponder

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