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.
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.”
The 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.
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:
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).