Sunday, August 14, 2016

Judge Refuses To Halt Work On Snowmobile Thoroughfare

Peter Bauer measures a snowmobile trail near Newcomb.A judge has denied a request by Protect the Adirondacks to prohibit the state Department of Environmental Conservation from cutting Forest Preserve trees for a snowmobile trail while the trail’s legality is being contested in court.

State Supreme Court Justice Gerald Connolly ruled that Protect failed to demonstrate that it is likely to prevail in its lawsuit against DEC and the Adirondack Park Agency.

Protect contends that community-connector trails, which are wider than other trails and maintained by tracked groomers, violate Article 14 of the state constitution, which holds that the Forest Preserve “shall be forever kept as wild forest lands.”

Notwithstanding Article 14, state courts held in earlier cases that trails and other amenities can be built in the Preserve if they do not entail the removal of timber “to any material degree.” In its lawsuit against DEC and the APA, Protect argues that community-connector trails violate this standard.

The suit is scheduled to be tried in State Supreme Court in Albany in March. Protect sought a preliminary injunction to stop DEC from working on community connectors until the lawsuit is resolved.

In July, Protect obtained a temporary victory when the Appellate Division of State Supreme Court ordered DEC to stop work on a trail between Newcomb and Minerva until Connolly ruled on the motion for a preliminary injunction.

Now that Connolly has ruled, DEC is free to resume work.  Peter Bauer, executive director of Protect, said the environmental group intends to appeal the decision, which was filed Friday.

Protect, which started the lawsuit in 2013, has tried and failed to obtain preliminary injunctions in the past. This time Protect hired a forest ecologist Steven Signell to estimate the number of trees that have been cut and will be cut for the Newcomb-Minerva trail, bolstering the argument that the timber removal exceeds the legal standard.

Signell and DEC differ widely in their estimates. On the two sections of trail that DEC began constructing this summer, the department estimates that 1,676 trees will be cut over 7.7 miles (of which only 236 are healthy). In contrast, Signell puts the number at 5,468. The major reason for the discrepancy is that DEC counted only trees with a three-inch diameter at breast height, whereas Signell counted all trees.

Connolly accepted DEC’s methodology, calling it “a reasonable and necessary point from which to address the constitutionality of any tree removal.” He added that Signell failed to distinguish trees from saplings, seedlings, shrubs, and other vegetation. “Mr. Signell’s “subjective and overly broad definition of ‘trees’ would preclude the possibility of reliable counting and legal analysis.”

Based on DEC’s count, the judge concluded that the number of trees to be removed likely falls within the constitutional standard.

Bauer said Connolly erred in siding with DEC. “We clearly think that Article 14 provides protection for all trees, big and small, standing, live and dead. The idea that ‘timber’ as used in Article 14 means only big trees is a new and dangerous interpretation that severely undermines the state constitution,” he said.

On Monday, DEC Commissioner Basil Seggos issued a statement praising the judge’s decision.

“The court has correctly found that DEC’s actions to develop this snowmobile trail were constitutional, had been included in public planning documents and would not lead to the cutting or removal of trees and timber to a substantial extent,” Seggos said.  “DEC has worked carefully to develop this trail with minimal impact on Forest Preserve lands, and at the same time is eliminating other trails that are redundant, unsafe and intrude into more remote areas of the Forest Preserve. We are also acquiring significant new Forest Preserve lands, building on our conservation legacy and creating great new outdoor recreational opportunities.”

Photo by Mike Lynch: Peter Bauer measures the width of a snowmobile trail under construction near Minerva.

 


Phil Brown

Since 1999, Phil Brown has been Editor of the nonprofit Adirondack Explorer, the regional bimonthly with a focus on outdoor recreation and environmental issues, the same topics he writes about here at Adirondack Almanack.

Phil is also an energetic outdoorsman whose job and personal interests often find him hiking, canoeing, rock climbing, trail running, and backcountry skiing.

He is the author of Adirondack Paddling: 60 Great Flatwater Adventures, which he co-published with the Adirondack Mountain Club, and the editor of Bob Marshall in the Adirondacks, an anthology of Marshall’s writings.

Visit Lost Pond Press for more information.




93 Responses

  1. Trailogre says:

    I suppose the judge is a snowmobiler?

    • Darrin says:

      Not necessarily. The judge is simply upholding laws established by New York State.

      It’s a refreshing change of pace from the judicial activism what is all too common now.

  2. Boreas says:

    “…the department estimates that 1,676 trees will be cut over 7.7 miles (of which only 236 are healthy).”

    Anyone know what this means? 1440 trees are unhealthy?

    • Phil Brown says:

      Evidently, most were diseased or dead.

    • Peter Bauer says:

      The question of live, dead and diseased trees is a red herring. Article 14 of the NYS Constitution makes no reference to live or dead or diseased. Similarly, the public is told by the DEC that no tree should be cut down on the Forest Preserve unless it’s dead and down. Further, there is nothing in state policy that DEC-APA routes and builds trails based on diseased trees. And, yes, the overwhelming majority of these trees were those effected by beech bark disease, which plagues most beech trees in the Park.

      PROTECT’s position is that historic case law on Article 14 counted large and small trees. We believe all trees are protected and should be counted, so that all impacts are fully assessed, and we will continue to press this point as this case continues. Our papers compared tree cutting on new hiking trails, where a few dozen small trees are cut in a mile of trail, compared with these new roads-like class II community connector trails that see 1000+ trees of all size cut each mile in addition to extensive grading and other work.

      • Boreas says:

        PB,

        I didn’t bring it up as part of the argument, but out of curiosity considering what appeared to me to be a high disease rate. A side-track, if you will.

      • Paul says:

        I think that Article 14 refers to timber. The definition of timber is basically wood that can be cut into lumber.

        There is another precedent here. When the state fined the state for cutting trees outside the ROW along route 3 between Saranac Lake and Tupper Lake a few years back now I think the fine was only for larger trees.

  3. Barbara Lucas-Wilson says:

    I would think that if a tree were already dead, it wouldn’t count.

    • Boreas says:

      Good point…

      • Paul says:

        Again it is timber. Dead and downed trees (also not alive) are still potential timber if they can be cut into lumber. If you look at Article 14 again there is no reference to trees. That makes a big difference in a case like this.

  4. John says:

    Protect I guess doesn’t know when to quit. The trail will mostly be built by the time this goes to court & they’ll still loose!

  5. Revelstoke says:

    Good news, now they can get back to work on this nice new trail.

  6. AL says:

    Tree hugging dirt worshipers. Wait till all the snomobile registration $ is gone from the till, then who are you going to squeeze?

  7. Todd Eastman says:

    Protect is correct in the cutting being in violation of Article 14…

    … encourage the Judge Connolly to find a good recipe for crow…

  8. Phil Brown Phil Brown says:

    Regarding the condition of the trees … DEC plans to construct two segments (9 and 11) of the Minerva-Newcomb trail this years, and a DEC forester who laid out these segements attested in an affidavit:

    Of 1,253 trees to be cut along Segement 9, 129 were healthy, 208 were standing dead, 916 were diseased or in poor health.

    Of 423 trees to be cut along Segment 11, 107 were healthy, 316 were dead or diseased.

    Apparently, many of the diseased trees are beeches afflicted with beech-bark disease. Protect’s forest ecologist says this disease afflicts nearly all beeches and such trees can live for decades.

    • Boreas says:

      Phil,

      Thanks for the clarification. It would be interesting to know what percentages would be typical of a “healthy” forest. Disease and death are part of the forest – providing food and shelter for both native and non-native species – as well as providing canopy breaks and nutrients for new vegetation. Our views of what comprises a “healthy” forest will need to change as climate change begins to slowly replace boreal species with more temperate species.

      • Paul says:

        That is all true. But the legal question here revolves around “timber” as was referenced in article 14 and what the state was looking to protect at the time the law was made. We can change the constitution to cover some of these things but that is a different matter. It isn’t the courts job to make any new laws just to interpret what we have currently. The DEC has a pretty good legal team they don’t just do these things hap hazard.

        • Scott van Laer scottvanlaer says:

          Just curious…how did you conclude “The DEC has a pretty good legal team..”?

          • Paul says:

            Good question. They usually seem to do pretty well when they are called into question like this. I would assume that it has something to do with analyzing what they want to do before they do it. The entire AG’s office is part of the DEC and the state’s legal team.

    • Snowmobile Advocate says:

      Thank you for that clarification Phil. I think that one thing people seem to be forgetting here, especially in the dry weather we have experienced this year, are the ramifications of what can happen to the forest if it were to spark with fire.

      Dead and diseased trees should be removed as part of good forestry practice. Leaving them, as proposed by Protect, is anything but protecting of this habitat. It endangers not only the forest but the communities around it. Just look at the Black Hills of South Dakota and the fire they experienced in their park just a few short years ago. They are still trying to clean up the effects of that catastrophe which devastated not only trees but animal habitat.

      Although Mr. Bauer has again and again stated that snowmobiles are dangerous to the habitat, I have yet to find dead and diseased trees along the trails caused by snowmobiling. For that matter, I have yet to find dead or diseased animals along the trails caused by snowmobiling.

      In all reality, I commonly come across wildlife ON the trails when I am out riding with my family. They use the packed down snowmobile trails as walking paths especially when the deep snow hinders their feeding and travel in that deep snow.

      The DEC plan to build this community connector trail (not a super highway as has been implied) is a good and proper use of the forest preserve given the fact that they intend to close trails in other more remote and sensitive areas of the park. This makes sense for everyone – except Protect.

      Let’s not even get into the economic benefits for the starving communities within the park.

  9. Curt Austin says:

    I’ve done some crude calculations. There are about 6 billion trees in the Adirondacks, if there are 0.1 trees per square yard (these are good-sized trees at that rate). If they typically grow for 100 years and then fall down, that means roughly 6,000 will fall down during the next hour.

    I don’t much care for snowmobiles, but I like keeping things in perspective.

    • John Warren John Warren says:

      Curt, now why don’t you put into perspective the use of motorized corridors east of the Mississippi and the last remaining large open forests in New York.

      • Curt Austin says:

        I’m sorry – did my post seem snide to you? It was really just a description of a calculation of some relevance to the discussion, not quite a fact without verification, but objective. I don’t think it’s good to discourage people from doing this – shooting the messenger and all that.

        My motive, if you must know, was to stop environmentalists – with whom I agree far more than disagree – from making alienating and ineffective arguments. I want them to make heartfelt and rational arguments – to be persuasive. That can often mean sticking to the most important and most winnable battles.

        • PG says:

          You aren’t considering the spatial aspects there. In order to actually create the perspective you want, you’d need to consider the impacts of 6,000 falling down in the same spatial area as this trail. The forest system is drastically impacted in a specific area if a large portion of trees fall down versus spread across the six million acres of the park. I do agree we should be bringing this into perspective however it can’t be one general equation that does this, especially if that equation ignores important aspects of the situation.

    • Boreas says:

      Curt,

      This argument isn’t as much about the trees as it is about the legality of cutting them. Obviously the Park will survive with this particular trail being built. But what about the next? And the next? How many trails designed for high-speed motorized use can be built before the character of the forest is effected negatively? These are questions in which NYS citizens and local residents need to be involved.

      • Paul says:

        Snowmobile trail mileage in the park has a cap. We are getting pretty close. If you want to build a new one you will have to close and old one.

        • Boreas says:

          Paul,

          I don’t see mileage caps standing in the way of cash. If snowmobile use should begin to rebound and grow significantly, do you think the cap will stand? Conversely, will the cap be lowered if usage continues to drop?

          • Paul says:

            It would be very difficult to raise the cap. Usage may be lower but it isn’t low. Just look at places like Old Forge in the winter. With trails like this you don’t need much snow either. Don’t snowmobile myself. I would love to see these trails groomed for skiing. Town to town skiing like they have in Scandinavia.

  10. Patricia says:

    I don’t understand why cutting trees for a snowmobile trail in the woods is not okay, but clear cutting the side of a mountain to make downhill ski trails is okay. Large equipment is used to make trails at ski resorts in the Adirondacks all the time. Loud, heavy and large equipment is also used on those ski trails to maintain the trails. I don’t see the difference. Maybe someone can enlighten me.

    • Boreas says:

      Patricia,

      On the surface there is no difference. ADK land owned by the state has different classifications designed for different levels of forest/water/wildlife protection. That is why there are few ski areas any more being built that aren’t on private land. Most ski areas predate these regulations and have been grandfathered. Different classifications dictate what can and can’t be done in these areas. This is the crux of the argument here – is DEC legally allowed to cut these trees? Lawyers, guns, and money will attempt to sort it out…

      • Patricia says:

        Thanks for your comment.

        So, if Protect the Adirondacks mission is to preserve the ADKS then it would seem they would be equally concerned about the removal of trees regardless of where the trees are located within the park.

        I see hypocrisy in their concern with snowmobile trails but never any opposition to new trails at Gore Mountain or Whiteface Mountain.

        • Boreas says:

          Because the existing land classifications are different. One allows concentrated heavy use, the other doesn’t. They likely ARE concerned about all trees in the Park, but removal in one area is legal, the other it is not. This is the issue being sorted out.

        • Todd Eastman says:

          Patricia, I suggest a basic civics class that discusses laws, rules, and regulations…

          • Patricia says:

            Thanks for your concern about my education. Through comments here, I now understand the land classifications are different for ski areas and snowmobile trails. However, my question isn’t about laws, but the general mission of Protect the Adirondacks as it pertains to the preservation of the forest at large.

            I still ask what is the difference (not the laws) between cutting trees for snowmobile trails and cutting trees for downhill skiing? The tree cutting and maintenance for both diminish the forest. Yah, I get that some of the snowmobile trails are in the Forest Preserve. But shouldn’t all the forest in the ADKs be protected and preserved?

            It appears to me that one activity is perceived as a redneck sort of recreational activity, while the other is seen as an elitist activity.

            • John Warren John Warren says:

              Snowmobiles, and the trailers and trucks necessary to haul them, are very expensive. It’s a sport that requires quite a lot of more money than skiing. That’s part of why snowmobile registrations are steadily declining, as they have overall since the early 1970s.

            • Paul says:

              Patricia,

              Please take a look at Article 14 and the exemption that is made for the ski areas.

    • Peter Bauer says:

      Patricia,

      The big and obvious difference is that Gore and Whiteface ski areas were built after they were approved by Constitutional Amendments — voted on twice by the Legislature and approved by NYS voters. Our position is that a network of hundreds of miles of new road-like snowmobile trails, that are in effect 12-foot clearcuts snaking through the Forest Preserve, should also be subject to a Constitutional Amendment and not undertaken by administrative fiat.

      • Patricia says:

        The difference wasn’t so obvious to me, hence the question. Thanks for replying. Protect the Adirondacks Mission is “………….dedicated to the protection, stewardship and sustainability of the natural environment and human communities of the Adirondack Park and the New York State Forest Preserve for current and future generations.”

        If that is the case, I still question what the difference is between protecting , sustaining and being stewards of the natural environment for snowmobile trails and downhill ski areas? Whether being protected by constitutional amendments, a public vote, etc. or not it seems like Protect the Adirondacks would be against both philosophically as they both involve the cutting of trees, pollution from maintenance equipment, etc.

        Protecting human communities involves creating revenue for such communities as well. Snowmobile trails have a great economic impact on Adirondack communities and businesses.

        • Boreas says:

          Patricia,

          Philosophically, many people ARE against the things you mention. But with limited resources, we all must choose our battles. Philosophical hypocrisy, perhaps – but often pragmatically necessary.

  11. Pete Klein says:

    I don’t know if there are any plans for this but visually, the trail could double for use by horses.

    • Boreas says:

      PK,

      I believe horses were part of the original plan. However, there are some that feel that horses are a vector for transmitting invasive species. Trails such as this make it possible for those species and associated diseases to be distributed farther into the interior of large wooded areas. Yet another part of the argument.

    • Snowmobile Advocate says:

      Pete, I had this very argument a couple of years ago over a different snowmobile trail and the claim that came back was that horses should not be allowed due to “hydroponic erosion” from their hooves !!
      Just an FYI – the snowmobilers argued for them to stay and petitioned the state for a multi-use trail to allow every user group to benefit. After much deliberation and multi-year pilot programs, the horses and snowmobiles stayed and both user groups maintain the trail.

      The biggest proponent to having them both removed were hikers who have done zero trail maintenance.

  12. Bruce says:

    It would appear that the laws in effect are not clearly defined, allowing interpretation in more than one direction. Based on that, it is clear the environmental lobby is looking to set precedent it can use in other cases.

    • Boreas says:

      Bruce,

      I would say ALL groups are looking for a precedent, or at least clarification in the law. Rather than case-by-case decisions stirring up hornet nests, numerous expensive lawsuits thus setting conflicting precedents, I would think the laws should be re-written and clarified. But there seems to be little interest in the legislature to address these issues – likely because of the variable winds in politics.

  13. Paul says:

    That is 12 feet wide? Where are the stumps? Is this photo part of a per-exisiting trail?

  14. Phil Brown Phil Brown says:

    Just added comment from DEC Commissioner Basil Seggos.

    • Boreas says:

      “DEC has worked carefully to develop this trail with minimal impact on Forest Preserve lands, and at the same time is eliminating other trails that are redundant, unsafe and intrude into more remote areas of the Forest Preserve.”

      Yes, the mileage cap. I wonder how these trails will be “eliminated”? Just ignored and removed from the cap and left to rewild on their own (hoping no one will use them), re-purposed for ski/hike/bike trails, or will they be re-planted? I foresee a lot of wailing and gnashing of teeth over every inch of these trails targeted for elimination….

  15. lauren pereau says:

    I would like to cut on that. Wrap it up fast, no more delays.

  16. adirondackjoe says:

    I’m a tree service. I remove trees for a living. I can’t comment.

  17. lauren pereau says:

    The real problem with these trails is keeping the 4 wheelers off them. The old adage, “If you build it, they will come.” applies.

  18. Charlie S says:

    AL says: “Tree hugging dirt worshipers…”

    I hug trees AL. There’s so much more warmth to them,even in the dead of winter when frigid temperatures permeate the air,than there is in your average automaton.

  19. Charlie S says:

    John says: “They lost on the thh Mountain Lake trail from Raquette Lake out to Moose River Plains, what makes anyone think They’ll win here.”

    Faith in a power higher than a motorhead.

    • John says:

      I have faith that a GREAT multi-use trail will soon be finished & I have FAITH that a old rail line will soon be a world class trail also!

  20. Charlie S says:

    John says: “Protect I guess doesn’t know when to quit.”

    And let us pray they do not…for the sake of what some of us see as a continuation of an assault by a mindless segment of this society who will go to any length to see that nothing sacred remains for our progeny.

  21. Charlie S says:

    Dan says: “By all means, let’s do “get into the economic benefits for the starving communities within the park.”

    And who got them starving? The same people whose polices bring about the assaults on what remains of our heritage,our wild places……………

  22. Ryan Finnigan says:

    The construction of these new roads built through our precious forest preserve should absolutely be immediately stopped and environmental remediation efforts should commence now on portions already built. .

    • john says:

      The courts disagree with you! And they have the final say!

      • Ryan Finnigan says:

        A final determination has not yet been made. This is temporary permission to proceed until a final determination is made.

        • john says:

          May be temporary, but the judge in his ruling also felt that Protect WOULDN’T win in the full court case either. So DEC can go about making this trail & Protect can go about loosing in the full court case too!
          And This is another trail for snowmobilers, hikers, & snow skiers to use!

  23. Rick spencer says:

    Thank you for the new trail ! Our friends and family look forward to enjoying the beautiful scenery and riding on a nice safe trail .thank you for all your hard work !

  24. smokey says:

    The best part about this is after the trails are completed every hiker, backpacker, mountain biker & nature enthusiast will use the trails that remain open year round at the snowmobilers expense! After a winter like we had in 2015/16 how many thousands or millions did snowmobilers spend & never got to ride with the lack of snow? its the same old same old the do not’s always ride the coat tails of the doers! if everyone who uses these trails had to pay a permit or registration fee the tone would be very different!

    • Boreas says:

      You left out hunters.

      Was this trail AND the land it is on funded 100% by snowmobile registration fees? No. One must keep in mind it is on state land, not private. Taxpayers paid for that.

      • smokey says:

        hunters pay plenty more than most! hunting & fishing license sales pay for & maintain all state land & DEC employees. but yet anyone can enjoy state land & never contribute a dime. No other group of people contribute more! almost every piece of hunting & shooting equipment is specially taxed. if a hunter wants to use a snowmobile trail they have my blessing. if it weren’t for them most state land wouldn’t exist.

        The Pittman–Robertson Act took over a pre-existing 11% excise tax on firearms and ammunition. Instead of going into the U.S. Treasury as it had done in the past, the money is kept separate and is given to the Secretary of the Interior to distribute to the States.The Secretary determines how much to give to each state based on a formula that takes into account both the area of the state and its number of licensed hunters.

        These States must fulfill certain requirements to use the money apportioned to them. None of the money from their hunting license sales may be used by anyone other than the State’s fish and game department. Plans for what to do with the money must be submitted to and approved by the Secretary of the Interior. Acceptable options include research, surveys, management of wildlife and/or habitat and acquisition or lease of land, among other things. Once a plan has been approved, the state must pay the full cost and is later reimbursed for up to 75% of that cost through P–R funds.The 25% of the cost that the State must pay generally comes from its hunting license sales.[1] If, for whatever reason, any of the federal money does not get spent, after two years that money is then reallocated to the Migratory Bird Conservation Act

        In the 1970s, amendments created a 10% tax on handguns and their ammunition and accessories as well as an 11% tax on archery equipment. It was also mandated that half of the money from each of those new taxes must be used to educate and train hunters through the creation and maintenance of hunter safety classes and shooting/target ranges.

        • Boreas says:

          “hunters pay plenty more than most! hunting & fishing license sales pay for & maintain all state land & DEC employees. but yet anyone can enjoy state land & never contribute a dime.”

          I agree hunters pay more. But keep in mind, gamelands are managed for hunters. State owned land is another matter altogether. If you are saying only hunters and snowmobile registrations are paying for state lands, maintenance, and DEC, you are misinformed.

    • Jim S. says:

      As a hiker I avoid roads and therefore never would go anywhere near a snowmobile highway.

      • Boreas says:

        JS,

        The only one I use is the Bloomingdale Bog RR grade. But it was never intended as an exclusive snowmobile trail. As far as I know, none of the ones on state land were built as exclusive snowmobile trails.

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