Thursday, March 2, 2017

Historian Testifies In Forest Preserve Snowmobile Trail Lawsuit

Protect the Adirondacks offered its first witness Wednesday in a civil trial that could clarify the meaning of Article 14, the section of the state constitution that declares that the Forest Preserve “shall be forever kept as wild forest lands.”

Historian Philip Terrie spent several hours on the stand, establishing his credentials and testifying about the meaning of timber circa 1894, the year Article 14 (then Article 7) was approved.

Article 14 mandates that timber on the Preserve shall not be “sold, removed or destroyed.”

Protect the Adirondacks contends that the state’s construction of “community connector” snowmobile trails violates this provision and will destroy tens of thousands of trees. The nonprofit group is suing the state Department of Environmental Conservation and Adirondack Park Agency.

In opening statements Wednesday, Protect lawyer John Caffry argued that community connectors — nine to 12 feet wide, graded, with rocks removed – resemble roads more than trails.

“Nothing less than the future of the Forest Preserve is at stake here,” Caffry told acting State Supreme Court Justice Gerald Connolly, who is presiding over the non-jury trial in Albany.

But Assistant Attorney General Loretta Simon contended that community connectors are similar to other trails and are designed to minimize erosion, preserve the forest canopy, and avoid sensitive areas such as wetlands and deer winter yards.

“Foresters took great care to construct sustainable trails,” Simon said, adding that they are “an acceptable use of the Forest Preserve.”

The state’s estimate of the number of trees to be cut is much lower than Protect’s. DEC counts only trees that are at least three inches in diameter at breast height (dbh), a standard used in forestry. Protect contends that smaller trees – from 1-3 inches dbh – are ecologically valuable and also should be counted.

Caffry said DEC’s plans to create 28 miles of community connectors will destroy 6,200 trees greater than three inches dbh and about 18,000 smaller trees.

Terrie testified that the definition of timber is not limited to large trees. An 1890 dictionary, he said, listed dozens of definitions, including “woods or forest, wooded lands.” The words timber and trees often overlap in meaning, he said.

Terrie also said that alarm over “irresponsible and ruthless” logging in the Preserve led to the adoption of Article 14. Conservationists at that time were concerned with the cutting of all trees, big and small. “Pulp loggers cut very small trees [for paper],” he said.

Simon objected to the relevance of Terrie’s testimony and asked only a few questions of her own. In answer to one, Terrie conceded that the 1915 constitutional convention proposed changing timber to trees and timber in the clause “nor shall the timber thereon be sold, removed or destroyed.” Simon’s implication was that timber is not synonymous with trees.

Louis Marshall, who took part in both the 1894 and 1915 conventions, wrote in a 1915 article in the New York Times that the word change was made merely to resolve any doubt “as to the comprehensiveness of the prohibition against the sale, removal, or destruction of timber by specifically including ‘trees’ in the prohibition.” Caffry sought to admit the article into evidence, but the judge disallowed it on technical grounds. (Ultimately, the constitution drafted at the convention was rejected by voters for reasons that had nothing to do with the Forest Preserve.)

Terrie is the author of Contested Terrain: A New History of Nature and People in the Adirondacks, among other books. He sometimes writes for the Adirondack Explorer newsmagazine, which owns Adirondack Almanack.

Protect hired an ecologist, Steven Signell, who visited the community-connector routes (some of which have already been cut) and estimated the total number of trees that will be destroyed. Signell was expected to testify at the trial about his research and the ecological role of small trees. He took the stand this morning, according to Peter Bauer, Protect’s executive director.

After today, the trial will not resume for a few weeks. It may be months before Justice Connolly hands down a decision.

In a related proceeding, the parties are awaiting a ruling from an appellate court on whether the state can continue work on the trails while the lawsuit is pending. At the moment, the state is barred from cutting trees.

Click the link below to read Louis Marshall’s article in the New York Times.

Marshall article

Photo by Mike Lynch: Peter Bauer examines a stump on one of the community-connector trails.


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.




20 Responses

  1. Philip Terrie Phil Terrie says:

    Mostly accurate, but you have a slight error in your account of the exchange between Loretta Simon and me on the 1915 constitutional convention. She asked if that convention had changed “timber” to “timber and trees.” I replied that she had it backwards. The constitution proposed in 1915 offered “trees and timber.”

    • Phil Brown Phil Brown says:

      Thanks for the correction, Phil.

    • Wayno says:

      The mere fact that only 21 years later there was a suggestion that the word “trees” was needed does seem to suggest a distinction between the two and would seem to bolster the DEC’s position.

      • Bruce says:

        Yes, and under Protect’s definition, it would also be illegal to create new foot trails if removal of any trees would be required. If the proposal had been about a new connector foot trail, there would likely be no court case, at least from Protect’s point of view.

        This case is, and always has been about preventing motorized use, not about trees. Protect advocated removal of the Hudson River bridge for the same reason, not because it is a bridge harmful to the environment. No bridge, no snowmobile trail.

        • M.P. Heller says:

          Ahhh. So you see what is going on here. Good for you Bruce!

          I’ve confronted Mr. Bauer on this exact topic in the past. “How does cutting trees for one type of trail differ from cutting trees for another type of trail?”. Guess what? He pretended he didn’t know about the 4 major rerouted sections of the major trails leading out of the Upper Works area. The East River Trail, Bradley Pond Trail, Upper Works to Duck Hole, and Calamity Brook trails have all seen substantial rerouting and the tree cutting that comes with it in recent years.

          This type of double standard in interpretation is so obviously biased towards activities and groups of users that Mr. Bauer approves of versus those he doesn’t think should be allowed to enjoy our public lands. That’s why nobody should ever donate to PROTECT! Its not a true environmental advocacy group. It’s the nonprofit vehicle that Mr. Bauer co-opted to provide him with a 6 figure salary donated by people he has duped. There are REAL environmental groups in the Adirondacks who do great work and deserve help from doners. PROTECT! is definitely not one of them. If you are concerned about Adirondack environmental issues donate to reputable nonprofits. If you are concerned Mr. Bauer needs a new vehicle or one of his two very expensive homes needs updates, donate to PROTECT!

          • Peter Bauer says:

            Hey MP Heller – If you have trails where the DEC cut 1000 trees a mile, please send us the evidence. If you have trails in the High Peaks that the DEC bulldozed, please send us that information too. You’re a photographer and an avid woodsman so please send us your stump counts on these trails. When I checked with the DEC last fall on the trails you referenced they said tree cutting was minimal.

            While I know you dislike PROTECT and dislike me, I think you should stop making stuff up. My wife and I rented a house for the years that we lived in Lake George (we’re now back in Hamilton County). We own one home in this world and it’s in Blue Mountain Lake, which we renovated ourselves over many years. Ask anybody, we’re right down town. I think a lot of people in Blue would get a chuckle out of you calling our house “expensive.” Also, my 2007 toyota prius has 220,000 miles on it, but it’s running just fine (knock on wood).

            • M.P. Heller says:

              I’m no photographer. I snap pics with my phone as I wander around. I just happen to have a decent eye for composition.

              I’m sure you aren’t a bad person, Peter, I just don’t have what you’d call a shining opinion of your work. That doesn’t make you sinister or anything, it just means I think you could better by taking a different approach. It’s not any of my business to tell you how to do your job. You do what you think is right, and I’ll bitch about it from time to time. It’s been going this way for many years now. It seems a shame to upset our little routine.

              I’m more than happy to sit down with you anytime. You are industrious. We travel in the same circles. You can easily find out how to contact me. I don’t bite, I promise. Maybe we can achieve something positive.

              • Paul Millard says:

                Peter –

                Listen up here sonny boy. Don’t go dancing with the trolls. As The Donald would say this guy is a bad hombre.

                Matthew Paul Heller from Diamond Point is a first class troll. He periodically crawls out from under a rock, or a bottle, and ruins this website or a couple other popular Adirondack sites.

                MP Heller is a guy who likes to throw stones at people from a safe distance. As he says above he’s got nothing to give to the conversation other than bitching.

                Seems that he’s also a troll who can’t spell. Hey dummy it’s “donors” not “doners.”

                MP Heller should stick to what he knows best. And that’s spending his daddy’s money and running a decent snowmobiler bar into the ground like he did over in Eagle Bay. I used to like to stop in that joint years back, before he screwed it up bigly.

                MP Heller is all snark and ridicule. You are right to call him a liar, which I know you were too polite to do, but that’s what he is.

                From what I can tell, MP Heller is a guy who lives all alone, probably in a house next to his parent’s, a house that his mummy and daddy bought for him. Gotta figure a guy like him, always nasty and yelling at people, nobody will have him. Look at him commenting on this site at 3 in the morning. Yup, nobody will have him.

                Peter, keep doing your work and fight the good fight for our beloved Adirondacks and please please please don’t waste your time with these trolls.

        • Phil Brown Phil Brown says:

          Part of Protect’s argument is that the nature of the community connectors violates Article 14 and the State Land Master Plan. The contention is that wide trails with bench cuts, rocks removed, grading, large bridges, etc. creates a man-made setting incompatible with the wild character of the Forest Preserve. It’s not just about the number of trees cut, though that too is part of their brief.

          • Boreas says:

            Phil,

            I believe the lawsuit has merit. Not because of the definition of tree vs timber, but because it will help clarify vague sections of Article 14 & the SLMP. For instance, “wild character” seems to be one of the imperatives that Class II trail construction techniques may be in violation of. But so are trail ladders and boardwalks. Hopefully pinning down some of these terms will result in more natural hiking trails as well as snowmobile trails.

      • John says:

        Seems just as likely that the members of the Convention saw no difference between the two words, so they rejected the change.

        • Phil Brown Phil Brown says:

          The constitution as a whole was presented to the public, which rejected it, apparently for other reasons.

  2. Paul says:

    If they meant for timber to mean trees than why not just say trees. Article 14 seems to have been written to protect timber and to protect “wild forest” lands. Not trees or wilderness. Neither one is mentioned.

    If you want a new law to protect other things then talk with the legislature.

  3. Phil Brown Phil Brown says:

    Regarding trees” vs. “timber,” I added the following to my original post as well as a link to the article referenced:

    Louis Marshall, who took part in both the 1894 and 1915 conventions, wrote in a 1915 article in the New York Times that the word change was made merely to resolve any doubt “as to the comprehensiveness of the prohibition against the sale, removal, or destruction of timber by specifically including ‘trees’ in the prohibition.” Caffry sought to admit the article into evidence, but the judge disallowed it on technical grounds.

  4. Chris says:

    The importance of linguistics and style should be recognized in discussions like this.

    “Community Connector’ is a camouflage for “Motorized Snowmobile Track”.

    There’s a reason for the language, just as tax cuts for the wealthy are called “reform”. One’s argument does better using one’s own language. And in fact it’s proven that using another’s language actually reinforces their position.

    • Bruce says:

      I don’t think there was any “camouflage” concerning the purpose of the trail, and by definition, a snowmobile trail is motorized.

      I think the camouflage is in the form of the fact that Protect doesn’t want any motorized use in the tract and is pulling out all the stops in an effort to make it go away, since they weren’t successful in their bid to have the tract classified Wilderness.

      I do believe the SLMP could use some updating and clarification of some of its terms.

      • Boreas says:

        Bruce,

        Anyone could have brought this suit and it would be just as valid. I feel PROTECT’s motives behind the lawsuit are numerous, as are the the details of the SLMP and Art. 14 that are insufficiently detailed in today’s polarized society unwilling to compromise.

        The real argument going on in the courts boils down to the old axioms of Letter of Law vs. Spirit of Law. In the not-so-distant past laws were crafted in a language that assumed all parties would agree to the ‘spirit’ of the language and the legislation. It was assumed parties were all on the same page and shared the same common sense. In today’s more polarized society, many laws on the books are being challenged on the ‘letter’ of the laws.

        Many of our state and federal environmental and land classification statutes are going to need to be either re-written or at the least amended to provide more details and clarification. Unfortunately, it is going to be a long, expensive, ongoing, ugly process to amend these laws. In the end, more people will be unsatisfied with the outcome because there is little room in today’s society for compromise. These are the times we live in.

  5. MRK says:

    What is Simon’s definition of timber? Timberlands are also called forestlands and a forest is composed of trees of all sizes. Article 14 is to forever protect forest lands.

  6. Peter Bauer says:

    Dear All:

    A couple of thoughts. Firstly, there is way too much information in this case to post here. All legal papers, three rounds of submissions by the state and PROTECT, are posted on PROTECT’s website. It’s all good and informative reading.

    First, this is not a case about snowmobiling, not now, not never. It’s a case about managing the Forest Preserve in a way that complies with Article XIV. We think it’s clear that Article 14 and existing case law prohibit uses that cut down thousands of trees and require vast terrain alterations with heavy equipment. These new class II community connectors trails are a fundamentally new use of the Forest Preserve. We have seen no evidence that the state is managing other trail systems in the Forest Preserve in a way that cuts down so many trees and uses heavy equipment to grade and excavate a trail corridor. If these trails were built for rollerblading or bicycles or skateboarding or some other activity we’d be in court too.

    Second, Article 14 does not just provide protections for large commercial merchantable trees. There’s nothing in the historic record to suggest this is so. There are no statements in the record that the framers were acting to protect some trees and not others. The historic record is filled with words wilderness, wildlands, forests, trees, and much more. Go read the debate. We think that the historic record is pretty clear that “timber” in the late 19th century was used interchangeably with trees or the forest. Go read Colvin, Headley, Sears to see many examples where they use timber in this way.

    Third, dictionary definitions even today, show the ambiguity of the word “timber.”

    From dictionary.com:

    1. the wood of growing trees suitable for structural uses.
    2. growing trees themselves.
    3. wooded land.
    4. wood, especially when suitable or adapted for various building purposes.
    5. a single piece of wood forming part of a structure or the like: A timber fell from the roof.
    6. Nautical. (in a ship’s frame) one of the curved pieces of wood that spring upward and outward from the keel; rib.
    7. personal character or quality: He’s being talked up as presidential timber.
    8. Sports. a wooden hurdle, as a gate or fence, over which a horse must jump in equestrian sports

    From Merriam Webster’s online edition:

    1a growing trees or their wood b —used interjectionally to warn of a falling tree
    2 wood suitable for building or for carpentry
    3 material, stuff; especially : a person or type of person qualified for a particular position or status managerial timber
    4a : a large squared or dressed piece of wood ready for use or forming part of a structure b British : lumber 2a c : a curving frame branching outward from the keel of a ship and bending upward in a vertical direction that is usually composed of several pieces united : rib

    “Growing trees” “wooded lands” these show ambiguity in the use of the word “timber.” 19th century dictionaries show even greater ambiguity.

    Fourth, this is not cut and dry stuff. If it were easy we wouldn’t be in court. This was a major debate/lawsuit in 1930, again in the late 1980s, and now in 2016-17. It’s fine that as a society we sharpen our understanding of forever wild every few decades. The Forest Preserve is not meant to accommodate all recreational uses. The state is allowed to manage the Forest Preserve for public recreation, but must do so in a way that complies with Article 14. We think the state has gone over that line when it clears 50 acres of Forest Preserve and takes down 25,000 trees over 26 miles of “trail.”

    Last, and perhaps most important of all, is that if the state wants to build an expansive class II community connector trail system, where it wants to build wide road-like trails that take down 1000 trees a mile, then it should go and get a constitutional amendment, get the Legislature to support this plan, and get the people of the state to pass it. It should not do it by agency or political decree. The very purpose, the very essence, the guiding principle of providing constitutional protections for the Forest Preserve was to give the people of the State of New York the decision-making authority over major decisions about the use of the people’s lands, the Forest Preserve in the Adirondacks and Catskills.

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