A few weeks back there was quite a kerfuffle here at the Almanack over this post by Dan Crane, concerning illegal trails he came upon along the border of the Five Ponds and Pepperbox Wilderness areas.
Comments, accusations and counter-accusations flew back and forth over whether illegal trials in the Wilderness constituted a big deal or not, who knew they were there and whether they were in fact a common and accepted part of the back country.
I think these are important questions, as many unsanctioned trails in the Wilderness violate the letter of the law and arguably the spirit of Forever Wild too. Illegal trails can lead to a variety of environmental and aesthetic problems. But, as is usually the case in the Adirondacks, the extent to which this is the case is a matter of degree. It is also, in the final analysis, a matter of intention.
Let us first agree that the magnitude of the issue is immense. There are illegal trails all over the Adirondacks. Taken together with illegal camps (usually off-trail), tree stands, informal dumps and everything else one comes upon, the human imprint is all over Adirondack Wilderness. Some of it is damage recovering from past use, much of that associated with old roads. Some of it is brand new. Most of it, in my experience, consists of features with a measure of longevity that have been maintained at some level.
There are plenty of places in the Adirondacks I have not ventured. Of the many areas I do know well however, I can think of only a couple of large swaths where I have not encountered any evidence of trails used by human beings (not to say they weren’t there). As anyone knows who has spent even a little time in the Adirondack back country, thin soils, fragile vegetation and the abundance of water means that even a few traverses over the same route will create a herd path – essentially a followable trail (followable being a relative term, dependent on experience). That’s true even if one doesn’t intentionally clear brush or break branches.
It would help to have a formal – i.e. official New York State – definition for an illegal trail in Adirondack Wilderness. This is not as clear cut as one might think and the facts will likely disappoint Forever Wild purists. We must begin with that famous declaration, Article XIV of the State Constitution. A strict interpretation of this article would seem to prohibit trails altogether, for it says that state lands must be kept as “wild forest lands” and further directs “nor shall the timber thereon be sold, removed or destroyed.” Foot trails are not specifically exempted (in fact the only trails mentioned at all in the Article are ski trails, these described in the amendments added in the mid-twentieth century to allow ski resorts on Forest Preserve). That means technically that any foot trail requiring the removal of a tree violates the New York State Constitution.
Fortunately we have the long-standing principles of “spirit of the law” and “common practice” to help us avoid what would be a ridiculous restriction. Constitutional articles are always broad and intended to be subject to interpretation. It’s common practice for humans and animals alike to use foot trails – they are considered a common part of wilderness.
Indeed, the Adirondack Park State Land Master Plan (SLMP), which codifies common human practices in the Wilderness around the concept of “conforming uses,” specifically includes foot trails, with the restriction that they are built “in a manner causing the least effect on the surrounding environment.” This is a restriction obviously subject to interpretation and judgment. Elsewhere the SLMP sets a few additional and commonly known parameters, such as allowing for trail relocation, bridges and ladders made of natural materials and setting minimum distances for camping and the like. The SLMP does not specifically prohibit anyone from constructing a trail that meets these parameters, any more than it restricts anyone from camping where they like so long as they fit those parameters.
It falls to New York State’s Environmental Conservation Law to speak directly to illegal trails. It does so on a very narrow basis. As noted by Bill Ingersoll in a comment on Dan Crane’s post, it was written specifically to address the High Peaks Wilderness Area. Here are the relevant excerpts verbatim:
190.13 Use of State Land: Wilderness Areas in the Adirondack Park
b.11 “Trail” means a marked and maintained path or way for foot, horses, or cross country ski travel.
f. Miscellaneous restrictions
3. In the High Peaks Wilderness Area, no person shall:
1x. mark trails with plastic ribbons, paint, blazes or other devices, cut or clear trails, or mark summits with canisters except by written permission of the department;
This is pretty weak stuff. It’s written only for the High Peaks Wilderness Area, leaving all other wilderness areas to the whims of trail builders. What’s more, it’s given little priority in the context of a very large document. As an example, here are some other regulations which are peers with this one:
190.13.f.1 No person shall fail to register whenever passing a trail register established by the department in the Eastern High Peaks Zone.
190.13.f.3.x. (no person shall) possess a glass container, except that glass containers which are necessary for the storage of prescribed medicines shall be exempt from this prohibition.
How many readers regularly violate the first one? How many readers even know about the second? Surely there must be better and higher priority protections against trail cutting than that!
Fortunately DEC is granted by law considerable powers to work within the general parameters established the SLMP to protect the Forest Preserve so long as they are reasonable and meet the standards of common practice and the spirit of the law. Dealing with illegal trails would seem to fit that bill. So I corresponded with DEC over the last two weeks to get their policy on illegal trails. Here is their official response:
There are numerous undesignated trails, also known as herd paths, on the Forest Preserve and other State lands. These are typically formed by numbers of people repeatedly traveling to a specific site such as a mountain summit, scenic overlook, swimming hole or place to fish. DEC does not encourage the formation of herd paths, but does not typically enforce against those who create or use herd paths provided the paths:
- Do not cause damage to sensitive habitat,
- Are not cleared of any vegetation, large rocks or other obstacles;
- Have no trail infrastructure such as water bars, bog bridging, stairs, ladders, etc., and
- Are not marked with blazes, markers, flagging or other means.
Only DEC or their designees can make, mark and maintain trails, others that do so are violating state land use regulation.
This seems to draw a pretty clear line. Most important, it clearly establishes an unambiguous standard of intention. If an informal trail “springs up” of its own accord due to the repeated passage of people heading to a specific destination, so be it. However if there is an intention to create a trail – evidenced by any clearing activities of any sort – then DEC interprets this as violation of state regulations.
This is not clearly understood by users of the Adirodnack Forest Preserve. A lot of the arguments we see over trails have to do with their purpose, their scope or both. A trail may have a purpose to facilitate hunting, or allow access to a rock climbing destination, for example. Those purposes seem reasonable, but the purpose is irrelevant according to DEC policy. Purpose implies intent – if it is other than a herd path, it’s out.
So is scope. There is a hunting trail that leaves roughly from John’s Brook which I follow for more than a mile as to reach my High Peaks in-holding, Lost Brook Tract. It is relatively innocuous to be sure – an inexperienced would lose it in several places. Its scope would seem entirely excusable, it’s intentional: there are cut logs, trimmed trees, cleared vegetation and some flagging. Modest in scope though it is, it is illegal, both in the letter and spirit of the law as interpreted by the State.
But what about the fact that using such trails is unquestionably common practice in the Adirondacks? Here the acceptance of herd paths – of trails formed merely by repeated hiking to a certain destination – gives us a practical out and a reasonable understanding. Hunting trails or routes to good climbing routes need not be cleared or flagged to be useable.
So what are we to make of all the illegal trails in the Forest Preserve? For the most part not much, I think. The only intent-based violations I find on a regular basis are flagging and some modest branch and downed timber clearing. Both are temporary effects easily swallowed by time and the wild proclivities of the Adirondacks. On the other hand more gratuitous violations should be noted and objected to, as Dan Crane did.
The arguments that there are a lot of them and/or they always been there, are specious. They have nothing to do with the standards DEC applies. If the trails are intended they are illegal, end of story.
Some will say that in fact DEC does not follow or enforce this policy. This objection too is specious. We cannot fault DEC for failure to hew consistently to their own trail policy – or even look the other way in many cases. DEC does everything it can with far too limited resources; they have to set priorities. All of these trail matters are necessarily judgment calls.
It is incumbent upon all of us then, as in so many things Adirondack, to be good stewards ourselves, to call attention to the more egregious violations of trail policies and to advocate for them to be addressed. In the mean time I will bushwhack and herd path myself to Lost Brook Tract with a clear conscience – as soon as I take a couple flags down.
Photo: along the bushwhack route to Lost Brook Tract