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.