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