Wednesday, August 9, 2017

Final Papers Submitted In Adirondack Park Snowmobile Trail Trial

section of the Newcomb to Minerva trail built in 2015On July 31, 2017 final papers were submitted in the trial in state Supreme Court in Albany over management of the Forest Preserve. The trial ended in early April. The trial focused on management of the public “forever wild” Forest Preserve by the NYS Department of Environmental Conservation and Adirondack Park Agency.

These agencies are currently building a network of 9-12 foot wide class II community connector snowmobile trails (Class II trails) on the Adirondack Forest Preserve that require cutting thousands of trees, extensive grading.

The lawsuit was filed by Protect the Adirondacks (PROTECT) against the NYS Department of Environmental Conservation and Adirondack Park Agency in 2013, and alleges that these trails violate Article XIV, Section 1, the forever wild provision of the NYS Constitution.

The trial ran for 13 days in March and April, 2017. After the trial ended, a complete set of almost 1,700 pages of trial transcripts was produced and these have been posted on PROTECT’s website. Both the Plaintiffs and Defendants were required to submit their Proposed Findings of Fact and Conclusions of Law to the court on July 31, 2017. A decision is expected in the fall, at some point after Labor Day.

Copies of both sides’ papers have been posted on PROTECT’s website.

A recap of the trial and Trail Transcripts are posted on PROTECT’s website.

PROTECT provided the following to the press:

The focus of the trial was two-pronged: 1) issues involving the number of trees cut, including meaning of “timber” in Article 14, Section 1, and what constitutes a tree that is protected under the Constitution; and 2) the impacts on the Forest Preserve from construction of the network of Class II trails due to extensive terrain and habitat alteration. Although the trial covered only the trails that had been previously approved and built, or were still under construction, the outcome of the case is likely to determine the fate of hundreds of miles of additional Class II trails that the State intends to build, and the fate of the entire Forest Preserve.

The four primary Class II trails involved in the trial were the 11.9-mile Seventh Lake Mountain Trail in the Moose River Plains Wild Forest Area, built in 2012; the 3-mile Cooper Kiln or Wilmington Trail in the Wilmington Wild Forest Area, built in 2014; the 2.4 mile Gilmantown Trail in the Jessup River Wild Forest Area, built in 2014; and the 15.25 mile Newcomb to Minerva Trail, which is located primarily in the Vanderwhacker Mountain Wild Forest Area. Work on this last trail was halted in the summer of 2016 when PROTECT obtained a preliminary injunction from the Appellate Division of state Supreme Court, which will remain in effect until the trial court issues its decision.

Although the State argued that only about 6,200 trees had been approved to be cut on about 29 miles of trails, PROTECT proved at trial that over 25,000 trees will be cut, if trees under 3” DBH are counted, and that 34 miles of Class II trails are being built so far, clearing over 37 acres of forever wild land. The Plaintiff’s case also proved that the construction had caused extensive damage, such as erosion and permanent alteration of forest habitat, despite the Defendants’ claims that they had minimized the harm that they caused.

“The trail network at the heart of this trial is part of a large expansion of motor vehicle use on the Forest Preserve. The level of tree cutting, grading, and vast alterations of the Forest Preserve to build a network of road-like trails goes well beyond what is allowed under the forever wild provision of the State Constitution,“ said Peter Bauer, Executive Director of Protect the Adirondacks.

PROTECT’s lead attorney John Caffry said “nothing less than the future of the Forest Preserve is at stake in this case. In 1930 PROTECT’s predecessor organization, The Association for the Protection of the Adirondacks, convinced the courts to block the cutting of 2,500 trees on the Forest Preserve for the construction of the ‘bobsleigh run’ for the 1932 Winter Olympics. If the massive destruction involved in the building of the Class II trials is not likewise blocked, then the state will continue to ignore Article 14 and build more and more destructive projects on land that the Constitution requires ‘be forever kept as wild forest lands’ ”.

PROTECT was represented in the trial by John Caffry of Caffry & Flower in Glens Falls and Claudia Braymer of Braymer Law, PLLC in Glens Falls, with additional trial counsel provided by William Demarest, III of Tooher and Barone in Albany. The Defendants were represented by the state Attorney General’s Office.

Protect the Adirondacks, Inc. (PROTECT) is a privately funded, IRS-approved not-for-profit organization dedicated to the protection of the 6-million-acre Adirondack Park in northern New York. PROTECT was formed through the merger of the Association for the Protection of the Adirondacks and the Residents’ Committee to Protect the Adirondacks in 2009. PROTECT pursues its mission to protect the Adirondack Park and defend the public “forever wild” Forest Preserve through citizen advocacy, grassroots organizing, education, research, and legal action. PROTECT is governed by a volunteer Board of Directors. PROTECT maintains an office in Lake George. For more information, visit their website.


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22 Responses

  1. Charlie S says:

    “the State argued that only about 6,200 trees had been approved to be cut on about 29 miles of trails, PROTECT proved at trial that over 25,000 trees will be cut, if trees under 3” DBH are counted..”

    The State! Their definition of trees is different than PROTECT’s evidently. As if a tree isn’t a tree until it is in an advanced stage of life. The ‘board feet’ mentality. That’s what happens when you let special interests bend you. The State should be on the defense for trees but instead they are being guided by voices that say, ‘We give you x amount we want this in return.’ A controlling influence. A lobby! What else can it be? Especially so when you consider they’re job is to protect the forests, to keep it wild….as in motor free, which is not what we have everywhere else. The Adirondacks are entitled to reverence and respect! They should be considered holy ground. To some of us it is.The State! They don’t get it! Not like they used to anyway! They’ve been tainted for far too long.

    • A Local Rresident says:

      This was a constitutional case. the Constitution protects “timber” and not “trees” The 1915 Constitutional Convention took up the issue of changing “timber” to “trees” and the proposal was ultimately rejected – leaving the law of the land NOT protecting “trees” but “timber.” Later cases (McDonald and Balsam Lake) clarified that the constitutional prohibition against destruction of timber was not absolute, but one of materiality.

      The court, early on in the case, found in Summary Judgement, that the state’s actions with respect to the State Land Master Plan were not a violation, leaving just the constitutional (timber) issue to be decided at trial.

      Since the issue is one of timber and not trees, the issue of at what size does a tree become timber is fundamental to the case.

      • Charlie S says:

        “…the issue of at what size does a tree become timber is fundamental to the case.”

        Aside from what words on a piece of paper may say a tree will always be a tree….to me! And isn’t it true that when we use the word timber we’re talking more than one tree so that two trees or more would be considered timber and that a solo tree is still considered a tree? The Oxford and Cambridge dictionaries say so! The size of a tree has nothing to do with the usage ‘timber.’ To clarify!

        • A Local Resident says:

          Oxford English Dictionary – timber (n) –
          (1.1) Wood prepared for use in building and carpentry; (1.2) A wooden beam or board used in building a house or ship; (1.3)
          Used to warn that a tree is about to fall after being cut; (2) Personal qualities or character.

          Origin – Old English in the sense ‘a building’, also ‘building material’, of Germanic origin; related to German Zimmer ‘room’, from an Indo-European root meaning ‘build’.

          Cambridge Dictionary – timber (n) – (1) trees that are grown so that the wood from them can be used for building; (2) wood used for building; (3) a long piece of wood used for building, especially houses and ships.

          Charlie, I’m confused … where do the two referenced dictionaries indicate that trees (particularly the little ones) and timber are the same?

          While I admire your evident passion that all trees in the forest preserve “should” be protected, the Constitution and the sentiment of the delegates to the 1894 and 1915 conventions didn’t agree with you. Apparently, subsequent conventions did not see the need to take up the issue either. Those “words on a piece of paper” aren’t just words, they are the law.

          • Charlie S says:

            We’re not talking carpentry or beams or houses or ships or trees falling down, etc. We’re talking timber in a forest as defined by a law in the NY State Constitution which, when enacted, was surely designed to favor capitalism not the protection of our forests. If you look at the Cambridge definition it says ‘trees’ not tree. The Oxford is the same…trees not tree. As in plural not a single unit. Just an observance is all but I wonder how this might apply to the ruling that comes out of this lawsuit filed by ‘PROTECT’ against the DEC and the APA!

            Maybe i’m off on this but since the use of slight technicalities (aka tweaks in the law) always seems to be the one-ups lawyers use when one party is trying to win over another in lawsuits I wonder how this may apply to ‘PROTECT’s’ action. Maybe i’m missing something here. It ‘must be’ because surely somebody else would have thought about this by now.

            You ask: “where do the two referenced dictionaries indicate that trees (particularly the little ones) and timber are the same?”

            I never said that. I implied, by the dictionary definition, that timber always implies ‘trees’ not tree. Per instance Cambridge defines Timber thus – ‘wood from trees that is used for building, or trees grown for this use.’ Go to any dictionary…timber always implies trees not tree in the sense we’re talking here.

            And then when I read what you wrote, that the……. “1915 Constitutional Convention took up the issue of changing “timber” to “trees” and the proposal was ultimately rejected – leaving the law of the land NOT protecting “trees” but “timber,” …. I get to thinking, What does this have to do with the size of the tree since a tree is a tree and timber is two trees or a hundred trees or a thousand? PROTECT says that over 25,000 trees will be cut, if trees under 3” DBH are counted.. Yet the State says only 6,200 trees will be cut. How many feet apart do trees have to be away from each other to not be considered ‘timber?’ I’m curious. Always I am curious!

            Timber and tree are two different animals according to the dictionary. Yet the DEC doesn’t count a tree as being a tree unless it is yay big (according to its ‘timber’ standard.) Go figure! And just so they can build more roads into the Adirondacks whereas they should be protecting the wilderness not giving it away to motor-heads.

            • Paul says:

              If trees is what they were concerned about why didn’t they just say trees? They said timber. That seems to indicate the protection of something other than simply trees to me. If they meant wilderness why did they say wild forest lands (obviously not the DEC classification but something other than wilderness)? Seems like why we have these other classifications now. What the court needs to determine is what the thinking was at the time. If we want to now modify the law to be more protective than just “timber” resources then why not talk with the legislature – rather than the court?

              “Timber and tree are two different animals according to the dictionary. Yet the DEC doesn’t count a tree as being a tree unless it is yay big (according to its ‘timber’ standard.) Go figure!”

              Charlie, I agree. It sounds like they were trying to get it right based on the law. Go figure.

              I think they were concerned about the large scale logging that was going on not a minuscule acreage of land like is effected here.

    • Ben says:

      you say Protect proved that over 25,000 trees will be cut, that is yours & protects opinion. Nothing was PROVED in the court, your opinion was given.

  2. Paul says:

    What matters in the case is the legal definition. We all go by the law. If we want it 3 inches than it should be 3 inches. If we want it bigger it can be bigger. Yes, I think the focus back then and the major concern was timber not brush. Not my concern theirs. Even if it doesn’t pan out the law can be changed if the will is there. Article 14 was written for “timber” there is a precedent that names “trees”. Very interesting case.

  3. Bruce says:

    Bauer’s assertion that this is “well beyond” constitutes an opinion, not fact. Trees under 3″ could encompass anything with a single woody stem. I do agree that the SLMP could be spruced up with more concise definitions in these clearly more contentious times, which is not to say necessarily agreeing with Protect’s definitions.

    Be interesting to see how this shakes out.

    • John Warren John Warren says:

      “Trees under 3″ could encompass anything with a single woody stem.”

      No, trees are a thing. Woody shrubs and perennials are different things.

  4. Jim Britell Jim Britell says:

    Can we talk

    A trail is something made by feet to be used by feet. A road is something man made to be used by motors and wheels. A highway is a road that connects two settlements. What is being built in the Adks are highways and roads not trails.

    Snowmobile roads and highways will remain merely snowmobile-only “trails” until they are all built out and and a governor running for election or some judge decides that since you already built perfectly fine roads it is unfair, illegal or elitiist not to let ATV’s use them too. And if the ATV’rs are disabled and need medicine that must be refrigerated it is just common sense to let them bring along generators too.

    As long as the villages and towns mindlessly donate money to the AATV to pay them to lobby the governor for more roads in the forests this is what you will continue to get – more roads in the Adks.

    If any of the Adk so called “enviro groups” groups really wanted to stop snowmobile roads all they need to do is enlist 10% the thousands and thousands of downstate paddlers to lobby their own local state reps to stop this road building up here .

    Alas the entire repertoire of ADK groups consists of three things, 1. Bauer standing up by himself and arguing for wilderness, 2. Caffrey filing lawsuits and 3. every body else writing term paper to each other that nobody outside the Adks ever sees, or chasing feel good things like sustainable jobs and climate change that half the employees of the state are already paid to work on.

  5. Bruce says:

    Jim,

    I think the difference is trails (roads, or whatever else you want to call them) for snowmobile use assumes they will be used with snow cover which tends to protect the surface underneath. ATV’s, if not used on significant snow cover, tend to damage surfaces not hardened with compacted gravel or something else, like pavement. The damage from ATV’s on ordinary dirt roads has been showcased on here any number of times, along with the damage done by ATV’s off road by uncaring users.

  6. Paul says:

    I don’t know what AATV is but towns don’t “mindlessly” donate money to whatever it is.

      • Paul says:

        Thanks. Hope, is there any indication that towns and villages are donating mindlessly to this organization?

        • Hope says:

          They are all donating and they organized to protect their own interests from over zealous outside of Blue Line organizations from decimating their cimmunities. They don’t all have the same issues but they back each other up on things that they feel are detrimental to their communities. A locals lobbying effort.

          • Paul says:

            Looks like they pay dues. Not really a donation as I see it. It does look like a reasonable counter balance. Certainly not some high end lobby effort to me?

            What towns and villages participate?

  7. Boreas says:

    As I see it, the issue here isn’t simply about saving trees OR timber. The trees vs. timber vagary is simply a weak spot in the Class 2 trail agreement that is being used to attempt to stop Class 2 trails from being built. The overriding issue is not about total acreage affected or number of trees cut, but rather this type of trail construction that includes grading, cuts, bridges, and erosion mitigation efforts through wetlands. But more importantly, it is the overall effects of a motorized corridor through a wild area that wasn’t present before.

    To humans, it just looks like a rough road through the woods. To the land, plants, animals and insects, it is something entirely different. It changes the ecology of all of them – enabling a pathway for pests and invasives, encouraging populations of some species while harming others. It isn’t something that can effectively be discussed with spreadsheets and tallies. An analogy would be clearcut logging vs. selective forestry methods. The same amount of timber may be harvested, but the effects on the ecology are vastly different. The tree vs. timber debate is merely the foothold to allow a legal case to be brought against this type of construction – be that good or bad.

  8. snowman says:

    The issue at hand is that most of these new “community connector multi-use TRAILS” is that they are being required to be built according to the 2009 APA Snowmobile Trail Siting document that was produced by DEC and APA, driven by environmental groups to push the already-built snowmobile trails from within the interior of the Forest Preserve to “within 2 miles of roads”. So, by requesting that ALL NEW TRAILS be built in wooded sections, being removed from old carriage roads and DEC admin/fire roads, who wouldn’t expect that trees of any size would need to be removed?
    These extreme groups got their way when they wanted to snowmobilers removed from some of the most beautiful wintertime scenery locations in the Adirondack Park and closer to the roadways, keeping the interior of the Forest preserve to themselves, and then sue when the activities that require a new trail be built are performed. Trees need to be cut down to get the trail located, NO?
    This is a disguised attempt to remove snowmobiles from the Adirondack Park’s state-administered lands. Don’t be fooled! One more successful legal determination, and PROTECT will lose another major lawsuit! LOL
    And BTW…snowmobile TRAILS are not roads, sorry! These new community-connector MULTI-USE trails which snowmobiles also get to use when there’s sufficient snow-cover on the ground can be and are used by hikers the rest of the year. And are shared with snow-shoers and cross-country skiers in the winter months. Also, and a very important fact that is left out of these articles and discussions is that they were built in the same characteristic as a foot-trail, as required by that APA document.
    ATVs will not be allowed on these trails!

    • Jim S. says:

      No hiker I know would want to walk down a superhighway in the woods. The idea of snow-shoeing or skiing on a snowmobile road is equally crazy because of the noise and the god awful stink of those motorized vehicles.

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