Thursday, July 4, 2019

State Tree Cutting on Forest Preserve Ruled Unconstitutional

A typical view on a class II community connector trail where 1000 trees a mile are destroyed by state agencies provided by ProtectThe Appellate Division, Third Department, ruled Wednesday that state tree cutting to build a network of wide class II community connector snowmobile trails in the Adirondack Forest Preserve violated Article XIV, Section 1 of the State Constitution. The Appellate Division, Third Department, reversed a lower court ruling issued in 2017.

Protect the Adirondacks had challenged the constitutionality of cutting more than 25,000 trees to build over 27 miles of new snowmobile trails in the Forest Preserve. The lawsuit was started in 2013, injunctions against further tree cutting were ordered in 2016, and a bench trial was held at State Supreme Court in 2017.

Article XIV, Section 1, of the New York Constitution, states, in relevant part, that “[t]he lands of the state, now owned or hereafter acquired, constituting the Forest Preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.”

“This is a great day for the public forever wild Forest Preserve. This is a major decision in the history of the Forest Preserve and protections in Article 14, Section 1, of the State Constitution. The 3-million acre Forest Preserve is the finest state-owned public lands system in the United States and has been protected and expanded through a multi-generational, bipartisan commitment of New Yorkers for over 130 years,” Peter Bauer, executive director of Protect the Adirondacks, said in a statement sent to the press. “The Appellate Division, Third Department, decision is a major victory because the court ruled that the level of tree cutting necessary to build a network of road-like trails constituted an unconstitutional destruction of timber on the Forest Preserve.”

The decision focused on two central points that were contested during the 2017 trial: 1) that the level of tree cutting by the state to build class II trails exceeded the level of tree cutting proposed in other state actions that were contested in court in prior decisions (MacDonald, Balsam Lake) regarding Article XIV, Section 1. 2) That the framers of the state constitution’s “forever wild” clause did not limit protections against substantial tree cutting to only large, merchantable “timber;” that the use of the word “timber” in its historic context included all trees regardless of size; that small trees, which can often be over 75 years old or older, are ecologically important to the functioning of the forest ecosystem and must be considered in state management decisions.

The court stated:

We agree with Supreme Court’s determination, based on the expert historian’s testimony as well as other evidence, that the use of the word “timber” in the constitutional provision at issue is not limited to marketable logs or wood products, but refers to all trees, regardless of size. Although tree size and maturity may be considered in determining whether a proposed project’s tree cutting is substantial or material, plaintiff presented expert testimony debunking the assumption that smaller trees are necessarily young or immature; some forest trees measuring less than three inches DBH can be more than 100 years old, and smaller mature trees play an important role in the continuing ecology of the forest. The court generally accepted the tree counts proffered by plaintiff, including for trees less than three inches DBH. Accepting those factual findings, approximately 25,000 trees either had been or would be cut to construct the trails.

The court concluded:

Although this project did not involve clear-cutting or the removal of a large swath of trees (compare Association for Protection of Adirondacks v MacDonald, 253 NY at 236), but instead necessitated destruction of narrow corridors of trees for many miles, we need to consider the entire project when determining its effects. The destruction of a substantial number of trees can be problematic whether those trees were together or spread out along one or more portions of the Forest Preserve. For example, the construction of these trails required the destruction, on average per mile, of over 200 trees at least three inches DBH and approximately 925 trees of all sizes. It would be anomalous to conclude that destroying 925 trees per mile of trails, or approximately 25,000 trees in total, does not constitute the destruction of timber “to a substantial extent” or “to any material degree” (id. at 238; see 1954 Ops Atty Gen 157 [concluding that the constitutional provision prohibits relocating a portion of existing highway in the Forest Preserve that would involve the cutting of approximately 5,000 trees]). Thus, the construction of the Class II trails resulted in, or would result in, an unconstitutional destruction of timber in the Forest Preserve.

“The constitution does not provide protections to some trees but not to others. It provides protections to all trees. State agencies have been allowed to undertake any number of management activities on the Forest Preserve in order to maintain and protect it and provide for public recreational activities, provided that the destruction of timber does not occur ‘to a substantial extent’ or ‘to a material degree.’ The court found that cutting of 25,000 trees to build a network of class II trails violates longstanding policy and is unconstitutional,” Peter Bauer said.

“The Cuomo Administration has made the expansion of motor vehicle use of the Forest Preserve one of its biggest priorities in the Adirondack Park. Hopefully, this decision today will put the brakes on the Governor and state agencies. There are a wide variety of public recreational activities that can be facilitated on the Forest Preserve, but must be managed in a way that complies with the State Constitution and the forever wild protections.”

The court decision can be read here.

Photo of a class II community connector trail cut.

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28 Responses

  1. Boreasfisher says:

    The notion that class 2 trails of the proposed width– 9 to 12 feet– have the character of “foot trails”, the designation used to grandfather larger modern snow machines onto protected public land, is absurd and has always been so.

    This important ruling based on preservation of timber makes that more abundantly true.

  2. Scott says:

    The Appellate Court decision defining state trees and timber as all trees regardless of size criminalizes all tree cutting regardless of size whuch helps the rangers when working within the criminal procedure law for investigations and enforcement.

  3. Todd Eastman says:

    Good!

    😊😊😊

  4. Norman Howard says:

    Congratulations to Peter Bauer for several years of intense work.

  5. Howard says:

    Let’s just close everything down in the ADK. Shut up all the towns & move everyone out. Put all hiking trails off limits. This will get appealed! And in the end, this just makes those OLD LOGGING roads look all that much more appealing to the DEC to use as new snowmobile trails. Don’t need to cut trees down on a road that already exist

  6. Kyle Scott says:

    Isn’t is said when private groups need to protect the park from the State government. (read; State Corporation).

    I wonder who was going to get all those lucrative contracts to cut & remove all that nice lumber?? Also wonder if the kind of lumber available, i.e. nice old growth trees, was influencing where those trail were going to be?

  7. Jim S. says:

    Won’t this make the proposed bridge over the scenic Cedar river useless ?

    • Boreas says:

      One would think so. I doubt we have heard the last of either issue. If it’s against the rules, change the rules.

  8. Robert DiMarco says:

    Thank you court. I wish someone could ask Cuomo to stop loving snowmobiles!!

  9. Robert DiMarco says:

    Thank you court. I wish someone could at Cuomo to stop loving snowmobiles!!

  10. Paul says:

    Interesting ruling, any tree is “timber”. Can’t really cut any twigs for any trail right? What is the size restriction?

  11. Paul says:

    “all trees, regardless of size”

    That’s it right there.

  12. Dave says:

    Open up the logging roads now. Keep the Polaris bridge & fix it up. Don’t need to cut any trees doing that

  13. Peter Bauer says:

    “Timber” in the historic context of the late 19th century and early 20th century was often used to refer to a stand of trees of all sizes. Read Headley or Nessmuk or the others. There’s nothing in the constitutional debate or law that frames the issue as forever wild only protecting large, merchantable trees. The 1894 constitutional debaters used “trees” and “timber” interchangeably. Read the debate. The two prior Article 14 cases both dealt with big and small trees. This case saw testimony on the high volume of trees cut or flagged to be cut, over 25,000, and that many shade tolerant small diameter trees in the understory were actually 50, 60, 75 years old or older. The state can still cut trees on the Forest Preserve for management activities as long as they do not do so to a material extent or substantial degree. Think of the tree cutting of several dozen trees to build the 2.5-mile Moxham Mountain Trail. In this case, cutting hundreds of trees per mile, and upwards of 1,000 in some case, to clear a 12-foot-wide swath through the Forest Preserve was found to exceed a reasonable standard.

    • Boreas says:

      Peter,

      IS there a “reasonable standard” on the books for new construction of any type of trail – or will this be hashed out on a case-by-case basis for all new trails or roads? One example would be new trails and parking areas projected for Boreas Ponds and other new acquisitions and projects.

  14. Peter says:

    Article XIV Section 1 states that no trees may be cut or removed from state lands in the Forest Preserve. This was written in 1894 when the state owned a fraction of the lands they do now.

    The Adirondack Northway required a right of way of several hundred feet going through forest preserve lands and thousands of trees were cut for the Interstate highway. Power lines were also built on state forest preserve lands and don’t forget the Olympic ski area on Whiteface Mountain.

    We seem to pick and choose how to use Article XIV.

    • Peter Bauer says:

      The Northway was undertaken after a constitutional amendment to Article 14, Section 1, one of many passed through the years. It followed the standard process. Many things have been done in the Adirondacks through such constitutional amendments, such as Gore and Whiteface Ski Areas, among others. Seeking a constitutional amendment to build class II trails was always an option available to the Cuomo Administration, but they preferred to bend the Park’s laws, policies and regulations as far as they could — and now they broke it.

  15. Sandpond says:

    Is the tree cutting/bulldozing going on now at Gulf brook road for any other reason than the snowmobile trail? Also much thanks to Peter B!!

    • Boreas says:

      Sandpond,

      My understanding is that they are creating/enlarging parking areas, repairing roads, and are to put in a short trail for people with disabilities somewhere near the dam. In other words, mostly automobile access-based modifications along the road. At least that is what we were told this spring. I don’t know if anyone is monitoring the situation. I haven’t heard about them starting on the snowmobile trail in that area, but you may have more info than me.

  16. Paul says:

    I wonder how many trees are “removed or destroyed” (as per article 14) by hikers and others on FP land each year? Obviously article 14 allows insignificant impacts on the timber resource.

    For the court what should matter is not the number of trees but the total acreage impacted and what is the relative to the total acreage of the FP land in the park.

    Let’s call the total 3 million and for this project let’s be generous and call it the entire trail. 27 miles by 12 feet wide. According to my calculation that is about 1.7 million square feet or about 39, lets call it 40 acres.

    If you use most calculators the answer would be zero. But it’s actually 0.000013 of the total.

    • Boreas says:

      Paul,

      Perhaps to a court, you are correct. To groups responsible to protect the park from invasive species and diseases, there is a big difference between 40 acres in one spot and a 27 mile corridor with vehicles and foot / equestrian traffic. The DEC and APA both know this and decided to go ahead anyway. I don’t have an answer to the dilemma, but perhaps the proper research should be done BEFORE starting the chainsaws.

    • Peter Bauer says:

      Sorry, Paul.

      Read the state’s papers as they made the “de minimis rule” argument that you make and it was rejected by the court. Article 14 does not deal with acres. The framers specifically (and famously) added protection against timber (trees) being “destroyed” during the debate and organization of Article 14. 25,000 trees is a lot of trees by any standard and the Appellate Division, Third Department, rightly ruled that destruction of this number of trees violated the constitution.

      • Paul says:

        Thanks for the reply. It just seems like the standard that might be set here would require a constitutional amendment for any substantial (or maybe any) trail work on Forest Preserve land.

        • Paul says:

          100 trees easily seems like a lot of trees if it isn’t relative to something. I have just a few trees on the lot where my house is, relative to what I have 1 is a lot.

        • Boreas says:

          Paul,

          I agree. It doesn’t seem the courts are the proper place to manage the FP. What about the possible future removal of large numbers of diseased trees to head-off invasives / diseases spreading through the FP? Fire-suppression? Trail/road building of any type? It seems like an amendment should be made to develop guidelines for ALL foreseeable types of cutting actions that may be necessary or desired in the future.

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