Monday, August 19, 2019

NYS, Protect Both Appealing Forest Preserve Decision

A typical view on a class II community connector trail where 1000 trees a mile are destroyed by state agencies provided by ProtectAdirondack Forest Preserve advocates Protect the Adirondacks announced Monday that they plan to appeal one of the July 3rd rulings by the Appellate Division, Third Department, in its lawsuit challenging the tree cutting and terrain alterations for snowmobile trails on the Forest Preserve by state agencies. The State announced last week that it also planned to appeal part of the ruling.

The court issued a mixed decision in July. It ruled that the cutting of over 25,000 trees on the Forest Preserve for wide class II community connector snowmobile trails violated Article 14, Section 1, of the NYS Constitution. At the same time however, the court ruled that the construction practices used to clear, bulldoze and grade these trails did not violate the famous forever wild provision of Article 14.

The New York State Constitution’s Article 14 protects the Adirondack Forest Preserve as “forever wild.” Adirondack Forest Preserve lands form the basis of the Adirondack Park.

The State plans to appeal on the tree cutting issue (you can read more about that at Adirondack Explorer). Protect the Adirondacks says they will file a cross-appeal on the forever wild issue. Both sides have filed notices of appeal, and it is likely that briefs will be filed by the end of the year. The appeals will be heard by the NYS Court of Appeals, the state’s highest court.

In July 2019, 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 34 miles of new snowmobile trails in the Forest Preserve. The lawsuit was started in 2013, injunctions against further tree cutting were granted in 2016, and a bench trial was held in state Supreme Court in 2017.

Article 14, 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.”

“Protect the Adirondacks will vigorously defend the Appellate Division’s ruling that found that cutting over 25,000 trees violated the state Constitution’s prohibition on destroying timber on the Forest Preserve” Peter Bauer, Executive Director of Protect the Adirondacks, said in an announcement of the appeal Monday.

The Appellate Division’s decision on that issue 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 (Association, 1930; Balsam Lake, 1993) regarding Article 14, Section 1; and (2) That, contrary to the State’s position, the framers of the state Constitution’s Forest Preserve clause did not limit the protection against 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 diameter trees, which can often be 75 years old or older, are ecologically important to the functioning of the forest ecosystem and must be protected from State management actions in the Forest Preserve.

The Appellate Division decision 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.

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.

“Protect the Adirondacks is cross-appealing because of overwhelming evidence at trial that the dramatic changes to the Forest Preserve caused by building 12-20 foot wide road-like class II trails that are graded and flattened are destroying the wild forest nature of the affected lands, in violation of the Forever Wild clause of Article 14. These trails become grassy fields cutting through the forest that disrupt the ecology of the Forest Preserve,” Bauer’s statement said.

The Appellate Division’s decision has already forced state agencies to revise their plans for activities that involve tree cutting on the Forest Preserve. Dave Winchell, of DEC Region Five, released the following statement on behalf of DEC:

“Stewardship projects that involve tree cutting planned for this year are being reassessed in light of the court decision that limits tree cutting on the Forest Preserve. DEC is reviewing the decision and considering its options going forward.”

Protect the Adirondacks’ position is that “the Appellate Division’s decision upheld the preexisting limit on tree cutting that is found in the state Constitution, and that DEC should reassess its plans, to bring them into compliance with the 125 year-old constitutional mandate that the trees in the Forest Preserve, and the wild forest nature of those lands, must be protected.”

Photo of tree cutting along a class II community connector trail provided by Protect.

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44 Responses

  1. From the decision, “Regarding the first contention, we agree with Supreme Court’s conclusion that construction of the Class II trails did not violate the “forever wild” clause.”
    In this decision the court found that the trails did not violate the Forever Wild Clause and dismissed the hyperbole expressed in Peter’s quote from his prepared statement that theses were 12 to 20 ft wide highways in the preserve.
    From the decision,” Thus, record evidence supports the determination that the trails are more similar to hiking trails than to roads.” The court accepted the factual evidence presented that these trails were generally 9ft wide and 12 ft on curves.

    • Jim Fox says:

      I am not a lawyer, forester, snowmobiler or constutional scholar, but my understanding of conservation includes forest management. Is the removal of some trees to make for a healthier environment for others deemed more valuable, unconstitutional? Forest management is not clear cutting.

  2. Bob Glennon says:

    Watch out Dom, the parties agreed not to litigate the constitutionality of snowmobiles themselves in this case, and I for one found it significant that in his 2017 opinion Judge Connolly noted that > once.

    Maybe, just maybe, when the day comes that your plastic buzztoys are electric and float above the ground like those things in Star Wars, I’ll begrudge their constitutionality. But not one femtosecond before.

    • Howard says:

      SO I guess 245 million in economic input into the ADK, seems like a bad thing for you!

      • Dana says:

        Howard

        Since when is constitutionality determined by revenue?

      • Bob Glennon says:

        You want economic input? I’ll give you economic input. Depending on what day you read the Enterprise, the State is dumping $160 million or $100 million on top of that into the money sewer that is ORDA, and not one thin dime for more Forest Rangers, who average about a rescue a day. To compound the felony, DEC has made them do meter maid duty, in support of some ill-conceived effort to deal with overuse–or maybe not; they don’t seem to know.

        Pick one: the so-called World University Games, or saving lives, lives of our fellow citizens and visitors who need rescue from our precious Forest Preserve.

        • John says:

          Does ORDA fund the creation of trails? What do they have to do with the appellate process? And, according to the Enterprise, ORDA received 80 million for 2019. In contrast, the Enterprise reports that the DEC currently employs more rangers than in any time in the state’s history.

          Reasonable people can argue about the funding for various state agencies, but at least get the numbers right.

          • Boreas says:

            John,

            Don’t drink the DEC’s Kool-aid – they are talking statewide. More Rangers statewide does not mean there is an adequate number in the Adirondacks. You can’t add thousands of acres and increasing numbers of hikers (requesting more search and rescues) to the Park without adding MANY more Rangers to patrol those acres and trails. Within the Park, Rangers/square mile has been decreasing essentially since the last recession. Ask any Ranger – if you can find one. The most likely spot would be performing parking control along RT 73 and NOT on a backcountry trail.

        • ROBERT DIMARCO says:

          Get rid of snowmobiles! No need for them in the adks. When are we going to start worrying about our MOTHER EARTH vs jobs?

          • howard says:

            So I guess you prefer all the towns in the ADK that rely on snowmobiles to remain solvent in the winter should just close down & go away.

            • John Warren says:

              There are no towns in the Adirondacks that rely on snowmobiles to remain solvent. The role of the snowmobiles in our economy is wildly overstated with studies that are more PR for the snowmobile lobby, than academically rigorous. Except for a relatively few businesses in a few places which make most of their money on snowmobilers – if and when there is snow – snowmobiles have little impact generally and cost a great deal of tax money for their support. And no, snowmobiles do not pay for snowmobile trails, their registration fees support their own private trail networks which are almost all not open to the public, and even these cost local people who pay for search and rescue, highway shelf cutting, and a whole lot more. Of course these points tend to fall on the deaf ears of people who really believe that they are some kind of saviors of our economies.

  3. Howard says:

    2012 Potsdam report on the economic impact of snowmobiling in the state & the Adirondacks. And tell that to the towns that wouldn’t survive in the winter without snowmobiling.

    • John says:

      There was no report in 2012. The New York State Snowmobile Association paid for the most recent report, in 2011. The 2011 report relied upon online surveys, which are inherently problematic. But no matter the funding or methodology, the 2011 report gave no findings on the economic effect of snowmobiling in the Adirondacks.

      • howard says:

        My typo. It was 2011. But it still stated that snowmobiling generates 868 million annually in the state of which 245 million is generated in the Adirondacks. You can piss & moan about how the report was created but then again reports of this size on any subject are based on written responses to questions posed to NY State individuals. Take any survey about the Adirondacks & it is partially based on response to questions to generate the article. The fact still remains that snowmobiling generates a sizable income to the towns in the ADK & if cutting down a few trees helps connect those towns then so be it. Walk the 7th Mountain Lake trail in the summer. You’d be hard pressed to know that it is a major snowmobile connector trail connecting Moose River Plains to Inlet.

        • John says:

          Perhaps you should take a look at the report. They made no attempt to allocate the economic impact by region. The “245 million” number has no basis in reality. If you want to argue for the positive impact of sledders, then don’t manufacture numbers — it hurts your credibility.

          • howard says:

            you can hate the facts for all I care, but in the end everything is just based on your opinion. Opinions are like asses, everyone has them & some just stink more than others. Try to figure out where yours belongs!

            • Trailogre says:

              That’s right
              those trees are blocking my view of the forest anyway……

              As I snowmobile thru at 75 mph……

              • howard says:

                If you think you can go 75 mph on trails built by the DEC, then you’ve NEVER ridden on one of their trails. Take a walk on the 7th Mountain Lake trail & see how rough it is. How narrow it is. It is a main connector corridor trail between Moose River Plains & Inlet to go on to Raquette Lake. I have a hard time going 20 mph on it. And according to the Protect weenies it is a high speed snowmobile trail

                • Boreas says:

                  Even 20 mph seems pretty fast to me in the mountainous ADK backcountry. Even highways have sections where you must slow down. But this particular section of connector trail is often brought up to illustrate how rough it is, so it must be the exception to the rule – especially new Class 2 construction. The term “high speed” is relative to Class 1 trails, not interstates.

  4. Bob Glennon says:

    The Enterprise articles have been all over the lot; they’re consistent that in the last two FYs State bailout totalled ONE HUNDRED AND SIXTY-MILLION BLEEPING DOLLARS! Then more recently they ran one detailing (another?) HUNDRED MILLION DOLLARS to make that stupid exterior-braced white box down by the speedskating oval even uglier.

    Hey look, it’s my bad to have diverted us from the issue at hand: those awful, noisy, smelly machines on Forever Wild. Having re-read the Court of Appeals and the Appellate Division decision in MacDonald, I have a glimmer, just a glimmer of hope, that our courts, and surely thereafter our citizenry will banish the infernal machines from the garden.
    (Leave me alone; that’s a literary reference. I was an English major.)

    My best regards to all. Nyah hah hah, Bob.

  5. Chester. Zbytek says:

    There is a little access to the trout streams .the culvers are everywhere can’t park

  6. Phil Terrie says:

    The issue before the court is not whether or not snowmobiling contributes to the winter economy. It does. We can argue about how much, but it’s clear that money comes into the Adks because of snowmobiling. The issue here is whether or not the state’s plan for developing new trails on the Forest Preserve is constitutional. The Appellate Court said it isn’t. The Court of Appeals will reconsider that decision. Constitutions matter. We should do what they say or change them. The NY Constitution, as interpreted now by 3 major decisions, says the state cannot cut down thousands of trees on the FP, for any reason. Those 3 decisions, btw, also make it abundantly clear that as far as the courts are concerned, the state CAN conduct the minimal cutting needed for foot trails. Suggestions from the DEC and others that foot trails are suddenly in danger is nonsense, designed to inflame public opinion.

    • Boreas says:

      Thanks Phil for getting us back on track.

      I don’t understand (well, actually I do) why most of these construction vs. constitutional DETAILS weren’t hammered out at the inception of the Class 2 trail discussions. The DEC should have figured they were going to be challenged in court at some point. The published construction details are vague enough to give DEC maximum latitude in constructing these trails – which is understandable – but that doesn’t necessarily make those guidelines constitutional. I guess they thought it would be easier to ask forgiveness than ask permission, which seems to be the way Albany works now. Kids, get your law degrees now!

    • howard says:

      You are incorrect, the judge says that building the snowmobiles trails is LEGAL, he just interpreted the allowable size of the trees to not be cut down as including everything down to twigs in size. We will win in the end since the state already was permitted to cut down many, many, many trees to expand the Olympic Ski are in Lake Placid. It will get overturned!

      • Phil Terrie says:

        No, I am not incorrect. If you read my comment carefully, you will note that I said, “the state’s PLAN for developing new trails” is unconstitutional. The plan required, the court opined, excessive tree cutting and was thus unconstitutional. I did not say that snowmobile trails, as such, are constitutionally prohibited.

      • Todd Eastman says:

        Those trees were cut on Town of North Elba land…

        … not a similar situation…😊

        • Boreas says:

          I agree – certainly no similarity.

          Depending on what you read about MvH, no trees were to be cut on FP land, but they are saying some were cut. Now they are trying to figure out what to do with the trees they didn’t have a mandate to cut. The constitution says they cannot be removed, sold, or destroyed, but they have a big pile of logs cut from the FP. Oopsie! As you say – sh!t show.

      • Todd Eastman says:

        My wrong, sorry…

        Cutting on FP lands at Van Ho makes this a shit show…

      • Boreas says:

        What am I wrong about, exactly? I said nothing about the legality of the trails, only details of their construction. Until the legal battles are over, (or the constitution amended?) no one is right or wrong.

    • roger dziengeleski says:

      If the court says you cannot cut trees for any reason on the FP, then you cannot cut trees. Don’t see how you can say it is OK to cut trees on hiking trails but not other similar trails. This court ruling if taken literally, would imply you should not walk in the FP as doing so may take “timber”. Essentially, we are debating when does a tree become a tree (Roe v. Wade?). Evidently some believe a tree is only a tree if it grows on a proposed snowmobile trail.

      The Park is a tremendous recreational resource and is larger than some states. There is plenty of room for all outdoor recreational uses. This debate is territorial as one group wants its use only (wilderness and hiking), to the exclusion of all others. Very elitist.

      • Phil Terrie says:

        Read the 3 decisions. They make it perfectly clear that some tree cutting is allowed. The constitution means what the courts say it means, and the courts say that tree cutting for foot trails is legal. It’s not my opinion. It’s the opinion of the NY courts. This attempt to insist that all of a sudden no tree cutting is permitted is absurd, a ploy calculated to get people upset over a non-issue.

        • roger dziengeleski says:

          I have read all three decisions. They don’t say anywhere cutting “timber” is ok on hiking trails and not ok on snowmobile trails.

          • Phil Terrie says:

            From MacDonald: “Therefore all things necessary were permitted, such as measures to prevent forest fires, the repairs to roads and proper inspection, or the erection and maintenance of proper facilities for the use by the public which did not call for the removal of the timber to any material degree.” The operative words are “did not call for the removal of the timber to any material degree.”

            From Balsam Lake: “We are similarly unpersuaded that the addition of five new parking areas and the relocation and construction of certain trails as proposed in the unit plan are improper uses of the forest preserve and/or involve unconstitutional amounts of cutting.” The operative words are “construction of certain trails.”

            I’m done here.

  7. howard says:

    We can continue to argue to disagree. The state will in the end do what it wants to do; trails will be built. It’s the same old tired argument the ASR uses on the travel corridor. Trails will be built & rails will be gone. Just a question of how long & how many court cases folks want to do. The state has a unlimited budget to fight this. Do the trail weenies!

    • Boreas says:

      Howard,

      Who is disagreeing? As you say the DEC will do what it wants – no arguement there. The question is, will what they do be legal, or will they need to make more verbiage changes and amendments before they continue like with the rail corridor? We both know the connector trail will be built. But to some of us, the issue is more about the constitution and less about the politics involved with circumventing it.

      Remind me – are the “trail weenies” the people wanting the trails or not wanting the trails? If we are going to call people names, let’s get the terminology straight. It gets pretty confusing when derogatory terms switch from issue to issue. Perhaps “trail advocates” and “trail opponents” would be more descriptive and less inflammatory. It is only a few more letters to type…

  8. adkDreamer says:

    “The Life of the Law”, Alfred H. Knight, 1996.

    There is very little about law that is absolute and this applies to constitutions as well. The only reasonable expectation that society can expect from law is that the words and phrases that comprise law can and will be interpreted to support a decision made elsewhere, and its effect played out in a star chamber. Money trumps politics, and politics trumps law.

  9. Stephen Kutney says:

    Those strict constructionists of the NYS constitution who support no cutting at all must also support the US Constitutions 2nd amendment which says no gun laws at all. It’s one or the other. The fact is that if you don’t have people using the FP then you will not have people who support the preservation of the preserve. People who don’t use it will not understand it’s value.

    100-year-old 3-inch trees is not a healthy forest. Nor is a forest full of invasives. That’s what the FP is right now. Very little “Timber.”

    • Boreas says:

      Stephen,

      FWIW, the second amendment says nothing of the kind.

      Our 100-year, 3-inch tree forest illustrates a forest just starting to rebound from logging and fire. It is fairly healthy, but far from robust and mature. It will probably be 5-10 centuries before it is a healthy, mature forest again – especially if it continues to shift toward more slow-growing hardwoods with continued warming.

  10. Stephen Kutney says:

    Boreas,

    What part of “shall not be infringed” don’t you understand? My comments are not about the second amendment but are about how constitutions are interpreted. Does “Forever Wild” mean that you don’t build a shopping plaza? It just depends on who is the judge and how persuasive are the lawyers.

    The forest preserve is not healthy. The reason you have a 100-year-old 3inch tree is because of the lack of light from invasive and intrusive species. Many hardwoods need light. The FP is full of shade-tolerant intrusive beech. The beech are sick from beech bark disease. When a beech tree dies they grow more trees from root suckers which grow more beech from root suckers. None will grow to maturity. Unfortunately, a massive effort is required using brush saws, chain saws, and chemicals before the FP has any chance of returning to what it may have looked like in the past. If you look at the Forest Connect Youtube channel you can find out what private forest owners are doing about the invasive problem.

    FWIW, a 100-year-old 3-inch tree will not grow even if it’s exposed to light.

    Steve

    • Boreas says:

      Steve,

      What part of “well-organized militia” do you not understand? When we had virtually no standing army, the 2nd amendment was pretty important. But I agree, a constitution or law is only as good as its wording and who is interpreting it.

      I believe I mis-interpreted what you meant by the forest not being healthy. What we both are describing is a forest recovering from being denuded roughly one generation of many tree species ago. What I said was the FP is fairly healthy, but far from robust and mature. Is it under stress – of course – it will be for many generations of trees to come. Stress from depleted and damaged soils, warming, acid rain, invasives, etc.. And this stress opens the forest to disease. But disease is also a natural process – especially in a stressed forest. Stress and disease are part of forest succession.

      But succession to what? Do we really know? We can’t level a forest and expect it to grow back to the same forest within 1-2 generations of trees. Will it ever look the same as before it was decimated – no, because conditions are different now. Will it eventually sort itself out without our help – yes. I think that is where we part ways. I don’t feel the FP should be aggressively managed to the extreme to eliminate disease because I do not feel we are capable of doing it. Cutting trees or thinning to manage one disease will likely leave the forest susceptible to different stresses and diseases.

      We can’t put the genie back in the bottle because the conditions that are required to grow the forest we denuded (and would like to re-grow) no longer exist here. So using the concept of the pre-Columbian forest as a basis for what is considered a healthy FP today doesn’t really make sense to me.

    • John says:

      Like most rights, the right secured by the second amendment is not unlimited. Laws need interpretation and justices judge. That’s the job.

  11. Larry Roth says:

    A couple of points.

    1) Forever Wild is meaningless in the age of climate change. The Adirondacks are being reshaped by what we are doing to the planet; the historic forests are going to be replaced by a different variety of vegetation better adapted to the ‘new normal’. We are changing the land as surely as if we were clear cutting it.

    2) Making the Adirondack economy ever more dependent on snowmobiles is folly. Freezes come later, thaws come sooner, snowfall mixes more and more with rain events… Building more snowmobile trails is a waste in a changing world. The snowmobile lobby may prevent DEC from even talking about climate change, but nature will not be silenced.

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