- Court of Appeals Rules in Favor of Protect the Adirondacks, Finds Cuomo Administration Violated Forever Wild Clause of State Constitution
- The Cuomo administration’s plan to expand motorized use on the public Forest Preserve in the Adirondacks by building hundreds of miles of wide Class II snowmobile trails was ruled unconstitutional by the state’s highest court.
- This historic decision will shape Forest Preserve management for decades to come.
The New York Court of Appeals, the state’s highest court, released a historic 4-2 decision today in favor of Protect the Adirondacks that upheld Article 14, Section 1, of the New York State Constitution, the famed “forever wild” clause. In 2013, Protect the Adirondacks sued the Department of Environmental Conservation (DEC) and Adirondack Park Agency (APA) alleging that construction of “Class II Community Connector” snowmobile trails on the Adirondack Forest Preserve violated Article 14, Section 1, due to excessive tree cutting and destructive changes to the land. Today’s ruling found that the cutting of over 25,000 trees and the clearing of 27 acres of forest, to build the first 27 miles of Class II trails violated Article 14. The APA and DEC have approved a network of hundreds of miles of Class II trails in the Adirondack Forest Preserve. The Court’s decision is likely to put an end to those plans, while still allowing for less destructive building and maintenance of other types of trails on the Forest Preserve.
Article 14, Section 1 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.”
The Court stated:
“We now affirm and hold that the planned construction of the Class II community connector trails would violate the constitution.” (p. 4)
“Further, the Class II trails require greater interference with the natural development of the Forest Preserve than is necessary to accommodate hikers. Their construction is based on the travel path and speed of a motorized vehicle used solely during the snow season. The trails may not be built like roads for automobiles or trucks, but neither are they constructed as typical hiking trails.” (p. 10)
“If the people of the State of New York decide that these Class II community connector trails are sufficiently beneficial, despite their impact on the Forest Preserve, then that determination may be realized through constitutional amendment. Indeed, other projects to enhance recreation or provide access by motorized transport have required constitutional amendment. Since its enactment in 1894, the forever wild provision has been amended 19 times; 4 of those amendments have come in the past 15 years. Those constitutional amendments have authorized, among other initiatives, the construction and maintenance of specific highways, ski trails, and bike lanes in the Forest Preserve. If a constitutional amendment is required for projects that enhance recreation (bobsleigh runs; ski trails) or improve mobility (roads) or do both (bike lanes within preexisting roads), then a constitutional amendment is also required to construct rights of way for a different form of motorized transportation (snowmobiles).” (p. 12-13)
“If the trails at issue here are equally important to New York as those projects were, then the people can express their will accordingly through the democratic process. Until they say otherwise, however, the door is closed because the planned Class II trails are constitutionally forbidden.” (p. 13)
“Protect the Adirondacks and conservationists across New York are delighted with the Court of Appeals decision. Forever wild means a lot more today, which will ensure that the Adirondacks are truly protected for the generations to come,” said Chuck Clusen, Chair of Protect the Adirondacks.
“This decision affirms the wisdom and foresight of the framers of Article 14, Section 1 at the Constitutional Convention of 1894 when they recognized that the executive branch of state government could not be trusted to protect the Forest Preserve from destruction, and so enshrined its protection in the Constitution, where the courts and the People of the State could protect it whenever the Executive Branch failed to,” said John Caffry, the lead attorney for Protect the Adirondacks in the case.
The Court of Appeals decision today follows a decision in July 2019 by the Appellate Division, Third Department, which ruled 4-1 in favor of Protect the Adirondacks that the tree cutting by the state to build the Class II trails violated Article 14, Section 1. The Appellate Division reversed the trial court’s ruling in favor of the state that was issued in December 2017 following a 13-day trial in State Supreme Court in Albany in early 2017.
In 2013, Protect the Adirondacks launched this lawsuit to challenge the constitutionality of Class II trails based on the unprecedented high level of tree cutting and environmental damage to the Forest Preserve’s terrain from extensive grading and flattening with heavy equipment. The first 27 miles of Class II trails (those constructed or approved for construction between January 2012 and October 2014), out of an overall plan to create hundreds of miles of such trails, involved the cutting of about 25,000 trees and the clearing of over 27 acres of forest in the Forest Preserve.
“The Court’s decision upholds longstanding precedent, and the public’s overwhelming support, for defending the unique and important constitutional protection given to the Forest Preserve. I’m proud to have been part of an amazing team that advocated for years to stop the state from cutting trees in the Forest Preserve in violation of that constitutional protection,” said Claudia Braymer, an attorney for Protect the Adirondacks in the case.
Here is the link to the decision: https://www.nycourts.gov/ctapps/Decisions/2021/May21/21opn21-Decision.pdf
Court of Appeals Decisions Upholds Forever Wild Clause in State Constitution
Today’s decision by the Court of Appeals is not only historic in its upholding of the forever wild clause, but also clarified key points in the public understanding of it. First, the Court ruled that the level of tree cutting by the state to build Class II trails was unconstitutional and exceeded the level of tree cutting permitted by prior court decisions in 1930 and 1993 regarding compliance with Article 14, Section 1.
Second, the Court’s decision stated that the framers of the State Constitution’s forever wild clause did not limit protections against substantial tree cutting to only large, merchantable “timber”, as DEC and its allies had argued. Third, the Court found that the use of the word “timber” in its historic context in the forever wild clause included all trees regardless of their size. Small trees that are less than 3 inches diameter at breast height (DBH), 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. Today’s decision should help to clarify state Forest Preserve management practices going forward.
Tree cutting is permissible on the Forest Preserve to facilitate public recreation, but that tree cutting has been strictly limited for the last 90 years by prior court decisions. In 1930, the Court of Appeals issued the Association for the Protection of the Adirondacks v MacDonald decision in which it ruled that state plans to clear 4.5 acres and cut down over 2,500 trees to build an Olympic bobsled track near Lake Placid violated Article 14. The Court established that limited tree cutting for a proper purpose was permitted, so long as it was not done to a “substantial extent” or a “material degree”. (Protect the Adirondacks is the successor organization to the Association for the Protection of the Adirondacks, which prevailed in the 1930 case; MacDonald was the Commissioner of the New York State Conservation Department at the time.)
In 1993, in the Balsam Lake Anglers Club v DEC decision, the Appellate Division, Third Department, held that very limited tree cutting on the Forest Preserve for building trails was permitted. The Appellate Division adhered to the 1930 decision when it found that cutting 350 trees over 1” DBH over the course of 2.3 miles, to extend a cross-country ski trail on the Forest Preserve in the Catskill Park, was allowable under Article 14. This level of tree cutting was neither substantial or material.
These two seminal cases had guided state tree cutting policy until the Cuomo administration decided to go in a different direction and the DEC under Commissioners Joe Martens and Basil Seggos embarked upon the greatest amount of tree cutting ever on the public Forest Preserve to build a new type of motorized recreational trail, the Class II snowmobile trails. The state’s decision to cut almost 7,000 large trees over 3” DBH and over 18,000 smaller trees between 1-3” DBH blew past these longstanding historic standards but has now been found to be illegal. Today’s decision in the Protect the Adirondacks case is the now the third seminal legal case about the forever wild clause in the State Constitution.
The forever wild clause in the State was approved by voters in 1894 as part of the new State Constitution. Not a single word has been changed since then. By protecting the public Forest Preserve in the State Constitution, generations of New Yorkers have determined that major changes to the Forest Preserve can only be undertaken through an amendment to the Constitution approved by the voters and cannot be undertaken by legislation or by administrative actions by the Governor or a state agency. The decision to build a network of hundreds of miles of Class II trails in the Forest Preserve should have been undertaken through a constitutional amendment, not unilaterally by state agencies, but the Cuomo administration chose not to ask the voters for their approval, and decided to violate the Constitution instead.
The court ruled today that the Constitution does not provide protections to some trees but not to others. The forever wild clause protects 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 tree cutting does not occur ‘to a substantial extent’ or ‘to a material degree.’ The court reaffirmed the forever wild clause and past legal decisions and precedents when it determined that cutting of about 25,000 trees to build a network of Class II trails was unconstitutional and violated standards that have been in place for decades.
“There are many ways that the state agencies responsible for managing the Adirondack and Catskill Parks provide access for the public to enjoy these special places. Nevertheless, as the Court has confirmed, the avenues that the State provides for accessing the Forest Preserve cannot violate the Constitution’s ‘forever wild’ clause. The public has retained its ability to decide the fate of the Forest Preserve through the constitutional amendment process,” said Claudia Braymer, an attorney for Protect the Adirondacks.
The Impact of the Court Decision on Forest Preserve Management
Today’s decision will not prevent trail crews in the Adirondacks from building or maintaining hiking trails, mountain bike trails, and other trails. The amount of tree cutting needed for narrow foot trails is significantly less than the amount needed for wide Class II snowmobile trails. There simply are not foot trails in the Adirondack Forest Preserve that require cutting 700 to 1,000 trees of 1” DBH or greater per mile during construction or maintenance. A well-designed hiking trail weaves between trees, avoids critical habitats, and follows the contours of the land. Class II trails remove high amounts of trees and require long straight sections where motor vehicles can operate safely at high rates of speed.
The Cuomo administration has made the expansion of motor vehicle use in the Forest Preserve one of its biggest priorities in the Adirondack Park, pushing longstanding policies and laws to the breaking point. Today, we see clearly in the decision by New York’s highest court that the Cuomo administration broke the law. Hopefully, this decision will put the brakes on the Governor and his state agencies. There are a wide variety of public recreational activities that can be facilitated on the Forest Preserve, but they must be managed in a way that complies with the State Constitution and the forever wild clause. It’s time for the Cuomo administration and the DEC and APA to get back on the right side of forever wild.
Protect the Adirondacks looks forward to working with the administration to update DEC and APA’s policies and procedures to ensure that future state activities on the Forest Preserve comply with the Constitution.
Photo: Peter Bauer measures a snowmobile trail near Newcomb. Photo by Mike Lynch/Adirondack Explorer, file photo. This release was provided by Peter Bauer, Protect the Adirondacks. The information, views and opinions expressed by these various authors are not necessarily those of the Adirondack Almanack or its publisher, the Adirondack Explorer.