Tuesday, May 11, 2021

Understanding Timber on Protected Lands  

Abbott: Put that out.  There’s no smoking in here. 

Costello: What makes you think I’m smoking? 

Abbott: You’ve got a cigar in your mouth! 

Costello: I’ve got shoes on…. It doesn’t mean I’m walking.”   – One Night in the Tropics, 1940 

“Things are not always what they seem; the first appearance  deceives many; the intelligence of a few perceives what has  been carefully hidden.” – Phaedrus, 428-348 B.C.

Usually, when I hear someone refer to a “philosophical problem,” it is safe to assume they have stumbled upon  something contested or murky. Anything without clean  borders and an obviously correct side that good people can  agree on is often dismissed as a “philosophical problem.” Also  consigned to this fate are questions that seem simple until you  look closely and discover a thicket of overlap and conflicts.  In my experience this is usually because what appears to be  the question is either not the real question or not the whole  question. I’m going to try to untangle a situation that falls into the latter category, but before you chuck this column onto the philosophical slash heap, stay with me, and let’s talk timber. 

As many readers know, the Adirondack Park is a six-million acre patchwork of public and private land in northern New York  state. The park includes land designated as Forest Preserve, which is constitutionally protected by language dating from  1894. It states in part: 

The 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 meaning of the word timber in that last sentence is currently  the subject of a lively debate concerning especially whether a  tree has to be a certain size in order to be considered timber and  left standing. The debate amounts to whether cutting a small tree (sapling size and up to 3” DBH) on Forest Preserve in order to clear the way for a trail amounts to a constitutional violation.  

Keeping your eye on use of the word timber, consider a 2019 State Supreme Court hearing to determine if the removal of several hundred trees (or several thousand if you count those smaller trees) violates the above clause. In short, we’re trying to resolve whether the trail construction and removal of trees smaller than 3” DBH amounts to the removal or destruction of timber on the Forest Preserve.  

One argument referenced in the court document states that the Preserve was created to: [S]ave the trees for the threefold purpose of promoting the health and pleasure of the  people, protecting the water supply as an aid to commerce and preserving timber for use in the future.  

Still another worries: [T]he moment you put in any provision that anybody can cut timber [in the Forest Preserve], then you destroy the effect of the whole amendment. 

While, the majority decides: [T]he 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. 

And one dissenter argues that the proposed cutting (of itty-bitty trees) is not an unconstitutional destruction of timber.  

There are different ways to think about this overall situation (as court papers, newspaper articles and loads of commentaries can attest). However, I’ve been struggling for days just with the narrow and seemingly simple question of what constitutes timber in the context of the “forever wild” clause cited above. I have decided that what is timber falls squarely into the second category mentioned at the top, and that other interesting questions fuse around it. So, I share the following starting points for this column’s more adventurous readers, and I invite your comments, as always.  

  • Is a tree considered timber from its seedling stage all the way through to its mature merchantable size? Like all origin questions, is something what it is from the beginning? (In philosophy vocabulary: an ontological and a phenomenological question concerning Essence.) 
  • Is it only timber if it is destined for the mill, suitable for building  material and to be sold? In other words, is it the way it is used that determines what it is? (In philosophy vocabulary: an instrumentalist concern.) 
  • Even if it is timber, do you leave it standing because cutting it down diminishes the overall “wild beauty” of the landscape? (An aesthetic question, one of beauty.)
  • If it isn’t likely to survive to maturity, can we cut it if doing so contributes to a trail for generations of recreationists? (A pragmatic question that makes functionality and practicality the primary concern.)
  • Should we interpret the constitution in such a way that puts greater emphasis on the larger vision and cultural benefits of “forever wild” and less emphasis on the tree as timber – and let it stand? (A utilitarian question if the constitution suggests that land preservation is the greater good for the greatest number over time.)
  • Is it only timber if you hear it when it falls in the woods? (Kidding… for anyone still reading.)

Photo: Snowmobile Connector bridge, Seventh Lake trail, Moose River Plains Wild Forest. Almanack file photo

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Marianne Patinelli-Dubay

Marianne Patinelli-Dubay leads the Environmental Philosophy Program at SUNY-ESF’s Newcomb Campus on the Huntington Wildlife Forest. In addition to teaching and writing, Marianne chairs the Adirondack Chapter of the Society of American Foresters and is an active member of the Forest Stewards Guild.   Please send comments to [email protected]




25 Responses

  1. Pete Biesemeyer says:

    Disagreement about the meaning of timber arises from what Alfred North Whitehead called the fallacy of misplaced concreteness. To start from solid ground, the word “timber” is a sound made by moving the vocal cords and mouth and tongue in a certain way. As soon as we depart from there, we are adrift in cross-currents of etymology, common usage, personal opinion, and the jargon of forestry and the legal profession. In the end, all the sophistry employed in the service of competing interests can’t disguise the fact that whoever yells the loudest usually gets their way.

  2. Erin says:

    Walks five feet over to bookshelf…grabs copy of Verplanck Colvin’s report the state….opens to a completely random page…reads “thousands of trees in the saddle between the mountains but no timber”. (for those interested, this is his description of the area between cliff and red field).

    Look, i wasn’t a fan of the snowmobile connector trail, but when you try to say that a new budding tree (“new”, not “small”) which has virtually no hope of surviving more than a few years due to the forest canopy cover is “timber”, you just sound like an idiot. Article 14 was about preventing clear cutting, not preventing reasonable recreation. And while this is currently about snowmobile trails it is only a matter of time before groups like ‘Protect the Adirondacks’ try to apply it to preventing new hiking trails or re-routes. That is the danger here most are concerned about, not the snowmobile trail.

    • william c hill says:

      A great Colvin quote! I agree that this is just the beginning of more ways to stop everything trail-related in the park.

  3. Richard Monroe Richard Monroe says:

    In my opinion, (which in the grand scheme of things matters not), the KEY question that fails to get due consideration on this issue is the concept of original intent. What was the ORIGINAL INTENT of the legislation WHEN IT WAS WRITTEN? THAT is the key question that folks should be looking at in considering this matter. NOT “How do WE choose to define the word “timber” NOW. Define the original intent of the legislation, when written. That is the true question, and provides the true answer. Whether folks currently debating the issue happen to like that answer or not.

  4. George L. says:

    It is called a “Forest Preserve” for a reason. The meaning of each word is clear, and the meaning of the two taken together, “Preserve Forest”, is clear.

    NYS DEC was wrong – and surely knew it all along. It is not the Department of Highways. The lower Courts gave DEC a pass because it is a State agency. The Court of Appeals does not defer to the State.

    What constitutes sedition against our government may be a nuanced legal question, but what constitutes cutting timber in the Forest Preserve is not.

  5. Boreas says:

    Here is my take. The people who developed Art. 14 wanted to rebuild the Park as well as preserve it into the future. It was a wasteland from over-logging, mining, and fires. There was very little timber that COULD be removed. If you are trying to repair a disaster area, you can’t destroy the young stuff. This is why I feel the creators meant trees instead of commercial “timber”. It is illogical to try to rebuild a forest by destroying young trees with abandon. I believe they unintentionally used the wrong word. If you don’t allow the young growth to grow, you will never have a forest to preserve.

    Today, many people see our landscape regrown with large trees and feel the damage from the 19th century has been erased and we are looking at a mature forest that is open for logging and development again. This is not the case. The FP is far from mature. A mature forest doesn’t consist of only trees that are less than 150 years old. Most of these trees are still considered young, and the forest is far from mature. An immense quantity of biomass was removed and needs to be regenerated to become a mature forest biome again. This will take many hundreds of years for the forest to re-establish the soils and biome beneath the surface.

  6. Zephyr says:

    I never understand why “original intent” is always thrown around like one of the Ten Commandments. Whether anyone likes it or not, laws and constitutions have to evolve over time or they become irrelevant. I fail to find any mention of many modern things in the constitution such as the Internet and snowmobiles that can easily go 70 mph or more, which must now be considered with regard to these ancient laws or else we will be in chaos. Same with the NY constitution. Building snowmobile superhighways through the Forest Preserve is obviously destructive of a large swath of wilderness however you define timber. Just look at the arguments in favor of the snowmobile highways. They are all about the economic benefits and the needs of snowmobilers. Nowhere is anyone arguing that building these trails is not destructive of wilderness, because it obviously is destructive.

    • ben says:

      The 7th Mountain Lake trail is a supposed super highway. Go walk it & see if you agree! You won’t! But then again I know you won’t go walking it, because that would show you that YOU ARE WRONG!!!!!!!!!

  7. Richard Monroe Richard Monroe says:

    “Original Intent” is a critical component to ANY law. Without it, laws can then be interpreted to mean whatever we want them to , which means they can mean anything, or nothing at all. Without an adherence to “original intent” laws become meaningless, and we become a society ruled by whim, whimsy and opinion. Of course laws, when written, frequently do not take into consideration or foresee such things as snowmobiles or the internet. And yes- those things over time do merit consideration. Thus, laws may need to be reviewed, changed & updated over the course of time. Or not. That’s what the legislative process is for. And constitutional amendments. By skipping that process and simply reinterpreting laws to meet current whim, our laws, once again, become meaningless, and we become noting more than a society ruled by exigent whim.

    • ADKresident says:

      Well said, Richard. ?

    • Zephyr says:

      Well, if “original intent” is your sole criteria I can guarantee you there was no thought of building highways through the forest preserve for 70mph snowmobiles! Plus, you can’t just choose to read the one sentence including timber, which is subordinate to the sentence that precedes it: “The 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.” In no way shape or form can snowmobile highways be considered part of “wild forest lands.” Particularly from the 19th century perspective of what those words mean. The second sentence is obviously examples of what can’t be done, but not exclusionary as to other rules that will keep the land “forever wild.” This is the problem with originalists. They only interpret literally the portions of laws and the constitution they like, and then ignore the rest. Prime example: the Second Amendment.

  8. John Marona says:

    “What’s in a tree?
    Currently, the DEC is defining “timber” as any tree 3 inches in diameter and 4.5 feet tall. Protect the Adirondacks says that smaller trees are also counted under the state constitution.”
    The above has been reported in several articles in reference to the court case in question. Seems Protect wants to change the states definition here. The bigger question, and one that perplexes me, is why are we allowing snowmobile trails on the state forest preserve in the first place? Seems Protect the Adirondacks can’t see the forest for the trees, or timber as the case may be.

  9. Charlie Stehlin says:

    william c hill says :”I agree that this is just the beginning of more ways to stop everything trail-related in the park.”

    No, this is about stopping illegal snowmobile trails to be carved in the Adirondack woods! This decision was as clear as day. Allowing them corridors would have been the seed for more ways to carve wide swaths in them woods for who knows what noisy contraption next!

  10. Charlie Stehlin says:

    Zephyr says: “Building snowmobile superhighways through the Forest Preserve is obviously destructive of a large swath of wilderness however you define timber.”

    Tis so true, but we twist things to suit our needs. A botanist looks at a tree and sees a living thing; a snowmobiler looks at a tree and sees a hindrance; a lumberman looks at a tree and sees board feet. The DEC looks at a tree, lifts his arm into the air with his finger reaching to see which way the wind is blowing, or what is the flavor of the day, and acts in accordance to that, versus what they were hired to do….to conserve, protect! How sad! Especially knowing the history in New York State regards conservation. Nothing is sacred anymore!

  11. Charlie Stehlin says:

    ” the DEC is defining “timber” as any tree 3 inches in diameter and 4.5 feet tall.”

    > Embryo – an unborn or unhatched offspring in the process of development, in particular a human offspring during the period from approximately the second to the eighth week after fertilization. With this definition it’s a good thing the DEC doesn’t branch out to humanities! The anti abortion crowd would put them right out of business…even though the separation of church and state disallows such.

    An unborn or unhatched offspring in the process of development, in particular a human offspring during the period from approximately the second to the eighth week after fertilization

  12. David Gibson says:

    I’d simply like to thank Marianne for the always instructive Abbott and Costello exchange – and ending her post with a question ! Thank you, Marianne.

  13. adkDreamer says:

    The law. Article 14. Original Intent and meaning. If the Forest Preserve and the so called laws ascribed to it were fixed, then there would be: no Mt. Van Hoevenberg Olympic Bobsled Run, no Ski Jumps, no Whiteface Ski mountain, etc.

    The ‘law’ has not, is not, will never be absolute. Remember: In a court proceeding such as the appellate courts, two sets of lawyers preset their ‘narrative’ and evidence for the appellants and the respondents, respectively and both sides intend and endeavor to prevail. No lawyer worth his salt would ever claim victory before judgement is handed down.

    Often repeated murky Rothschild quote: “Let us control the money of a country, and we care not who makes its laws.”

    • John says:

      Huh, it is interesting how quickly one can shift from trees to antisemitism. No Rothschild ever said such a thing and to perpetuate the brand of hatred found in the “Protocols of the Elders” is beneath the Almanack.

      • adkDreamer says:

        As I stated, ‘murky’ as in anecdotal. The quote is often attributed to Rothschild. The point should be painfully clear: Money is power and power trumps law.

        As far as the remainder of you comment, well, I suppose any words can be twisted into a trigger for the sole purpose of a virtue signaling opportunity and as far as I am aware you are not this websites moderator, thus your obvious weak attempt to correct my post is misguided and unfounded.

  14. Keith G. Tidball says:

    Appreciate the thought provoking post. Musing more about “timber”, it seems the word’s old English roots have to do with a house, building, or ship. “Timber” specifically referenced trees that are grown in order to produce “wood”. Timber as a concept, similar to “crops” , belies a silvicultural (which is almost indistinguishable from agricultural) perspective of the lawmakers of the time, who’s primary worry was what industrial activities had done to the Forest. So, in my mind, the prohibitions on cutting timber are to prevent the wholesale industrial scale logging of timber to produce wood for the consumer market.

    Thanks for the article, Marianne!

  15. George L says:

    The State could have named it the Timber Preserve, or the Timber Reserve.

    It was named the Forest Preserve. Presumably, the word forest explains itself.

    Also see the excellent May 11 comment above by Boreas on how long it takes for a mature forest to grow.

    As I said before, DEC knew better.

  16. Wayno says:

    It seems pretty obvious that the people who wrote the Constitutional Ammendment were trying to distinguish between mature trees and all other vegetation. It would have been easy to write something like “… nor shall the VEGETATION thereon be sold, removed or destroyed.” but they did not. This is not just a park, it is a place where people live and need to work. Many types of industry are non compliant but tourism is encouraged, how many people will go to this area in the winter without these snowmobile trails? IMO, This is the type of lawsuit/ruling, divisive and narrow focused, that accomplishes little but hurts the environmental movement in trying to broaden its appeal.

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