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