Friday, July 16, 2021

DEC And APA Have A Big Task To Get Back On The Right Side Of Forever Wild

tree cutting lawsuit

The May 4, 2021, decision by the New York Court of Appeals ruled that Class II Community Connector Snowmobile Trails violated Article 14, Section 1, of the New York Constitution. This ruling capped an 8-year legal challenge by Protect the Adirondacks against the Department of Environmental Conservation (DEC) and Adirondack Park Agency (APA). In the end, eight of the twelve judges who looked at the evidence found that Class II trails were unconstitutional.

For two decades, Protect the Adirondacks, its predecessor organizations, and many others, took the position that Class II trails, or anything like them, violated Article 14, Section 1, the forever wild clause of the State Constitution. Few at these state agencies heeded our concerns.

In the wake of this historic decision, Protect the Adirondacks stands ready to work with the DEC and APA to regain their lawful footing as they comply with Article 14 and rebuild their Forest Preserve management programs.

Protect the Adirondacks believes that both agencies have a lot of work to do. This work involves the active restoration of the Forest Preserve lands that were damaged by construction of Class II trails, revising the policies that authorized construction practices for Class II trails, changing the management plans that authorized many miles of new Class II trails, and amending the major policies that either were circumvented by state agencies or allowed them to approve a Class II trail network of several hundred miles in the Adirondack Forest Preserve.

The list below details some of the work that DEC and APA must undertake to get back on the right side of forever wild.

Restoration of Damaged Areas: Large stretches of Forest Preserve lands were damaged by the building of more than 20 miles of Class II trails, some of which will never lead anywhere. Many acres of Forest Preserve were damaged during the construction of Class II trails, and these lands must be repaired and reforested. Piles of lumber were stockpiled in these areas, over-sized bridges were built, culverts were put in, bench cuts were cut into miles of hillsides, street-sign-like signs were installed, stumps and boulders were removed, grass was planted in the forest, intact forests were fragmented, and thousands of trees were destroyed. All of this damage must be cleaned up, the damage must be repaired, and the ecology of the forest must be restored to its preexisting condition to the greatest extent possible.

Interim Guidance for Foot Trail Construction and Maintenance: DEC and APA have no existing policy or guidance document for foot trail construction and maintenance. The testimony of DEC staff during the trial revealed that, at most, trail classification is an ad hoc affair, which can vary from Unit Management Plan (UMP) to UMP. To compound matters, ever since the Appellate Division ruled that the Class II trails were unconstitutional, DEC and some conservation organizations have claimed that the decision would make it impossible to build or maintain foot trails on the Forest Preserve. Nothing could be further from the truth, and the Court of Appeals decision made that clear. The Court of Appeals decision recognized that foot trails are different from Class II trails and that foot trails are absolutely permissible on the Forest Preserve.

In many ways, the new Protect decision can be read as a historic affirmation for foot trail construction and maintenance on the Forest Preserve. Despite this, DEC has not issued any guidance on the implementation of the Court’s decision, leaving trail maintenance crews in limbo. DEC must clear the air as soon as possible so that crucial foot trail work can continue, in conformity with Article 14.

Revision of DEC Tree Cutting Policy: The trial and all three resulting court decisions settled the meaning of the word “timber” in Article 14 and the legal status of small-diameter trees on the public Forest Preserve. Timber means all trees, not just large trees said to have merchantable value, and so Article 14, Section 1, protects all trees on the Forest Preserve. The court record is clear that the first 27 to 34 miles of Class II trails destroyed over 25,000 trees 1” DBH and greater.

The trial revealed that the DEC policy on tree cutting on the Forest Preserve (LF-91-2) was not based on science. The court decisions show that this policy needs to be revised. The courts were clear that trees of 1” DBH or greater must be both counted and protected during state management activities on the Forest Preserve. LF-91-2 needs to be revised and brought into alignment with the decisions by the courts. In addition to covering all trees 1” DBH and above, it must assign clear responsibility for a determination as to whether each proposed tree cutting action on the Forest Preserve complies with the Constitution.

As showed in the vast court record used in this decision, Class II trails required cutting of upwards of 1,000 trees 1” DBH or greater per mile to clear trails that were 9-12 feet wide or wider when bench cuts were used. Class II trails saw the clearing of one acre of forest per mile of trail. The Protect decision upheld hiking trails as a legitimate, lawful use of the Forest Preserve. There are simply no sustainable hiking trails that during planning and construction required the cutting of a thousand trees 1” DBH or larger per mile or required the clearing of one acre of forest for each mile of trail.

Revision of Snowmobile Trail Construction and Maintenance Guidance: The Snowmobile Trail Management Guidance was framed in 2009 as the means to control Class II trail construction actions in the field and protect the Forest Preserve. Unfortunately, the first 20 miles of Class II trails constructed showed that the Guidance did not do its job.

The Guidance states “When undertaking any of the types of work described below with motorized landscaping equipment (almost exclusively on Class II Trails), only careful use of appropriate low-impact landscaping equipment will be approved, as determined by a ‘minimum requirement’ decision.” Unfortunately, “low impact landscaping equipment” grew to include the use of a 6-ton excavator to smooth and grade the trail tread. The “minimum requirement” grew into the practice of using these machines to grade the trail surface from one end of the trail to the other.

The Guidance says that “Limited leveling and grading may be undertaken,” yet Class II trails were graded with heavy machinery from end to end. The Guidance also stated that “the need for bench cuts will be minimized,” but the actual trail work saw a nearly continuous use of bench cuts that ran for hundreds of yards at a time, section after section, on Class II trails, where the cleared areas regularly reached 15 to 20 feet in width. The Guidance failed to prevent damage to and degradation of the Forest Preserve.

Revision of Wild Forest Unit Management Plans: There are numerous UMPs for Wild Forest Areas that authorize the construction of Class II trails. These UMPs need to be revised to delete the trails that are no longer viable.

Revision of 2006 Adirondack Park Snowmobile Plan: The 2006 Snowmobile Plan for the Adirondack Park, produced by the DEC and the Office of Parks, Recreation, and Historic Preservation (OPRHP), is no longer relevant. While the goal of building community connector snowmobile trails may still exist, the use of the Forest Preserve to make connections requiring long stretches of wide new trails is no longer a viable option. The DEC and OPRHP need to revoke the approval of the current plan, and revise it, if such a plan is to continue to exist.

Revision of the Adirondack Park State Land Master Plan: The Adirondack Park State Land Master Plan (APSLMP) defines a snowmobile trail as “a marked trail of essentially the same character as a foot trail” and mandates that it be “compatible with the wild forest character of an area.” Though Protect the Adirondacks, and others, pointed out to the DEC and APA for years that Class II trails were nothing like foot trails, both agencies persisted with that fallacy.

The courts fully recognized these differences. The State Supreme Court decision stated, “It is clear to the Court from the evidence presented that the trails at issue herein do not share the identical essential characteristics of foot trails or forest roads, but rather fall somewhere between the two.”

The Court of Appeals wrote: “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.”

The impartial review by the trial court and appellate courts in this case found what DEC and APA chose not to see — a clear distinction between Class II trails and foot trails. For over two decades, DEC and APA pretended that Class II trails were the same thing as a foot trail.

To prevent such misreads in the future, the APSLMP should be revised to integrate an analysis of consistency with Article 14 into the approval process for UMPs and other planning documents for the Forest Preserve. The APSLMP must also be revised to better define snowmobile trails, so as to make the definition more enforceable.

Protect the Adirondacks urges DEC and APA to embrace reform of their Forest Preserve management and to undertake these reforms in an honest, transparent process, with their doors open to everybody.

Photo: Peter Bauer measures a snowmobile trail near Newcomb. Almanack file photo

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Peter Bauer

Peter Bauer is the Executive Director of Protect the Adirondacks.

He has been working in various capacities on Adirondack Park environmental issues since the mid-1980s, including stints as the Executive Director of the Residents' Committee to Protect the Adirondacks and FUND for Lake George as well as on the staff of the Commission on the Adirondacks in the Twenty-First Century. He also worked at Adirondack Life Magazine. He served as Chair of the Town of Lake George Zoning Board of Appeals and has served on numerous advisory boards for management of the Adirondack Park and Forest Preserve.

Peter lives in Blue Mountain Lake with his wife and two children, enjoys a wide variety of outdoor recreational activities throughout the Adirondacks, and is a member of the Blue Mountain Lake volunteer fire department.

Follow Protect the Adirondacks on Facebook and Twitter.




41 Responses

  1. Jim S. says:

    I would like to know if the plan to put a huge bridge over the Cedar river has been abandoned.

    • Steve B. says:

      Define huge ?. In my mind the Mario Cuomo bridge is huge. A single lane foot and snowmobile bridge over the Cedar maybe not so huge. BUT, illegal just the same, even though as an avid cyclist I would love to see it built to allow access to the Essex Chain area from the south.

  2. Paul says:

    I would assume that the state will try and get an amendment to the constitution. Right? This whole process just made it cost the taxpayers considerable more money.
    As I understand it, Article 14 originally contemplated allowing snowmobiles on the forest preserve lands, this has been discussed here extensively. It only seems logical that an amendment is justified to make trails that are safer for the more modern sleds, and maybe even the environment (you mention culverts which are a good thing for proper stream flows etc.). Times change these people are not riding the same machines they were in 1973. There is a cap for SM trail milage so it’s a finite thing.

  3. Pat Smith says:

    Hey Peter, check out the You Tube video “The Planet is Fine…” by George Carlin. An oldie but some interesting similarities to current issues.

  4. nathan says:

    10×10 area has 1,000 saplings, they are not timber, 999 will die and one might grow. gets a bit rediculous and tedious. yet they allow 2 stroke outboard motors all over the lakes. huge outboards racing all over destroying any peace or tranquility. they get so crazy over a 1 inch tree, but oily water is ok, plumes of smoke from boats, boats racing on lakes 40-70 mph is ok…they need to preserve the water and ban 2 strokes, limit boats to 10hp, and let nature breath with a lot less noise pollution. then work on banning 2 stroke snowmobiles in park. some lakes are impossible to canoe with idiots blasting all over with speed boats and no regard to maintaining safe distances.50 mph and 50 feet away is too common on lake george, long lake , tupper lake, saranac, ect. get ragers off the lakes and drunks.

    • Ole Evinrude says:

      You’re right about the boat traffic being onerous at times. And also right about the OLD 2 strokes. But the NEW E-TEC engines are cleaner than the 4 strokes emitting 90% less CO, while using 30% less fuel! It’s too bad the current owner of those patents (Bombardier) had no idea how to market them.

    • Steve H says:

      That is because progressive liberals, who feel they know more than anyone else, only look at what benefits their cause no matter how ridiculous. Look at everything issue, the political extremes at both ends only see what they want; the difference is that the media serves progressive Kool Ade.

  5. Ruth Olbert says:

    “Intact forests were fragmented”.
    That’s a little dramatic.

    • Michael Tanchin says:

      Does the APA not recognize, the importance of fire breaks? They want to be just like California and not think about how much tinder the has has accumulated.

      Right! There’s research on that subject, claiming our current issue is intact forests have become too large in regards to fire suppression, and healthy fires. When Ansel Adam’s and his team documented the country a hundred years ago, many large format photos were taken of the landscape. A hundred years ago forests were more fragmented by a long shot. This offered a greater diversity in habitat from all stages of maturity, differing soil PHs, etc… now these same landscapes turned into complete intact forests that regularly see large wild fires

      • Boreas says:

        Too narrow for an effective firebreak. Huge wildfires in this type of forest are pretty rare, because the forests are so cool and wet. Climate change has predicted even wetter conditions in the future. When fires were a problem in the NE, it was from logging (which dries a forest from increased evaporation) and logging debris left behind as tinder.

  6. Naj Wikoff says:

    Peter Thank you for your constructive suggestions for addressing the ongoing ad hoc approach to trail design which, in the case of snowmobile corridors, enables people to zoom through state forests at ever faster speeds. I agree that forest restoration should be a priority.

  7. Tom Philo says:

    Excellent column!

  8. Tim-Brunswick says:

    All of this is just so much baloney…there is no need to expend any more money to “restore” the damage done by the construction of trails that have been now declared null & void by the Courts. Why would that be a priority or even necessary when all the logging roads in the now declared “Wilderness” areas of the Boreas Ponds acquisition will be allowed to naturally revert at $00.00 back and as that process is occurring actually create more patches of young forest, which benefits wildlife far more than a strict wilderness habitat.

    For crying out loud NYSDEC is and has been for at least the past five years literally and constructively “creating” wildlife habitat in our States with “clear cutting” of areas throughout our Wildlife Management Forests. Wildlife and many plants actually “NEED” open areas and sunshine, etc to thrive. The name of the program is the “Young Forest Initiative” and guess what it works……….!

  9. Chris says:

    Damaged? So they paved the trails? Nature will reclaim what it needs without our interference. Consider it a win and move on. Btw, I would love to walk down that trail.

  10. Hope says:

    Looks like a great Sustainable trail to me. Wide enough for a couple to walk side by each. Less likely to cause an eroded, rut gouged, muddy mess. Easier to maintain over time.
    If left alone, Mother Nature will reclaim on her own in short order.

    • Todd Eastman says:

      Many of the trails in the HPW were originally logging roads built to about the same specs as the trail pictured in the article…

      … most of those trails still in use are essentially creek beds.

      Good luck on the maintenance concept…?

      • Boreas says:

        And good luck keeping ATVs off of them.

      • Hope says:

        Actually the snowmobile trails are maintained by the snowmobile community. They take pretty good care of them. They also do not allow ATV on the ones that aren’t permitted for ATV use. They don’t like mud holes either.
        Clarification- if the trail is abandoned, Mother Nature will recoup her territory. Same goes for hiking trails.
        These wider trails are not typically located on steep mountainous terrain and not in Wilderness designated areas. There are many newer logging roads, that have abandoned, that never become trails that are virtually impassable now. They make pretty good ski trails in the winter.

        • Ryan Finnigan says:

          Are you trying to imply that snowmobile clubs dont use ATV’s in the off-seasons to “maintain” their snowmobile trails?

  11. Michael Tanchin says:

    Does the APA not recognize, the importance of fire breaks? They want to be just like California and not think about how much tinder the has has accumulated.

  12. Michael Tanchin says:

    Seriously tho, this trail will benefit wildlife. As an outdoor sportsman, things like this excite us. Why? Cause animals love and will use this cut trail more than humans, to move effortlessly thru the forest, and as a source of phytonutrient rich foodstuffs. With larger herdpaths like this, you’ll see more concentrations of turkey and deer. Turkey has been on a national decline and the environments equilibrium for deer is 0-14/sm, which is some of the lowest in the country.

    • Boreas says:

      It will indeed benefit SOME wildlife – especially game species and hunters. But not all wildlife is game. To some wildlife, a 12 foot break in the forest is impassable. Turkey and deer certainly are not in decline in my neighborhood. My inclination is to leave the Forest Preserve alone and manage other state and private forests for game as needed. Then you can have all the access hunters desire.

  13. Ryan Finnigan says:

    Anyone care to guess how long until ATVs hit the trail and ensure that it will never naturally revert back to forest?

    • Boreas says:

      Perhaps they should use the trail to dump piles of RR ties (from the rail-trail project) to discourage ATV use… Absurd sarcasm intentional.

  14. Nanny says:

    NO! Answer.

  15. T Anderson says:

    Great new trail these will creat new growth for wildlife along the edge, mature forest provides limited wildlife benefit. Wildlife will use these trails for their benefit, unfortunately Mr Bauer fails to recognize the benefit these trails and more like them would bring both to wildlife and the Adirondack communities.
    The state should cut and develop more of these.
    Let’s not forget the additional revenue for these small Adirondack towns.

  16. Charlie Stehlin says:

    T Anderson says: “unfortunately Mr Bauer fails to recognize the benefit these trails and more like them would bring both to wildlife and the Adirondack communities. The state should cut and develop more of these. Let’s not forget the additional revenue for these small Adirondack towns.”

    ‘cut and develop more’ ‘additional revenue’

    > Some of us have this kinda thinking down to a science, yet hardly do they believe in such…..science that is.

  17. Charlie Stehlin says:

    “Protect the Adirondacks stands ready to work with the DEC and APA to regain their lawful footing ”

    There’s the spirit! Work together to solve problems. A start!

  18. Charlie Stehlin says:

    “Many acres of Forest Preserve were damaged during the construction of Class II trails. Piles of lumber were stockpiled in these areas, over-sized bridges were built, culverts were put in, bench cuts were cut into miles of hillsides, street-sign-like signs were installed, stumps and boulders were removed, grass was planted in the forest, intact forests were fragmented, and thousands of trees were destroyed….”

    Geez! So much for forever wild! How’d they get away with this for so long?

  19. Ben says:

    If I was the DEC/APA I wouldn’t do anything to fix what I had already started. I would work to amend the State Constitution, would not amend or update any UMP that does not need to be updated and finally all those old logging roads, the DEC/APA were working to get snowmobiles off of by building these connector trails – I would OPEN them up to snowmobiles!
    Lastly, DEC/APA should not authorize any hiking trail work or creation of new hiking trails!

  20. Michael Tanchin says:

    Exactly. I don’t know if any of the nay sayers have been to the highpeaks. The pyre destruction should put and outright ban on hiking cause “forever wild.”

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