Forest Preserve stakeholders meet with DEC staff to discuss management alternatives, Essex Chain Lakes, 2012. Photo by Dave Gibson
The NYS Court of Appeals ruled on May 4 of this year in favor of plaintiff Protect the Adirondacks and against the State of New York, deciding that Snowmobile Community Connector trails as planned, permitted, and constructed by the Department of Environmental Conservation during the first term of Governor Andrew Cuomo violated the “forever wild” clause, Section 1 of Article 14, NYS Constitution.
It took the DEC until June 30 to formally respond to the Court’s ruling, and that formal response came in the form of an internal DEC memorandum issued by DEC Commissioner Basil Seggos and handed out at a recent meeting of the DEC’s Forest Preserve Advisory Committee on which I serve as a representative of Adirondack Wild: Friends of the Forest Preserve.
In his first paragraph, Commissioner Seggos wrote that:
“Effective June 30, 2021, the Management Guidance: Snowmobile Trail Siting, Construction and Maintenance on Forest Preserve Lands in the Adirondack Park, 11-2009 (2009 Guidance) is hereby rescinded. Further, because this guidance is included as Appendix E to the Memorandum of Understanding between the Adirondack Park Agency and the Department…concerning the implementation of the State Land Master Plan (APA/DEC MOU) …I am directing staff to work with the Adirondack Park Agency to revise the MOU as it pertains to the management of snowmobile trails within the Adirondack Park.”
In his second and final paragraph, the Commissioner wrote:
“In the interim, Office of Natural Resource Policy # 2 (Snowmobile Trails – Forest Preserve) is reinstated for the Adirondack Park. While the 2009 Guidance superseded ONR-2 for the Adirondack Forest Preserve, ONR-2 remained the governing policy for the Catskills and will continue to be used in the Catskill Park. Staff should rely on this policy for the management and construction of snowmobile trails in the Forest Preserve.”
That’s it. Not a single sentence in the memo commits DEC management to respect and follow the Court of Appeals ruling, and for what reasons, and with what implications for management policy. It was left to the DEC Division of Lands and Forests and legal staff to verbally state to the committee that DEC fully understands, respects and will follow the Court’s ruling, and to provide us with as much detail as DEC staff could provide without more approvals from above.
Several concerns and questions arise about the Commissioner’s reinstatement of the old ONR-2 policy today. For starters, the “in the interim” period is unspecified. No timeline has been announced for revising the DEC-APA memo of understanding about managing snowmobile trails. If a working group has been assigned to revise the DEC-APA agreement, it was not announced. It appears to be a waiting game of which agency- DEC or APA- will make the first move.
Second, ONR Policy # 2 – the reinstated interim policy now governing planning, location, construction of snowmobile trails on the Forest Preserve for an unspecified length of time – dates all the way back to September 1998 following another period in Adirondack history when the DEC completely lost control of what was happening in the name of “ordinary maintenance” of snowmobile trails.
From 1996 to 1998, during the first term of Governor George Pataki, DEC countenanced and participated in substantial alteration of the Forest Preserve’s Wild Forest trails to accommodate two-way snowmobile passage and use of snow grooming machines. Forest Preserve watchdogs (I was one) went out to document and report the extensive and illegal widening and damage done to these trails.
The damaging work took place under a DEC temporary revocable permit (TRP) but without a unit management plan and in violation of the State Land Master Plan definition of a snowmobile trail. Some trails were widened by heavy equipment from 8 to 20 feet or even more, some in extremely wet places. My boots completely disappeared in the mud created in some of these trails, such as the east-west trail just below the slopes of Vanderwhacker Mountain (Wild Forest). Here and in other places, the trail damage in designated wetlands caused APA to issue a cease and desist and resulted in an interagency agreement to remediate the damage. More trail widening to 15-20 feet was well documented and reported on trails in the Fulton Chain of Lakes Wild Forest, Shaker Mountain Wild Forest, and Watson’s East Triangle Wild Forest, among others. It was widespread.
Watchdog organizations including mine had seen enough. In 1998-99 we collectively petitioned the state courts to be allowed to sue DEC on grounds of violating Article 14, NYS Constitution. As that legal process was moving ahead, DEC Commissioner John Cahill called meetings with us to discuss. He wanted to resolve matters out of court. He committed to reform the process by which TRPs were issued and to whom they were issued.
Cahills’s DEC also rolled out ONR-2 policy for snowmobile trail construction, operation and maintenance which extensively quoted the State Land Master Plan, formally committed DEC to an upper limit of snowmobile trail mileage on Forest Preserve, states that “existing snowmobile trails shall not be widened or otherwise upgraded without benefit of an approved unit management plan,” and prioritized use of existing woods roads and trails as opposed to cutting new trails. We all felt that, coupled with other commitments to reform the issuance of TRPs, this new policy should be given time to work – and so collectively agreed to drop our lawsuit. In hindsight, I wish that watchdogs had battled this out in the courts at that time, not 15 years later when the patterns of DEC/APA permits, and permissions were well established.
Governor Pataki and DEC’s Cahill went on to form the Snowmobile Focus Group in 2001. That group of stakeholders met for 3 years in an attempt to agree on community connector trails, net benefit to the Forest Preserve and other aspects of a comprehensive snowmobile plan for the Adirondack Park. The process was ended for political reasons before it could succeed. More field work was needed, but DEC’s time for stakeholder discussion had run out. Hearings were held. DEC unveiled the final Plan a month before the 2006 election, Pataki’s final months in office, and nobody was pleased. The plan compromised the State Land Master Plan. The implementation of this Plan was scrupulously avoided by the next Governor Eliot Spitzer and his DEC Commissioner Pete Grannis. It was left to Governor Andrew Cuomo’s DEC and APA to implement the Plan and the Guidance document of 2009. And those actions led to the 2013 Protect lawsuit, culminating in the COA 2021 decision.
All these years later, DEC’s Commissioner has now reinstated ONR-2 as “interim” policy for snowmobile trails. It differentiates between Class A snowmobile trails and Class B trails, which I’ve always found a rather difficult distinction. It guides alignment of trails to avoid blind curves, etc. It contains many “weasel words” difficult to interpret in the field, statements like this: “Line and grade shall be designed so as to insure that the average snowmobile operator can safely negotiate the trail with little or no difficulty and experience a ride that is interesting and safe.”
It keeps Class A trails to 8 feet cleared width, allowing them to go to 12 ft. on steep grades and sharp curves where tree cutting is not necessary. This policy guidance has always been in the eye of the beholder.
Class B trails are all 8 ft. maximum regardless of topography. Essentially, these trail width specs were an early attempt to put DEC in compliance with the master plan definition that snowmobile trails must have the essential character of a foot trail (and duplicate as foot trails in growing season). DEC internal guidance stipulates foot trails are 8 feet, so DEC adopted same as its snowmobile trail guidance – back in 1980.
ONR-2 also acknowledges that trail grooming with a Sno-cat groomer takes place, not by DEC, but by “user groups” under a TRP. The policy is silent about the stubborn legal problem that the only motor vehicle permitted on snowmobile trails are snowmobiles. Sno-cat groomers are a separate motor vehicle and not authorized on Wild Forest trails. Also, the varying horsepower and dimension of the trail grooming machine in many instances led to the increase in width of the trails which, in part, convinced the Court of Appeals that the trail alteration was unconstitutional.
ONR-2 does not expressly permit alteration of the forest floor for removing rocks, bench cutting of trails, etc. These trail altering activities were among those used after 2011 that led to the 2021 Court of Appeals ruling. This is the “good news” in that if ONR-2 remains in effect for some time, there should be zero DEC tolerance for use of “landscaping equipment,” such as use of tracked excavators to grade or rock pluck trails on the Forest Preserve.
With DEC now reinstating ONR-2 policy, another problem lies in the fact that the Court of Appeals accepted the inclusion of a tree at 1 inch or larger, while the old policy, now reinstated, defines trees at 3 inches or larger. That appears inconsistent with promises that DEC will respect and follow the Court’s ruling. This inconsistency must be resolved.
Other than to tersely rescind the 2009 Guidance and reinstate a 23-year-old policy, what alternative courses of action could the Commissioner take?
To name some, he could have:
- Accepted the Appellate Division ruling that went against DEC in 2019 by a 4-1 majority, not appealed to our Court of Appeals, and spent the last several years meeting with stakeholders to reach a constitutional and APSLMP compliant path forward for trail building and maintenance.
- Conceded the Court loss and committed DEC to following the Court of Appeals in all respects, and then announced the formation of a stakeholder or focus group of users and advocates to help DEC come up with new trail policy and guidelines consistent with the Court ruling.
- Instead of jettisoning the most recent – 2009 – snowmobile Guidance Document, he could have formed a focus group to immediately advise DEC and APA on how best to revise that more recent document in compliance with the Court – instead of reverting to ONR-2, a 23-year-old policy with the aforementioned history and problems. A revised 2009 policy could apply to all recreational trail work, not just snowmobile trail work.
- He could have announced the top 3 priority recreational trails connecting the Adirondack and Catskill Forest Preserve with neighboring villages and hamlets – be they for snowmobiling or hiking or skiing or bicycling – in need of the most immediate work and led a field trip with Adirondack and Catskill stakeholders to discuss on site how that work might best be conducted in compliance with the Court.
Such actions involving concession of a loss in state court, followed by open-ended conversation that might result in consensus are still viable options. However, they probably would not gain traction under Governor Andrew Cuomo. The Governor remains an always in control, aggressive, transactional executive. Opening a new stakeholder process would mean giving some leeway, trust, and freedom of movement to his commissioners, the heads of his departments. That would mean giving up some of his direct control.
And so, his DEC Commissioner issues a two-paragraph memorandum that results in more uncertainty and raises more questions than answers both within state government and among user groups and all private stakeholders. Despite the Commissioner’s June 30 memo, ONR-2 is hardly a document that today’s DEC field staff can or should “rely on.”
From the Pataki years through the Andrew Cuomo terms our DEC and APA have frequently facilitated all manner of recreational activity and related technology to the detriment of wild character and natural resource considerations – which their laws and Article XIV say must be the paramount concerns. After over 20 years of such pattern and practice and abuses on snowmobile connectors, the 2021 Court of Appeals – a very blunt instrument – said “enough.” Now is the time for the DEC Commissioner to gain the needed freedom of movement to reopen the public conversation about how to manage recreational trail development in line with Article XIV.
After all these years why is New York still blessed with a Forest Preserve? It’s pretty basic, said the Court. The 2021 Court majority wrote: “The constitution provides for access and enjoyment of the Forest Preserve as a wild forest,” therefore the Forest Preserve cannot be treated in the same manner as some other, less wild, more highly developed part of our public land system such as our state parks (NYS OPRHP) and state forests. This interpretation is entirely consistent with the Court’s conclusion in 1930 on the famous Lake Placid bobsled case and with policy conclusions reached by the Joint Legislative Committee on Natural Resources in 1963: “the Forest Preserve is but one part of New York’s publicly owned outdoor recreation system,” wrote the committee’s chair State Senator Watson Pomeroy. “Only adherence to the ‘forever wild’ principle has given the Forest Preserve its distinctive value as a part of that system.” From 1895 to 1930 to 1963 to 2021, New Yorkers have a distinctive, unique, forever wild Forest Preserve that no other state or nation possesses, if we can keep it.