In 2021, the state’s highest court ruled some snowmobile trails planned for Adirondack Park forest preserve violated the state constitution. While there were several facets to the decision, one of its cruxes was around the abstract question of what is a tree. Protect the Adirondacks, the group to bring the lawsuit, argued the state Department of Environmental Conservation’s definition of a tree was too small. The DEC was using 3 inches in diameter at breast height in its counts. Protect wanted the state to count trees 1 inch in diameter at breast height.
Last week, the DEC released a new forest preserve work plan policy that includes accounting for smaller trees. This policy will shape all projects on forest preserve—in the Adirondacks and Catskills—going forward. Read more on the policy here.
Just after Labor Day, the Department of Environmental Conservation (DEC) finalized and released a new Forest Preserve Work Plan policy and template. This new policy, Commissioner’s Policy 78, or “CP-78,” is the first significant change in Forest Preserve management resulting from Protect the Adirondacks’ legal victory in 2021. This lawsuit upheld and defended Article 14, Section 1, in the State constitution, the Forever Wild clause, which governs management of the Forest Preserve.
It’s been nearly two years since the New York Court of Appeals, the State’s highest court, ruled that extra-wide Class II Community Connector Snowmobile Trails designed, approved, and constructed by the Department of Environmental Conservation (DEC) and the Adirondack Park Agency (APA) violate Article 14, Section 1, of the New York State Constitution, the famed the “Forever Wild” clause. The high court’s decision followed a decision in 2019 by the Appellate Division, Third Department, that Class II trails violate Article 14. The Court of Appeals decision came out in May 2021 and we’re now into our second winter where the DEC and APA continue to operate unconstitutional Class II trails as if the courts have not ruled against them.
Protect the Adirondacks is now back in court in an effort to get the state to comply with the appellate court decisions.
Recent pieces in the Adirondack Explorer (see here and here) have attempted to assess the implications of the decision by New York State’s highest court in Protect the Adirondacks v Department of Environmental Conservation and Adirondack Park Agency. The Court of Appeals found that these state agencies violated the state Constitution in their efforts to build a network of new extra-wide snowmobile trails in the Adirondack Forest Preserve. These commenters have derided the decision because they say it’s focused on tree cutting, which they argue is a poor standard to evaluate the constitutionality of management actions by state agencies under Article 14, Section 1, the Forever Wild Clause.
In an op-ed run in the Albany Times Union on August 1, 2021 and in the Adirondack Almanack, Town of Indian Lake Supervisor Brian Wells got many things wrong about the recent historic forever wild court decision. He makes serious accusations, yet he twists, bends, and distorts reality to fit his narrative. The one thing that he got right was that “Class II Community Connector Snowmobile Trails” were struck down by New York’s highest court because they violated Article 14, Section 1, of the State Constitution, the forever wild clause.
Here are a dozen ways that Brian Wells plays fast and loose with the truth.
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:
This is a story that should have had a happy ending.
A story of five Adirondack towns working with state government and environmental non-profits on an agreement to expand the taxpayer-owned Forest Preserve, improve public recreation and bring new economic growth to the area.
The Community Connector Trails agreement would have helped turn the page on decades of Adirondack Region job losses brought on by industry disinvestment and Forest Preserve expansion, and established a model for the type of common-sense, compromise solutions needed for many problems confronting the Adirondack Park.
Instead, it’s a sad story of misplaced trust and lost opportunity, ending with the towns and the people who live there getting left out in the cold.
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.
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.
The NYS Court of Appeals has just decided by a 4-2 majority, that New York State agencies under Governor Andrew Cuomo have violated Article 14, Section 1 of our State Constitution by impermissibly constructing snowmobile community connector trails through the ‘forever wild’ Forest Preserve, removing rocks, grading the trails, bench cutting the trails, and cutting thousands of trees.
Bitter comments about the court’s decision notwithstanding, snowmobiling continued in the Adirondack region during the years while this case was being appealed by state agencies up to New York’s highest court, and will again.
The Department of Environmental Conservation – henceforth referred to as DEC – has been developing plans for major community connector snowmobile trails between Adirondack communities for a number of years. Protect the Adirondacks first sued the DEC in 2013, contending the trials cause significant environmental damage and violate the Constitutional clause for the ‘forever wild’.
Peter Bauer, executive director of Protect the Adirondacks, the environmental organization that sued to block the construction said the litigation is about Class 2 snowmobile trails and not hiking trails. He specifically called out the Adirondack Mountain Club and Open Space Institute’s concerns “specious claims.”
Protect the Adirondacks launched this lawsuit against the Department of Environmental Conservation and Adirondack Park Agency in 2013 alleging that Class II trails violated Article 14, Section 1, of the New York State Constitution due to excessive tree cutting and terrain alterations.
Protect the Adirondacks and its expert witnesses undertook extensive fieldwork in 2012-13 and in 2015-16 to document abuses to the Forest Preserve. Counts of over 16,000 tree stumps on Class II trails, with diameter measurements and GPS locations, including photographs of over 12,000 tree stumps, were made.
In the summer of 2016 Protect the Adirondacks obtained a temporary restraining order that stopped all tree cutting by the state on Class II trails after the first 34 miles of trails were in various stages of development. The DEC and APA had approved plans for a network of hundreds of miles of Class II trails in the Forest Preserve in the Adirondacks.
In early 2017, a 13-day trial was held in state Supreme Court in Albany. In December 2017 the trial judge ruled against Protect the Adirondacks. In 2018, Protect the Adirondacks appealed to the Appellate Division, Third Department, which in a 4-1 decision overturned the lower court’s ruling in July 2019. In 2020, the DEC and APA appealed to the Court of Appeals. Oral arguments were held in March 2021 at the Court of Appeals. Today, the Court of Appeals ruled 4 to 2 in favor of Protect the Adirondacks that the DEC and APA have violated the forever wild clause of the New York State Constitution.
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.
One of the stories I wrote for this past issue of Adirondack Explorer was about a “forever wild” case before the state Court of Appeals brought by Protect the Adirondacks against the state Department of Environmental Conservation. In case you missed it, last week the court heard oral arguments from both sides, which I wrote about here.
If you click on that link above, too, we embedded the YouTube clip of the hearing so you can watch it for yourself. No matter what side you might take, it is interesting to watch the judges ask so many good questions. This whole case can get very abstract when you’re looking at the question of what is a constitutionally protected tree. But I thought the judges also got to some very specific questions about constitutional amendments and work that has been impacted thus far from this litigation.
In 1921, nearly a hundred years ago, a few dozen people met with the idea of forming an organization that would help facilitate public access to the Adirondack wilderness through trail building. A year later the Adirondack Mountain Club (ADK) was formed and, soon thereafter, ADK completed the Northville-Placid Trail. In the years that followed, ADK has not only worked to educate the public on how to steward public lands but also advocated for their protection at the highest levels, including in the various New York State courts. And, as other advocacy groups came into the picture, it became the norm to join forces in our collective strength to litigate against anything that ran afoul of Article 14 of the NYS Constitution, the Forest Preserve’s “forever wild” provision.
In response to impending construction on the proposed Class II Community Connector Snowmobile Trails—the center of today’s controversy—ADK went out and began counting trees along the intended corridor to assess the legality of this work and in anticipation of reconvening with the other Adirondack groups on how best to proceed. However, before we could, a lawsuit was singularly commenced. From the perspective of our traditional cooperation, this challenge was not off to a good start. Sadly, the arguments presented went well beyond challenging the proposed construction under the existing standard (3 inch dbh) that had served us well in balancing the Park’s wild nature with “facilitating meaningful public access and enjoyment.”
Instead, petitioners advocated for a new standard that will actually do considerable harm to the natural resources of the Forest Preserve.
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