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New York’s highest court rules against DEC tree cutting

Victory for environmentalists, restricts future trail work

This tree, measuring less than 3 inches, was cut by the state Department of Environmental Conservation for a snowmobile trail and was one of 12,000 photographed by Protect the Adirondacks for court records. The cutting of these trees was the subject of a lawsuit in the highest court in New York. (Provided photo — Peter Bauer)

New York’s top court ruled on Tuesday that the state violated its own constitution by cutting trees for snowmobile trails in the Adirondacks. This case also defined what the word “timber” means in the “forever wild” clause of the state constitution, expanding it to include trees under 3 inches in diameter.

While the ruling says too many trees were cut for these trails, it leaves vague how much will be too much cutting for future trail work.

The state Court of Appeals ruled in favor of the environmental group Protect the Adirondacks in its eight-year-long lawsuit against the state Department of Environmental Conservation. The court found that the DEC’s plan to create 11 wider Class II trails around the park, some of which would be on state-owned Forest Preserve land, violates the “forever wild” clause — Article 14 — of the state constitution.

The court concluded that these trails may not be built without obtaining a constitutional amendment from New Yorkers. A constitutional amendment must pass two consecutive sessions in both legislative chambers and be voted on by the majority of New Yorkers to be adopted.

The court’s decision was divided 4-2.

The majority — Justices Jenny Rivera, Eugene Fahey, Rowan Wilson and Michael Garcia — said the tree cutting is unconstitutional because of the number of trees cut and the impact it would have on the Forest Preserve without benefiting the general public.

The dissenting justices — Leslie Stein and Chief Justice Janet DiFiore — believe the cutting is constitutional, counting a lower number of trees that would be cut and saying trails would have minimal impacts to the Forest Preserve while providing access to the wilderness.

The difference in the number of cut trees counted boils down to an interpretation of whether the word “timber” in Article 14 includes trees under 3 inches in diameter. This distinction made the difference in whether the plan would involve cutting 6,100 trees or 25,000 trees, in the eyes of the state.

The majority found that trees of any size, even those under 3 inches in diameter, are protected under the Article 14. This meant the court found that 25,000 trees would be cut, and it ruled that this level of tree cutting would destroy timber to a “substantial extent” or “material degree” that violates Article 14.

This ruling will limit the state’s cutting of Class II snowmobile trails in the future, as precedent has been set for this style of trail to be deemed excessive by the courts.

Protect reaction

“Hallelujah,” Protect the Adirondacks Executive Director Peter Bauer said when contacted Tuesday.

He said “a tree is a tree” and that small trees can be old ones. He personally collected evidence for the case by going out to the trails, measuring and photographing each stump, and counting the rings.

This lawsuit has been in the state court system for eight years. The state Supreme Court dismissed the case, siding with the DEC. The Third Judicial Department of the Supreme Court Appellate Division in 2019 reversed that decision in favor of Protect the Adirondacks. Finally it reached the highest court, the Court of Appeals.

Protect the Adirondacks initially filed the lawsuit in 2013 to halt construction the Class II trails. The lawsuit stopped the final 6 or 7 miles of the first 27-mile trail from being cut, and stopped cutting on other Class II trails before they began.

Cutting concerns

The Adirondack Wild group also cheered the ruling, but this lawsuit has been controversial even among green groups.

Some have worried that expanding the definition of timber to smaller trees will hinder maintenance of the Forest Preserve’s 2,000 miles of hiking trails, which often requires clearing seedlings and saplings.

In her dissenting opinion, Stein said adopting this interpretation of timber to include smaller trees “would disincentivize trail maintenance and thereby unreasonably increase the risk to the millions of people who use the Preserve each year.”

This lawsuit has led the DEC and other trail organizations to halt trail cutting on unrelated projects in the Forest Preserve, too. They’ve been waiting for the court to dictate what tree cutting is allowed.

These smaller trees can still be cut to create trails for public access to the wilderness, but these trails must not destroy timber to a “substantial extent” or “material degree.” The terms “substantial extent” or “material degree” are not yet clearly defined.

Bauer said he would like if the DEC could sit down with Protect the Adirondacks and other stakeholders to decide on a definition for these terms. He said he would prefer this to further defining them through court cases.

Bauer believes other types of trails — for hiking or mountain biking, for instance — should not have a problem with this new definition because they should not involve cutting timber to this extent.

He said the Class II trails would require cutting 700 to 1,000 trees per mile. If a hiking trail requires that many trees cut, he said it’s poorly designed.

Constitutional amendment

Justices said Class II trail construction can only be done through a constitutional amendment. Since Article 14 became law in 1895, there have been 19 constitutional amendments allowing exceptions to the rule, four in the last 15 years. These amendments have allowed construction such as a state highway from Saranac Lake to Old Forge, Whiteface Veterans’ Memorial Highway, ski trails at Whiteface and Gore, a well in Raquette Lake, a power line through Colton to Tupper Lake and mining in Willsboro.

“If the trails at issue here are equally important to New York as those projects were, then the people can express their will accordingly through the democratic process,” Rivera wrote in the majority opinion. “Until they say otherwise, however, the door is closed because the planned Class II trails are constitutionally forbidden.”

In her dissenting opinion, Stein said the majority “misreads our State Constitution to arrive at (this) mistaken conclusion.” She said the constitutional amendment process is “arduous.”

Opinions

The two camps of justices also differed on their interpretation of the intent of Article 14,

Stein said the majority opinion “thwarts the intention of the drafters of the Forever Wild provision … and manifestly contradicts this Court’s precedent.”

The Court of Appeals has only considered this tree-cutting issue once before, in the 1930 case “Association for Protection of Adirondacks v. MacDonald.” This case was highly cited by both the majority and dissenting opinions. In it, the court found that the state’s planned construction of a bobsled run for the 1932 Winter Olympics in Lake Placid, which would have required cutting 2,500 trees on 4.5 acres, was unconstitutional.

Stein argued that the Forest Preserve and Adirondack Park “are for the reasonable use and benefit of the public,” quoting the MacDonald case.

She says Article 14 was written with recreation in mind.

“They did not intent to create purely isolated and untouched haven,” she wrote. “Rather, they preserved the forest for the use and enjoyment of the people.”

She said the framers thought of protection and use of the preserve as “interlocking goals.”

Rivera wrote that connecting communities with snowmobile trails does not benefit the overall public and rejected the DEC’s justification that these trails also have a broader purpose.

The DEC argues that these trails could be used year-round by a variety of users, but Rivera said the specific width of the trails is only meant for snowmobiles.

“Their construction is based on the travel path and speed of a motorized vehicle used solely during the snow season,” she wrote.

The Class II trails are wider than hiking trails to accommodate snowmobiles and grooming machines. They are 9 feet wide but on curves, slopes and bridges expand to a 12-foot width. Rivera said this is comparable to an interstate highway lane.

Stein, in her dissenting opinion, said it’s not the width but the nature of the trails that matters. The trails, not being paved, covered in gravel or crowned to divert water, are more akin to hiking trails than highways, she said.

She wrote that the tree cutting in this case is spread out over 27 miles, did not hurt old-growth trees, maintained a closed canopy and resulted in closure of motorized use of 46 miles of existing snowmobile trails in more sensitive interior areas. The addition of 27 miles of trails does little compared to the existing 800 miles of snowmobile trails in the 2.6 million acre preserve, the constitutionality of which are not disputed, she said.

“The Cuomo administration has made the expansion of motor vehicle use in the Forest Preserve one of its biggest priorities in the Adirondack Park, pushing longstanding policies and laws to the breaking point,” Bauer wrote in his reaction to the ruling. “Hopefully, this decision will put the brakes on the Governor and his state agencies.”

(Correction: An earlier version of this article incorrectly stated that Protect the Adirondacks Executive Director Peter Bauer said the snowmobile trails would require cutting 7,000 trees per mile. He said they would require cutting 700 to 1,000 trees per mile. The Enterprise regrets the error.)

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