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Class II is nothing like a hiking trail

Historic court ruling leaves New York with many reforms to make

Trees with paint are trees on the Newcomb to Minerva Trail marked for cutting but were saved by an injunction. (Provided photo — Peter Bauer)

In a sweeping and decisive decision last week, New York’s highest court ruled in favor of Protect the Adirondacks that a new type of wide snowmobile trail is unconstitutional. This decision cries out for key reforms in the management of the Forest Preserve. The Cuomo administration had planned to build hundreds of miles of these new trails. These plans are now blocked by the court’s ruling that upholds 125 years of forever wild constitutional protections for the public Forest Preserve.

This decision reaffirmed the importance of constitutional protections for the Forest Preserve. Article 14, Section 1 of the Constitution, the famed “forever wild clause,” safeguards the 3 million-acre Forest Preserve in the Adirondacks and Catskills. In every way, these are the people’s lands. They belong to everybody and are open to everybody. The clause states that the Forest Preserve “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.” Not a single word of it has changed in over 125 years.

Article 14 is a covenant between the people and the state. It was included in the Constitution because its framers believed that, due to a history of undue outside influence and corruption, neither the governor, legislators or state agencies such as predecessors of the Department of Environmental Conservation could be trusted with the power to make major changes to the Forest Preserve. That power is reserved for the people. Article 14 has been amended dozens of times to authorize specific actions, but the final step has always been a vote by the people.

In a historic ruling, the New York Court of Appeals ruled that cutting over 25,000 trees and clearing over 27 acres of forest land on the Forest Preserve in the Adirondacks, to build 27 miles of wide snowmobile trails known as “Class II Community Connector” snowmobile trails, violated the Constitution. The trails were the first planned by the DEC and Adirondack Park Agency to build hundreds of miles of such trails. The decision was the second major Forest Preserve decision in New York’s history, lining up with the seminal case from 1930.

The DEC and APA approved dozens of new Class II trails in recent years. Class II trails are a fundamentally different kind of “trail” in the Forest Preserve. They were something new and not seen before. Over 27 miles of the state’s first Class II trails, DEC cut nearly 1,000 trees per mile, measured at a width of 1-inch diameter at breast height (DBH) or greater. They are designed to be 9 to 12 feet wide, but are often wider on slopes and turns. They require extensive “bench cutting” where cleared widths can reach 20 feet. The trail surface is graded with heavy machinery, removing rocks and roots so that the trail surface is uniform and flat. Twelve-foot-wide bridges are built to handle the weight of a pickup truck. At the end, they are often planted with grass, becoming long grassy corridors discordantly cut through intact forestlands.

Class II trails are nothing like hiking trails, though many tried to blur the differences. The courts saw that Class II trails were vastly different from hiking trails. In the end, eight out of 12 judges at three different levels of New York courts ruled that Class II trails violated the Constitution. The state’s highest court wrote that Class II trails “may not be built like roads for automobiles or trucks, but neither are they constructed as typical hiking trails.” The court concluded “the door is closed because the planned Class II trails are constitutionally forbidden.”

The state’s highest court also affirmed that Article 14, Section 1, the famed forever wild clause, was designed to protect all trees, not just some trees. The decision affirmed that cutting down hundreds of trees per mile at the size of 1-inch diameter at breast height (DBH) or greater violated Article 14. All trees in the Forest Preserve that make up the whole forest are protected under the Constitution, not just large, merchantable “timber” of high commercial value. This is important guidance for the Cuomo administration and the DEC and APA going forward. The state’s highest court also upheld long-standing precedents that trees can be cut down on the Forest Preserve for a variety of recreational purposes as long as cutting is neither material or substantial.

We’ve heard a lot of hand wringing that somehow this ruling will prevent hiking trail construction or maintenance. Those wringing their hands are either under the impression that somehow they need to cut down 1,000 or so trees per mile 1 inch DBH or bigger to build or maintain a hiking trail, or they are simply attempting to mislead the public.

Class II trails are vastly different from foot trails. For example, 13 trees were cut to build the popular new 1-mile-long Coney Mountain trail south of Tupper Lake. The new 1.3-mile Goodman Mountain trail had 63 trees cut. Under the court’s decision, this type of trail can continue to be built and maintained. There are simply no hiking trails that require cutting hundreds of trees per mile. No hiking trails require the massive terrain alterations required to build Class II trails, or are constructed with multi-ton excavators.

What does it mean when New York’s governor violates the state’s Constitution? What does it mean when the state’s two leading environmental agencies are found to have violated the state Constitution? The Cuomo administration pushed the DEC to violate Article 14, Section 1, the famed forever wild clause of the state Constitution. Basil Seggos and Joe Martens will go down as the first, and hopefully only, DEC commissioners to violate the forever wild clause. This is a sad state of affairs for New York’s top environmental agency.

Critical reforms are needed in the months ahead. The DEC and APA need to amend and revise key Forest Preserve management policies and regulations. A number of unit management plans need to be revised and updated. Both agencies have big jobs ahead of them to get back on the right side of forever wild.

Peter Bauer is executive director of Protect the Adirondacks, based in North Creek.

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