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Court got it wrong

As part of the executive team at the New York State Department of Environmental Conservation (executive deputy commissioner, 2011-16), Commissioner Martens and I strove to listen to communities, businesses and responsible environmentalists across the state. As a former advocate for small businesses, municipalities and community and environmental organizations, I never hesitated to jump into issues when government overstepped its bounds or when developers unwisely threatened natural resources and the environment. For instance, I represented the Adirondack Council in its effort to curtail the Adirondack Club and Resort project in Tupper Lake from overdevelopment without consideration of the environmental and community impacts.

As government officials, we approached complex regulatory and land preservation issues with our eyes and ears open to legitimate concerns expressed by interested stakeholders regardless of political stripes or conflicting perspectives.

The Finch, Pruyn land acquisition represented the finest of those efforts. All of the interested parties — including environmental organizations, municipalities and citizens — were invited to participate in a discussion about the issues and concerns with the proposed Finch acquisition, which was the largest addition to the Forest Preserve in over a century. A big prize, but one which history demanded that we pursue. To be successful, we needed to find solutions to long-standing, seemingly intractable issues that have plagued our neighbors to the north for decades. We did not have the luxury of ignoring the political realities of land acquisition in the Adirondacks.

The discussions that ensued produced significant results, including providing a solution to a century-old problem involving contested title to land purportedly purchased by the state in Township 40. We succeeded. Many other issues could also be addressed based on a willingness to talk and listen and take action. Consensus arose on increasing equestrian and mountain bike access to the park, seeding economic initiatives tied to sustainable tourism and providing the communities with assistance and economic incentives to actuate their visions for their own economic and environmental sustainability.

The snowmobile proposal was the result of months of discussions among local government officials, environmental groups and DEC, who found common ground in providing a responsible environmentally protective approach to snowmobile use in the five towns in which the Finch lands mostly resided. NYSDEC developed a plan that would reduce the miles of trails that traversed interior wild forests in the park and replace them with trails on the periphery near existing roads and transportation corridors — a principle applied to the Finch acquisition. The NYSDEC plan would result in the net reduction of trails, yet connect the communities and provide economic benefits for their constituencies. Many environmental groups agreed with this plan as applied to the Finch lands.

I have practiced environmental law for approximately 40 years. I was involved in opposition to the St. Lawrence Cement plant in Hudson, New York; the agreement to redesign the Belleayre project into an environmentally acceptable alternative to the massive overdevelopment sought by the project sponsor; and, other notable projects. I represented communities which hosted major environmental projects and small businesses that were abused by an overzealous NYSDEC.

The Court of Appeals did not get this one right. With all due respect, the court misread the Constitution and misapplied its protections. Most of the constitutional amendments to Article 14 authorized the alienation of land from the Forest Preserve. Until the land bank amendment passed in 2017, municipalities had no choice but to seek constitutional amendments from the legislature on a case-by-case basis to provide basic services to its citizens while providing land of equal natural resource value in exchange. Other amendments authorized major development work on Forest Preserve land that would have been illegal but for the constitutional amendment, such as the Belleayre, Gore and Whiteface ski areas. The court was ignorant of this background and wrongly perceived that a constitutional amendment was required for the type of trail work that has been going on for years in the Forest Preserve.

The proposed snowmobile trail was, in fact, similar to a hiking trail in dimension and impact. I personally am not a snowmobiler, but the case was not about snowmobiling. The parties to the litigation stipulated that this case was about whether the tree cutting proposed by the state was legal. It was about whether the proposed community connector trails, many proposed for existing logging roads, would adversely impact the wild forest nature of the Forest Preserve. Many other amenities in the park such as campgrounds, hiking trails and equestrian trails entail cutting trees, but no court has held them to be an unconstitutional material incursion on the wild forest character of the Forest Preserve. This court mistakenly relied on its distaste for snowmobiling to taint its ruling, seemingly startled by the number of saplings slated to be removed to accommodate the trail. But common sense, let alone the Constitution, should not define saplings as timber.

The group that challenged the plan would have you believe that they saved the Forest Preserve from government action that would destroy the Forest Preserve for future generations. Nothing is further from the truth. The plan would have achieved a significant benefit for the Forest Preserve by moving trails to areas with the least impact while eliminating snowmobiling in the interior forests. Moreover, the group has made it much more difficult for DEC to acquire additional lands for inclusion in the Forest Preserve. A few misguided zealots have unfortunately taken their dislike of the Adirondack Park’s core concept involving public and private lands and spurned the partnership that would have discussed in rational terms the future of the Adirondack Park. I am sympathetic to my friends in local government and their citizens who put aside differences in order to provide for their communities into the future. As for the so-called environmentalists on the other side, your divisive approach to environmental protection and your aversion to diverse uses of the Forest Preserve, and the residents and visitors alike who enjoy those uses, leave much to be desired.

Marc Gerstman lives in Slingerlands and was executive deputy commissioner of the New York State Department of Environmental Conservation from 2011 to 2016.

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