By Gwendolyn Craig
An hour of oral arguments summed up nearly eight years of litigation on Tuesday in the state’s highest court, which will soon decide what qualifies as a constitutionally protected tree in the Adirondack Forest Preserve.
Protect the Adirondacks, a nonprofit advocacy group, sued the state Department of Environmental Conservation in 2013 over the construction of Class 2 community connector trails on the forest preserve. Those are, in essence, snowmobile trails that are 9 feet wide, and 12 feet wide on some curves and slopes.
Protect argued that the number of trees to be cut in the first 25 miles of those planned trails, along with how the trail would be built, violated the state constitution’s “forever wild” clause. That clause in Article 14 states that the forest preserve “shall be forever kept as wild forest lands,” and adds that timber on the preserve shall not be “sold, removed or destroyed.”
The DEC has argued its longstanding guidance on tree cutting, including what is proposed to make these connector trails, does not violate the constitution.
The lawsuit has made its way to the New York State Court of Appeals, dividing typically aligned advocacy groups, over what the outcome should be. Some groups fear the decision, if made in Protect’s favor, could impact all trail maintenance, rerouting other projects in the Adirondack Forest Preserve. Other groups, including Protect, believe the outcome would only affect community connector trails.
It’s unclear when the Court of Appeals could deliver its decision.
Jennifer Clark, an attorney representing the DEC and Adirondack Park Agency, had 10 minutes to present her side to six presiding judges on Tuesday. Judges peppered Clark with a number of questions, extending the time to 37 minutes.
Many frequently brought up a 1930 case also brought by the Association for the Protection of the Adirondacks against the state. In that case, the Court of Appeals looked at whether construction of a bobsled run intended for the 1932 Winter Olympics, which involved cutting around 2,500 trees, would violate Article 14. The court ruled in favor of the association then, stating that the constitution forbids “any cutting or any removal of the trees and timber to a substantial extent.” It also ruled the state could maintain and create its facilities and trails, as long as there was not “the removal of timber to any material degree.”
Clark stressed that timber harvesting was the context around Article 14, and the trails that DEC is proposing in this instance are meant to provide public access.
Judge Eugene Fahey said DEC’s argument was what he expected and was a rational one. But, he said, just because an idea or project proposal might be rational, it doesn’t mean it is constitutional.
“This is the case of one man’s ceiling is another man’s floor,” Fahey continued. “It’s a death by a thousand cuts, is what DEC is presenting us here.”
Clark highlighted how the DEC was closing some snowmobile trails in the more sensitive areas of forest preserve and moving new trails to the outskirts near roads. DEC has limits on the number of snowmobile trails allowed in the forest preserve, Clark added, and “APA and DEC take seriously their responsibility to safeguard the preserve.”
Judge Michael Garcia asked why the DEC would not consider a constitutional amendment for building the connector trails. He referenced more than a dozen constitutional amendments to the “forever wild” clause.
Clark said notably absent from the list of constitutional amendments is anything pertaining to trails.
Garcia said since the state was making trails for mechanized vehicles — that is, snowmobiles — he thought the proposal was more like a road. There are roads referenced among the list of constitutional amendments already made. Clark said the snowmobile trails would not be much wider than a typical hiking trail.
Judge Rowan Wilson mentioned the latest constitutional amendment regarding the “forever wild” clause, which allows for a land bank so local municipalities might make infrastructure improvements that could be on forest preserve.
“Doesn’t that then suggest that this constitutional provision is so dramatic, so forceful that even the current understanding to brace an existing telephone pole, if the brace is going to be on forest preserve,” required a vote from the people of New York? Wilson said.
Clark said she didn’t know the full background on that amendment, but “the purpose of the provision is to protect the preserve so it could be enjoyed by future New Yorkers.” She said what Wilson was describing had “nothing to do with allowing New Yorkers to enjoy the wild forest lands.”
Chief Judge Janet DiFiore asked how the case has affected DEC’s projects. Clark said it has altered general trail maintenance and rerouting of trails, and construction of lines of safe drinking water access.
John Caffry, attorney representing Protect the Adirondacks, finally addressed the court.
Judge Leslie Stein asked Caffry whether Protect’s lawsuit covers all trees in the forest preserve. Caffry said he does not believe it does. Stein asked Caffry if the context of tree cutting makes a difference and suggested the court would need to determine what was a “material” and “substantial” number of trees.
“If you cut down a material and substantial number of trees, it’s wrong regardless of the purpose,” Caffry said.
Garcia said the 1930 case law appears to take into consideration purpose.
“What would concern me would be, would you apply the same test to action taken to prevent damage to the forest?” Garcia asked. “What if you’re clearing trees to prevent a fire or a fire hazard? Would you count trees in the same way, so to speak, as you count trees for a toboggan slide?”
Allowed a two-minute rebuttal, Clark said context does matter. If you cut 10 trees down on forest preserve to be sold off, that would be different from cutting 10 trees for forest fire prevention.
Judge Jenny Rivera asked what is the point of a mechanized route in the forest preserve, something that “is for a very limited number of the population.”
“The point is, you would not have to build them this way, but for, the mechanized, the machine,” Rivera said. “It’s because you’re accommodating the machine, as opposed to access by the general public.”
Clark said not all New Yorkers are able to hike, and these trails would accommodate more people.