On the law’s cutting edge

Protect the Adirondacks lawsuit could clarify state constitution’s mandate against destroying trees in the Forest Preserve.

By PHIL BROWN

A rose is a rose is a rose, Gertrude Stein said. Defining a tree is not so simple.

That question—what is a tree?—has emerged as a central issue in a long-running dispute over the construction of “community-connector” snowmobile trails in the Forest Preserve. These trails, which link hamlets, are nine feet wide (twelve feet on curves) and graded to make them smooth.

Peter Bauer examines a stump along a newly constructed community-connector trail.
PHOTO BY MIKE LYNCH

Peter Bauer, executive director of Protect the Adirondacks, contends they resemble roads more than trails. Since 2013, Protect has been pressing a lawsuit contending that community connectors violate Article 14 of the state constitution.

Article 14 states that the Forest Preserve “shall be forever kept as wild forest lands.” Just as important for Protect’s argument, it also declares that timber on the Preserve shall not be “sold, removed or destroyed.”

State judges have ruled that this doesn’t mean that no trees can be cut on the Preserve, but it’s still an open question how much cutting is permissible.

Neil Woodworth, executive director of the Adirondack Mountain Club, said Protect’s lawsuit against the state Department of Environmental Conservation and the Adirondack Park Agency could clarify the issue and contribute to an area of law where few precedents exist.

“Any case which interprets the forever-wild clause is automatically an important case and will be a precedent,” said Woodworth, who is an attorney.

In the 122-year history of Article 14 (originally, it was Article 7), there have been just two major cases in which judges addressed the question of tree cutting in the Preserve.

In a landmark case in 1930, the Court of Appeals, the state’s highest tribunal, said the constitution forbids “any cutting or any removal of the trees and timber to a substantial extent.” In the same decision, it said the state could create and maintain facilities, such as trails, “which did not call for the removal of timber to any material degree.”

The seven judges ruled unanimously that the construction of a bobsled run near Lake Placid for the 1932 Olympics would violate the forever-wild clause. The bobsled run would have entailed the clearing of a one-and-a-quarter-mile-long corridor sixteen to twenty feet wide—a total of four and a half acres. It was estimated that 2,500 trees would be cut.

Two key phrases from that decision in Association for the Protection of the Adirondacks v. MacDonald stand out: “to a substantial extent” and “to any material degree.” However vague, these remain the benchmarks for determining how many trees can be cut on the Forest Preserve.

The second big case came more than sixty years later. In 1993, the Appellate Division of State Supreme Court, a midlevel appeals court, cited the MacDonald decision and ruled that DEC had the right to cut trees to create parking lots and hiking and cross-country-ski trails on a part of the Forest Preserve in the Catskill Park. It was estimated that the project would require the cutting of 350 trees and 312 saplings.

“Those proposed uses appear compatible with the use of forest preserve land, and the amount of cutting necessary is not constitutionally prohibited,” the Appellate Division said.

It might be tempting to conclude from these two cases that it’s OK to cut 350 trees and not OK to cut 2,500 trees, with any number in between lying in a gray area. Of course, it’s not that easy.

DEC acknowledges that it plans to cut far more than 2,500 trees to build community connectors. In a chart included in court papers, the department estimates that it will cut about 6,500 trees on sixteen such trails. Because the cutting will be spread throughout the Park, the state argues that the number of trees cut per mile falls within parameters set by the courts.

Protect, however, says the community-connector network will require the removal of tens of thousands of trees. The disparity is due to different methods of tallying trees.

DEC counts only trees at least three inches in diameter at breast height (dbh), asserting this is a common standard in forestry for defining a tree. Protect contends that the standard is arbitrary and that smaller trees (one to three inches dbh) should be counted as well.

Steven Signell, a forest ecologist hired by Protect, argues that all trees—big or small, living or dead—contribute to the health of a forest.

In an affidavit, he distinguishes saplings from small trees. The latter, he says, have large root masses and often survive for decades. He calls DEC’s reliance on the three-inch standard “a relic of an institutional silvicultural mindset that stretches back many decades.”

“Using a cutoff based on forestry and silvicultural principles is inappropriate on the Forest Preserve, as the Forest Preserve is explicitly NOT managed for commercial value, but for ecological preservation. Therefore, ecological principles should be used to define a tree,” Signell says in the affidavit.

Assistant Attorney General Loretta Simon, who is representing DEC, notes that Article 14 refers to “timber,” not trees. “DEC policy and forestry standards do not consider trees under 3 inches dbh to be timber,” she asserts in court papers. She also says that courts in similar cases, including the landmark MacDonald case, have not taken into account small trees.

“There is simply no support for plaintiff’s argument that the tree tallies do not reflect the full extent of tree cutting,” Simon declares.

If the courts adopted Signell’s argument, the tree tallies would increase dramatically. For example, DEC estimates that it cut less than 1,924 live trees (and 161 dead trees) when it built the 11.9-mile Seventh Lake Mountain Trail in the Moose River Plains Wild Forest. Signell, who walked the trail this year, says more than 6,480 trees were cut. About 85 percent of these, however, were less than three inches dbh. Signell says the 6,480 figure “vastly underestimates” the extent of tree cutting because many of the stumps were no longer visible or were destroyed during trail construction.

Bauer says community connectors usually entail cutting about a thousand trees per mile. In contrast, DEC says it cut just 162 live trees per mile on the Seventh Lake Mountain Trail.

Apart from the tree-cutting, another question is whether community connectors run counter to the “forever wild” character of the Forest Preserve. Bauer says DEC makes cuts into slopes, removes boulders and large stumps, grades the surface, builds large bridges, and, in winter, maintains the trail with tracked groomers. “These trails are constructed for motor vehicles operating at a high rate of speed,” he said.

The state argues that the new trails will enable DEC to close routes in the interior of the Preserve, enhancing its overall wildness.

State Supreme Court Justice Gerald Connolly is scheduled to hear arguments in the case in Albany on December 5. For the time being, the department is prohibited from continuing work on the community-connector trails.