ALBANY — 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 what are categorized as Class 2 community connector trails on the forest preserve — snowmobile trails between 9 and 12 feet wide.
The plaintiffs argued that the number of trees to be cut in the first 25 miles of those planned trails, along with how the network would be built, violated the state constitution’s “forever wild” clause, which states that the forest preserve “shall be forever kept as wild forest lands.” It also commands 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. An appellate court decision said the trails were allowed under "forever wild," though the amount of tree-cutting involved was excessive.
As the lawsuit has made its way to the state Court of Appeals, it has divided typically aligned advocacy groups. Some fear the decision, if made in Protect’s favor, could impact all trail maintenance, rerouting and other projects in the forest preserve. Other groups, including Protect, believe the outcome would only affect community connector trails.
Jennifer Clark, an attorney representing the DEC and the 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. (The court lost its seventh member, Associate Judge Paul Feinman, after his recent resignation due to health problems.)
Several brought up a 1930 case 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, a project that involved cutting around 2,500 trees, would violate Article 14. The court ruled in favor of the association, 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 Article 14 was intended to prevent large-scale timber harvesting, and the trails that DEC is proposing in this instance are meant to provide public access.
Judge Eugene Fahey called DEC’s argument rational — but noted that 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 said. “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 the 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 amendments to the “forever wild” clause that have been put before voters statewide.
Clark said the list of constitutional amendments does not include anything pertaining to trails.
Garcia responded that roads were addressed by those amendments, and since the state was making trails for mechanized vehicles — snowmobiles — he thought the proposal was more like a road. 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 on forest preserve land.
Wilson asked, “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?
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, the 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 the purpose of a proposed action.
“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 down 10 trees on forest preserve land 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, a feature 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.
Gwendolyn Craig writes for the Adirondack Explorer, a nonprofit news organization covering issues within the forest preserve.
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