Previously, the Almanack has asked “which side are you on” when it comes to a court case involving Article 14, the “forever wild” provision of our state constitution.
Recently, dueling press releases from plaintiff Protect the Adirondacks and the Adirondack Mountain Club, Open Space Institute, Adirondack Council, Sierra Club Atlantic Chapter and Adirondack Wild: Friends of the Forest Preserve, the group I work for – indeed suggest that all of us are retreating to our separate corners.
In truth we are longstanding and natural allies and proponents of the “forever wild” provision and much else. Politicization has not completely engulfed the world of wild nature – yet.
Our groups communicate and coordinate on many issues and in many ways. None of us could have achieved what we have without decades of collective efforts. I think of the passage of the Environmental Protection Fund; persuading DEC not to salvage log in the Five Ponds Wilderness without going to court; much new land protection in new Forest Preserve, and many private land conservation easements; our court victory to uphold the master plan and ensure wilder conditions on Lows Lake; achieving Wilderness at Boreas Ponds (though that compromise, for Adirondack Wild, was a hard swallow). And I could go on.
All that said, when I got started it was inconceivable that groups I associated with would be at odds in New York’s highest court. In the 1980s, it was a taken as a matter of faith that should Article XIV ever again rise to the level of the Court of Appeals (as it has done only once before, in 1930), groups like the Association for the Protection of the Adirondacks (my former boss), Adirondack Mountain Club, Adirondack Council and Sierra Club would closely consult and align on the same side. Later, the Residents Committee to Protect the Adirondacks would be added to that list, then Adirondack Wild and Protect the Adirondacks.
So, what has caused Friends of the Court briefs from some of these groups or their successors to be filed on opposite sides of the case brought originally in 2013 by Protect the Adirondacks against our NYS DEC, headed for argument in the Court of Appeals next month?
One answer is Governor Andrew Cuomo. Our Governor and his aides, not for the first time in history, are good at framing an argument and dividing and conquering, pitting some against others. Those “some,” of course, must be ready and willing to be so used. The divide and conquer strategy happened during the 2013 constitutional amendment to allow mineral exploration (exploitation) in the Jay Mountain Wilderness. It also happened during closed meetings to debate classification of some of the Finch Pruyn lands in 2014. And it’s happening again now before the Court of Appeals.
In 2019 Gov. Cuomo’s DEC did not have to appeal their 4-1 loss in the Appellate Division. They had other alternatives. Contrary to what Adirondack Mountain Club and others claim in their current briefs, nothing in that 2019 Court decision prevents DEC from maintaining hiking trails or working with private organizations such as the ADK to do so. That Court ruled, by 4-1, that cutting up to 25,000 trees, whether greater than or less than 3 inches in diameter, to construct wider, flatter, groomed snowmobile connectors across the Park violated Article XIV’s prohibition on material destruction of timber. It said nothing about not maintaining trails having the character of a foot trail, trails that did not substantially alter the natural surface contours of the forest.
Yes, the Appellate Court ruling did make DEC’s job (and ADK’s, and that of other trail groups) more difficult. As DEC told members of its Forest Preserve Advisory Committee after the 2019 ruling, “there is no moratorium on trail work. We simply have to reevaluate trail projects involving tree cutting. We now have to do a tree assessment of trees 1 inch in diameter or greater. There must be work plans and tree cutting counts for these projects” (quotes taken from my notes at the Oct. 2019 DEC Forest Preserve Advisory Committee meeting).
I admit those work plans counting even very small trees and saplings could not be easy, not for DEC and not for its trail work allies. But, again, “there is no moratorium on trail work” was DEC’s conclusion. In fact, a few trail projects in the High Peaks and elsewhere on the Forest Preserve have proceeded in 2019 and 2020.
One wouldn’t know this if you relied on the Adirondack Mountain Club’s and Open Space Institute’s recent press statements. “Placing severe limitations on trail construction and maintenance within the Forest Preserve would forever put these places off-limits to the public,” warned one spokesperson. The Court was at risk of blocking “sustainably built trails to ensure a safe and low-impact backcountry experience,” said another. At risk were a “diverse array of recreational opportunities,” said the ADK.
Trail work can continue
These days, it seems there is no loss of “diverse recreational opportunities.” NYS DEC Forest Rangers are beside themselves trying to keep up with the confused, the lost or the injured among us, on and off our public trails. Warnings and limitations aside, sustainably built trails somehow continue to be built.
More to the point, at no time in 2019 did the DEC – facing a significant 4-1 defeat in the Appellate Court – decide to sit down with trail and Park stakeholders, including the litigant, to see what could be done outside of court through negotiation to maintain and, as needed, construct foot trails or snowmobile trails. What trail project priorities rose to the top of the DEC list? Could stakeholders debate and agree on them, or some of them? If we could, what degree and level of tree cutting would be necessary and sufficient with the goal of avoiding further lawsuits?
Such would-be time-consuming negotiation, to be sure, but not impossible and probably productive. Instead of attempting out of court discussions, the DEC did what comes more naturally under Gov. Cuomo and filed an appeal with the NYS Court of Appeals. That Court agreed to hear the case. Oral argument is schedule for late March.
Although DEC’s interest is to uphold its snowmobile connector construction work, the administration no doubt was on the look-out for potentially friendly trail groups who might file narrowly tailored Amicus briefs. They succeeded, again, in dividing old allies. In this process, the administration is aided in its attempts to water down and impermissibly balance 54 words of Article XIV Section 1 constituting the most powerful forest preservation measure in the world.
No ‘balance’ in Forever Wild
We’re only seeking “balance” for reasonable tree cutting and trail access on the Forest Preserve, DEC and the administration claim. Their Friends of the Court allies conveniently frame the argument that this case isn’t about expanding mechanization of the Forest Preserve, it’s about “sustainably built trails.”
Don’t buy this framing of the argument.
DEC does not have the administrative discretion to balance Article XIV’s mandate with the expansion of all manner of recreational access to the Forest Preserve, sustainably built or not. Since 1894 Article XIV has placed a strict limit on governmental discretion. It balances nothing. The first sentence states the mandate clearly, that the lands of the state constituting the forest preserve “shall be forever kept as wild forest lands.”
The second sentence raises specific prohibitions that lend meaning to the mandate. It prohibits leasing, sale, or exchange and the taking of the forest preserve and, finally, the sale, removal and destruction of its timber.
The mandate – forever kept as wild forest lands – can be violated without cutting trees to any material degree. For example, allowing widespread “glamping” – with floors, walls, beds, stoves and the like – on the Forest Preserve would not require much tree cutting but would violate wild forest character. By same token, a whole lot of tree cutting must be examined for a purpose not in keeping with the forever kept mandate.
In this case, that DEC purpose is widespread distribution of wider, flatter, groomed snowmobile connectors. Such expanding mechanization of the Forest Preserve is precisely what alarmed the 1929 Appellate Court which blocked the construction of the Olympic bobsled run in Lake Placid by stating, in part: “sports which require a setting which is man-made are unmistakably inconsistent with the preservation of these forest lands in the wild and natural state in which Providence has developed them…If clearings of timber…are sanctioned for such a bobsled purpose, they are equally sanctioned for the construction of public automobile race tracks, toboggan slides, golf courses, baseball diamonds, tennis courts, and airplane landing fields, all of which are out of harmony with forest lands in their wild state” (Appellate Division in McDonald v. Association for the Protection of the Adirondacks, 1929). That ruling was upheld in the Court of Appeals. That is, to date, the only high court ruling on Art. XIV.
In 1993, the Adirondack Mountain Club intervened in a Catskill Article XIV court case, where the plaintiffs (Balsam Lake Anglers Club) argued that construction of public hiking trails and trailhead parking on Forest Preserve next to their private land – involving the cutting of saplings and mature trees – violated the constitutional prohibition on destruction of timber. ADK argued that the trails and parking constituted an immaterial degree of cutting for hiking, an activity compatible with the wild forest character of the Forest Preserve.
The court, in this case the Appellate Division, agreed, but went further. According to Neil Woodworth, former Executive Director of the ADK, the court “established that proposed uses of the Forest Preserve must be compatible with the use of the Forest Preserve” AND that “the amount of cutting must not be constitutionally prohibited.” The facts of the case showed that the amount of tree cutting involved would add up to no more than a cord of firewood.
ADK, then, sided with the court’s tests that uses on the Forest Preserve must not require a material degree of tree cutting and that such uses must be compatible with the Forest Preserve’s wild forest character, regardless of whether those activities are recreational in nature or not. Recall that recreational activities on the Forest Preserve must never be “out of harmony with forest lands in their wild state” (1929 McDonald court).
Going further back in time, when the first snowmobile trails were being cut by the former Conservation Department, ADK was sending volunteers out into the field to exhaustively investigate the level of tree-cutting. ADK volunteers gave me a document full of photographs prepared in January 1971 for Dave Newhouse, then chairman of the ADK conservation committee and later, president of the club. “This survey to determine if the constitutional protection of the Forest Preserve has been violated by the recent construction of snowmobile trails was undertaken after the Committee received a number of complaints from Chapter members of excessive cutting and opening up of the Preserve where these trails has been constructed,” wrote the Schenectady Chapter of the ADK. After noting its finding that a total of 125 trees 4 inches or larger in diameter had been cut to construct 13 miles of snowmobile trail on the Forest Preserve, slightly less than 10 trees per mile of trail, the authors of the study concluded that we “suspect a substantial violation of the Forest Preserve has been made in the cutting of snowmobile trails.”
So, earlier generations of ADK volunteers were alarmed at finding 10 mature trees cut per mile of snowmobile trail in 1971. They felt, at the highest level of the club, that such cutting violated Article XIV. DEC was cutting hundreds of trees (220 mature trees, on average, per mile of community connector trail, and up to 900 per mile if you count smaller trees 3 inches in diameter or smaller) in 2012-13 before the Protect litigation. Given this far greater scale of cutting for the same outdoor recreation of snowmobiling, it is perplexing why all of us are not arguing in our briefs that snowmobile community connectors are, indeed, out of harmony with forest lands in their wild state.
It is also also perplexing why the Appellate Division in 2019 argued that Protect the Adirondacks was correct that the cutting of 25,000 or so trees for snowmobile connector trails triggered the constitutional prohibition on material tree cutting, but that wider, flatter, faster snowmobile connector uses for which the trees were cut do nothing to harm wild forest character. Hopefully, the Court of Appeals will consider this question.
The character of the forest
The case now before the Court of Appeals should not be viewed as one about sustainably built trails or diverse recreational opportunity on the Forest Preserve. It should not be viewed as one about allowing or disallowing snowmobiling on trails that also have the character of a foot trail. It should be viewed as a case about accommodating more and more intense mechanization of the Forest Preserve in a setting out of harmony with forests in their wild condition by the building of wider, flatter, faster snowmobile routes through the Preserve, with a whole lot of tree cutting involved, more than twenty times the cutting levels of the early 1970s. Would that the ADK, Adirondack Council, Sierra Club, Adirondack Wild and Open Space Institute – all of us – come before the Court of Appeals with plaintiff Protect the Adirondacks on that basis.
Would that we collectively argue before the Court that the two sentences and 54 words of Section 1 must be considered together as a mandate and a strict limit on governmental discretion. Yes, the tree cutting for the connector trails has been pushed beyond the constitutionally allowed “immaterial” level. But so has the degree of mechanization, the level of use, the alteration of the Forest Preserve forest floor to accommodate more powerful recreational machinery. That, too, is where the Court of Appeals should find that DEC must abide by the “forever kept” mandate, consistent with prior court rulings in 1930 and the lower court ruling in 1993.
No longer should our environmental conservation department be enabled to administratively justify ever faster, easier, more mechanized access to the Forest Preserve as widening recreational opportunity. Our far greater and urgent opportunity, one DEC should always embrace, is to pass on millions of acres of wild lands unimpaired to coming generations. No other state has that opportunity. Unlike every other state, New York’s Forest Preserve is not protected by departmental policy governing natural or recreational resources. These lands are uniformly safeguarded by our state’s very constitution for a very diverse public which still appears enthusiastic that these lands be reserved and managed as “forever wild” in the public trust. This fact alone makes these Adirondack and Catskill forests so close to many millions unique and irreplaceable.
By Dave Gibson, Managing Partner Adirondack Wild