Court of Appeals: Clearing trees for snowmobile trails unconstitutional

By Gwendolyn Craig

Snowmobile trails planned for the Adirondack Park violate the state constitution’s “forever wild” clause and may only be approved through a constitutional amendment, the state’s highest court has ruled.

In a rare New York State Court of Appeals ruling on the constitutional language protecting the Adirondack and Catskill forest preserves, four judges sided with Protect the Adirondacks, the advocacy organization that brought the suit against the state Department of Environmental Conservation and Adirondack Park Agency. Two judges dissented.

Tuesday’s decision, resting on a constitutional provision ensuring that the preserves remain “forever wild,” ends nearly eight years of litigation and overturns part of a lower court ruling. It holds that a state plan to build trails connecting North Hudson to Newcomb, Minerva and Indian Lake would result in too much tree cutting. The trails were to be 9 to 12 feet in width.

“This is a great day for the public forever wild Forest Preserve,” Peter Bauer, executive director of Protect the Adirondacks, said in a news release. “Today’s Court of Appeals decision is a historic victory because the court upheld the constitutional protection of the forever wild Forest Preserve and found that (Gov. Andrew Cuomo’s) administration and state agencies had engaged in unconstitutional destruction of its trees.”

The DEC was reviewing the decision, a spokesperson said in an email to the Adirondack Explorer.

Fred Monroe, communications director for the Adirondack Park Local Government Review Board, called news of the court’s decision “a sad day for residents of the Adirondacks whose winter economy is heavily dependent on the benefits of the winter activity produced by snowmobiling.”

The lawsuit had split environmental and outdoor recreation groups, some of whom feared that a win for Protect could hinder other trail work in the park.

Protect challenged the trails in 2013, arguing that the number of trees the DEC would cut in the first 25 miles of so-called Class II community connector trails, which are built to accommodate snowmobile use, was unconstitutional. Article 14 in the state constitution states that lands in the forest preserve “shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.”

The State Supreme Court in Albany ruled in favor of the DEC in 2017. In 2019, the Appellate Division, Third Department ruled in favor of Protect the Adirondacks. Its ruling, however, left room for argument by Protect, the DEC and trail groups in the Adirondacks. The Appellate Division separated parts of Article 14 and said the community connectors violated the forever wild provision, but that the amount of tree cutting was not unconstitutional. In the Court of Appeals decision, judges unanimously said the “forever wild” clause should be read as a whole and not be bifurcated.

“We won both parts of the lawsuit today,” Bauer told the Adirondack Explorer. “The DEC and APA are going to have to go back and figure out, given this guidance that the courts have given them, what it means to managing snowmobiling on the forest preserve.”

Or, Bauer added, they could pursue a constitutional amendment, as the court suggested. Bauer said Protect would not support that. The New York State Snowmobile Association was not so optimistic about an amendment passing, either.

“Considering the City of New York wags the tail of the dog, I don’t think that’s going to fly,” said Dominic Jancangelo, the snowmobile group’s executive director. Of Protect, he said, “they hate snowmobilers and they want them banned from the park.”

Bauer has often said Protect does not want snowmobiling banned, and pointed to the vast number of trails on private lands and easements.

“I don’t care what they say,” Jacangelo said. “Your actions speak louder than words.”

Justice Jenny Rivera issued the majority decision, which said “the cutting and removal of thousands of trees, grading and leveling, and the removal of rocks and other natural components from the Forest Preserve to create snowmobile paths that are nine to 12 feet in width” violates the “forever wild” part of the state constitution.

Judges relied heavily on interpreting a 1930 court case examining the same constitutional provision in Association for the Protection of the Adirondacks v. MacDonald. In that case, the court ruled that the destruction of some 2,500 trees for a bobsled run intended for the 1932 Winter Olympics in Lake Placid was unconstitutional.

“Unquestionably, the value to the public of hosting the Olympic games and bobsledding in the years thereafter was high,” Rivera wrote. “Nonetheless, we held that the bobsleigh run could not be built, despite its attractions, because the constitution forbade it.”

Rivera wrote that the bobsled run construction is no different from the snowmobile trails DEC and APA proposed to build. For the roughly 27 miles of trails Protect specifically challenged, DEC would have to clear 6,184 trees, at the size that DEC officially considers a “tree”—3 inches in diameter at breast height. Protect’s total count of the trees removed included trees 1 inch in diameter at breast height, meaning the DEC would remove 25,000 trees.

Bauer counted these smaller trees, he said, because width is not a clear indicator of age. For example, many of the alpine trees on Adirondack High Peaks are what’s known as krummholz. Their growth is stunted due to local conditions. Though the snowmobile trails that the state proposed would not cross High Peaks summits, Bauer has also counted rings on the stumps of smaller trees at lower elevations that are older than their size would suggest.

DEC and APA already had built some parts of these snowmobile trails on the forest preserve, and it’s not clear what will happen to those now. Bauer said there could be some issues with the trails built around Seventh Lake Mountain in Long Lake, as well as incomplete trails from Newcomb to Minerva, Newcomb to North Hudson, and Indian Lake to the Essex Chain Lakes.

“The DEC needs a new tree-cutting policy that recognizes everything down to 1-inch diameter at breast height,” Bauer said.

Besides the size and number of trees cut, the court decision takes issues with the width of the snowmobile trails. The connectors are intended to be 9 feet wide, but on some slopes and curves could be 12 feet wide. Rivera said that would be “the same width as an interstate highway lane and enough to accommodate two SUVs, side-to-side.” Some cuts for particularly sloped ground could require “clearing of the forest floor up to 20 feet in width in certain areas—a span wide enough to site a two-car garage.”

Rivera and the affirming judges believe that the connector trails rise to the level of asking New York residents if they want them on forest preserve. That would have to happen through a constitutional amendment, a lengthy process that involves the passage by two successive state Legislatures, followed by a public referendum.

The “forever wild” clause has been amended 19 times, four of which were passed in the last 15 years. Rivera points out that some of those amendments were for motorized uses.

“If the trails at issue here are equally important to New York as those projects were, then the people can express their will accordingly through the democratic process,” Rivera wrote. “Until they say otherwise, however, the door is closed because the planned Class II trails are constitutionally forbidden.”

Groups in favor of Protect’s lawsuit praised the court ruling, including the Adirondack Council and Adirondack Wild: Friends of the Forest Preserve.

“We are feeling vindicated,” said John Sheehan, communications director of the Adirondack Council.

Justice Leslie Stein wrote the dissenting opinion, with which Chief Justice Janet DiFiore concurred.

“The majority misreads our State Constitution to arrive at the mistaken conclusion that the people of this State must undertake the arduous process of constitutional amendment to enable a long-standing public use of the preserve to continue in a manner that is both safe for, and designed to protect, the Preserve’s most sensitive resources,” Stein wrote.

The snowmobile trails were part of a larger network plan for the Adirondacks, but the focus of the lawsuit involves a five-town hub in the central Adirondacks. The DEC and APA were closing some snowmobile trails in the more interior parts of the forest preserve, while the new trails would more closely follow existing roads. The network also included DEC guidelines not to cut larger, old-growth trees and not to cut into the forest canopy.

Jacangelo said he thinks this decision will reduce community support for state land acquisitions, such as former timberlands that New York added to its preserve and had planned to cross with trails. He called the state’s promises for those plans to create an economic hub around the Essex Chain Lakes and Boreas Ponds “meaningless.”

“What else is new from the state of New York?” Jacangelo said. “If that sounds pretty negative, yeah it is, because the record really isn’t speaking for itself here.”

The New York Snowmobile Association, he added, may now look to approach property owners before they consider selling to the state, so the organization can build trails before the land falls into the forest preserve.

The constitution references the word “timber,” and not “trees,” and Stein said the timber involved in the snowmobile trails was “not sufficiently substantial or material in itself.” Unlike the MacDonald case, Stein said, the snowmobile network trails do not involve any clear-cutting of trees.

This is what Monroe and the Adirondack Park Local Government Review Board have stressed. The board believes the constitutional interpretation of “timber” refers to “commercially marketable trees from which dimensional lumber may be sawed,” Monroe wrote, “and not as all tiny ‘seedlings’ and saplings.’”

Stein also warned that the majority’s decision could affect the regular maintenance of other recreational trails in the Adirondack Park.

That has been a fear for groups like the Adirondack Mountain Club (ADK) and the Nature Conservancy, who wrote court briefs in support of the DEC.

“ADK’s lone concern has always been the uncertainty associated with our collective ability to maintain and build sustainable foot trails,” said Michael Barrett, executive director of ADK, in an emailed statement to Adirondack Explorer. “That concern will remain until we are confident that this decision will not have a deleterious impact on those efforts.”

Protect the Adirondacks doesn’t believe the decision will impact other trail work. Bauer said the court’s decision will likely put an end to plans for hundreds of miles of these Class II community connector trails. He doesn’t see how a hiking trail would require cutting 700 to 1,000 trees per mile that are an inch or more in diameter. If there is such a proposed hiking trail, “then that’s probably not a well-designed trail,” he said.

Dave Gibson, managing partner of Adirondack Wild, also rejects the notion that trails cannot be created or maintained after this decision.

“It is the highly engineered routes for high-speed motorized use, and the thousands of trees that must be cut for such a use that this Court has ruled unconstitutional, not trails that retain the character of a foot trail,” Gibson said in a written statement.

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