Draft designed to guide future trail work and other projects; public invited to comment
By Gwendolyn Craig
In May 2021, the New York State Court of Appeals issued a rare ruling on the state constitution’s language protecting the Adirondack and Catskill forest preserves. It found clearing trees for community connector snowmobile trails was illegal, and if the state Department of Environmental Conservation and Adirondack Park Agency wanted to build them, they would need a constitutional amendment.
The more than decade-long litigation brought by environmental group Protect the Adirondacks put a halt to some trail work and maintenance. Following the 4-2 decision, the DEC organized a Trail Stewardship Working Group composed of local government officials, environmental organizations, recreation and trail building groups and state staff. The result of some of their discussions is a draft DEC commissioner’s policy about work plans on the forest preserve.
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The DEC is seeking public comment on this draft until Feb. 27. Comments may be submitted to Peter Frank, NYSDEC Division of Lands and Forests, 625 Broadway, Albany, NY 12233 or emailed to [email protected]. The full draft can be read here: https://www.dec.ny.gov/regulations/111617.html. Once comments are reviewed, the DEC said it will make necessary revisions before adopting it.
The proposed policy would pertain to about 3 million acres of state-owned land including 2.7 million acres in the Adirondack Park and about 288,000 acres in the Catskills. Those lands are specifically protected by Article 14 of the state constitution, which says they “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 Protect lawsuit involved a broader analysis of the clause and contested the DEC’s definition of a tree. The DEC originally counted trees that were 3 inches in diameter at breast height. In this new proposed policy, DEC will count smaller trees 1 inch in diameter at breast height.
DEC’s draft policy requires written work plans for any new construction, expansions or modifications of existing structures and regular maintenance on forest preserve. Work plans should also consider the “desired conditions” for a project, according to the draft, meaning a description of what the DEC would like the outcome to be for the natural resource and visitor experience.
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Peter Bauer, Protect’s executive director, said the policy “includes a number of important reforms,” but his organization is still seeking restitution from the 2021 court decision. Protect wants the state to close some community connector snowmobile trails, like the Seventh Lake Mountain Trail in the Moose River Plains. The forest preserve work plans “are important, but they do nothing to repair the damage done to the 34 miles of completed and partially built” trails, he wrote on Protect’s website.
In February 2022, Protect brought the state agencies back to court before state Supreme Court Justice Gerald Connolly of Albany County. Connolly asked the parties to settle, but Bauer says they have been unable to do so. He is working to bring the state before Connolly again.
The DEC said it does not comment on pending litigation.
Initial comments from some Trail Stewardship Working Group members are mixed.
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Gerald Delaney, executive director of the Adirondack Park Local Government Review Board, said the policy draft “was a fairly arduous task with competing interests.” He thinks the DEC “did a really good job trying to thread that needle.”
There continues to be disagreements between the working group members, Delaney noted, about what wild forest areas should look like. Wild forest is a state land classification describing areas that see more human use than wilderness, but must retain a “wild character.” Wilderness is the most remote of the land classifications.
“I found it difficult to try to see a path forward because people are looking at it through too many lenses, and they’re competing lenses,” Delaney said.
David Gibson, managing partner of Adirondack Wild: Friends of the Forest Preserve, is also on the Trail Stewardship Working Group. Gibson thought the group should have met again before the DEC released its draft to the public.
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“The foundation isn’t well laid,” Gibson said. He would like to see the DEC include more about the vision for the forest preserve and the history of the Court of Appeals decision, and added “quoting Article 14 is not sufficient.”
Gibson also highlighted the discussion about wilderness and wild forest. He said the work plans seem to omit any difference between wild forest and wilderness, which he thought strange.
Walter Linck, a retired natural resource planner with the Adirondack Park Agency, reviewed the draft policy. He thought overall it was “a good and proper response to the litigation.”
Linck had some concerns about things he considered missing from the policy. For one, there’s no mention about fixing structures or activities not in compliance with the Adirondack Park State Land Master Plan, a document that includes the land classifications and guidelines for park preservation and management. He would also like to see the DEC expand the language in the work plan policy to include all forest preserve work done by volunteers or contractors. The DEC, he said, enters into a number of agreements to complete work on the forest preserve. Linck worried that by only including “administrative personnel,” others could work around the policy.
He would also like the DEC to write more about work plans that involve accessible facilities for people with disabilities.
Jennifer Senf, executive director of the New York State Snowmobile Association, said the association “is reviewing the draft documentation and will be submitting comments.”
The Work Plan Policy document touches on the important elements, but those elements still need to be integrated in a meaningful way. I’ve always been struck by how seamlessly Article XIV and APSLMP (and CPSLMP, etc.) form a unified, coherent whole. The Forest Preserve Work Plan Policy could build organically upon that foundation. Instead, it misses the mark by breaking down Art. XIV and APSLMP into disparate sets of criteria that are weighted against each other.
More trails, more campsites, and more parking lots means more impact to “wild forest character” not because either criterion X (e.g., tree cutting resulting from construction and maintenance) or criterion Y (e.g., erosion resulting from overuse) are affected, but because definitions of wild forest character are inherently coupled with specific limitations on levels of use, just as infrastructure and use are inherently linked. From this, the starting point for any improvement work on Forest Preserve should always be the question “Why is this work needed?”, rather than a description of “desired conditions” followed by a process that seeks to continually establish and rationalize those conditions via “avoidance”, “minimization”, and “mitigation”. Not only does the latter terminology sound oddly self-deprecating, but it is probably unnecessary complicated, too.
The APSLMP is a different set of criteria form Art 14. The Master Plan goes so far as to state that in the very first paragraph:
“Insofar as forest preserve lands protected by the “forever wild” provisions of Article XIV, §l of the Constitution are concerned, the provisions of the master plan are intended to be constitutionally neutral. While obviously no structure, improvement or use held to be unconstitutional is permitted by this Master Plan, no inference as to the constitutional appropriateness or inappropriateness of any given structure, improvement or use should be drawn from whether it is allowed or prohibited in a particular land classification. This master plan is not intended to
make constitutional determinations regarding unresolved issues under Article XIV, which are properly a matter for the Attorney General and ultimately the courts.”
While I can understand the confusion, I think you have it backwards. This passage is explicitly affirming that nothing in APSLMP can override Art. XIV, and thus APSLMP *cannot* define its own, separate set of criteria.
My argument is essentially that if the Work Plan Policy (or any policy for that matter, like an APSLMP amendment) makes the fatal mistake of decoupling APSLMP from Art. XIV, then the courts end up managing Forest Preserve for us (which is ultimately bad for everyone).
I don’t envy the employees that have to come up with these guidelines. It’s basically like trying to define “reasonable” and “common sense”. They mean different things to different people. I just have a couple of thoughts. Somehow you need to keep this simple. You don’t want 100 pages of legaleeze. Trails mainly erode due to water, not foot traffic. In general our trails are poorly designed (or not designed at all), and we should be looking at totally new, intelligently designed trails, rather than always trying to fix up the existing trails. If the forest isn’t too thick, you can build most of it, without cutting trees. The new “gold standard” trails, were they are busting rocks with sledge hammers, is a ridiculous waste of time and money.