Court hears tree-cutting case
Decision will be made soon on what is constitutionally protected in forest preserve
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 not necessarily 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.”
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.
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.
Judge Leslie Stein asked John Caffry, the attorney representing Protect the Adirondacks, 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.