- Julianna Brazill
How much must a tree grow before it counts as timber? According to a New York State appellate court, not much at all. That answer could have a profound effect on the future of the Adirondack Park.
In a decision handed down July 3, the court ruled that construction of a 27-mile snowmobile trail — specifically, the felling of 25,000 trees to make way for it — would violate state constitutional protections of "forever wild" forestland.
In the short term, the ruling imperils the state's plan to build a network of nine- to 12-foot-wide "community connector" snowmobile trails, which Gov. Andrew Cuomo's administration believes would help revitalize the Adirondacks' winter economy. In the long term, experts say, it clarifies how much tree cutting is too much on the 2.5 million acres of state-owned land within the 6 million-acre park.
"I think the decision's going to be studied and used and cited for a long time," said Nicholas Robinson, an environmental professor at Pace University's Elisabeth Haub School of Law in White Plains, N.Y. "It's a very important decision."
In 1894, after a decade of illegal logging within the newly created Adirondack Park, delegates to a state constitutional convention sought to further protect the land recently designated "forever wild." That land, they wrote in an amendment that took effect the next year, "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 delegates did not define timber, but the state Department of Environmental Conservation, which oversees the forest preserve, has taken it to mean mature trees — or those at least three inches in diameter at four and a half feet above the ground.
Peter Bauer, executive director of the environmental group Protect the Adirondacks!, disagrees. In his view, the delegates intended to protect all of the park's trees, whatever the size. "The framers of 'forever wild' were using trees and timber interchangeably," he said last week.
In 2013, the DEC began to cut a new snowmobile trail linking the Adirondack towns of Newcomb, Minerva and North Hudson. Under the state's definition of a tree, the project would require the destruction of just 6,184 specimens over the course of 27 miles. But when Bauer's group counted and photographed stumps along the flagged and partially cut trail, it came up with more than 25,000 trees of every shape and size.
Protect the Adirondacks! sued and obtained an injunction to halt the project temporarily. In December 2017, a state district court ruled against the group's two claims: that such trails violated the "forever wild" clause of the constitution and that the necessary harvesting would destroy a "substantial" and "material" amount of timber — a threshold set by earlier decisions.
Bauer's group appealed to an intermediate court, which handed down this month's decision. On the first claim, all five justices agreed with the lower court that the trail itself would not violate the constitution. The snowmobile corridor was more similar to a hiking path than a road, Justice Robert Mulvey wrote, and was unlikely to alter the forest ecosystem.
But by a 4-1 majority, the appellate court reversed the lower court's decision on the second claim. "[T]he use of the word 'timber' in the constitutional provision at issue is not limited to marketable logs or wood products, but refers to all trees, regardless of size," Mulvey wrote. He noted that some trees more than 100 years old could still be less than three inches in diameter — and that "smaller mature trees play an important role in the continuing ecology of the forest."
Though the state was not proposing to clear-cut one compact area, the felling of trees over such a long distance could have the same practical effect, the court found. "It would be anomalous to conclude that destroying 925 trees per mile of trails, or approximately 25,000 trees in total, does not constitute the destruction of timber 'to a substantial' or 'to any material degree,'" Mulvey wrote, again invoking past precedent. In short, the state had to lay down its ax.
"We feel vindicated," Bauer said.
Others, however, felt surprised, disappointed and betrayed.
"I think everyone, including me, thought, This isn't going anywhere. It's gonna lose," said Adirondack Park Local Government Review Board spokesperson Fred Monroe, whose organization represents municipalities. "They're never going to say all these tiny wooden stems, seedlings, saplings, brush are timber."
According to Monroe, the proposed snowmobile trails were a critical part of a recent deal that added 69,000 acres to the state-owned forest preserve. Newcomb, Minerva, North Hudson and other towns in the area of the land deal acquiesced to it in exchange for promises of new economic generators, such as mountain bike and snowmobile trails, he said.
"We all planned on this trail system," said Brian Wells, town supervisor for neighboring Indian Lake. "It was going to be huge."
Like many Adirondack businesses, Indian Lake Restaurant and Tavern brings in most of its revenue during the brief summer tourism season, according to co-owner Ann Miller. "But in the wintertime, we stay open for snowmobiles," she said.
According to a 2011 survey commissioned by the New York State Snowmobile Association and administered by the State University of New York's Potsdam Institute for Applied Research, snowmobiling already generated $245 million in economic activity within the park at the time. About a quarter of the state's snowmobiling took place in the Adirondacks, the survey found.
Miller had hoped the proposed community connector trails would boost that business by making it easier for snowmobilers to crisscross the park. She said she's frustrated any time new rules and regulations limit economic development opportunities within the Adirondacks.
"It's not an amusement park," she said. "People live here. They have jobs."
According to Dominic Jacangelo, executive director of the state snowmobile association, his members have sacrificed plenty already. They've agreed to narrower trails, he said, and to abandon corridors in the interior of the forest in exchange for community connectors on the periphery.
"We're kind of stuck in a holding pattern," he said. "It's very frustrating, I think, for the snowmobiling community, and I think it's frustrating, also, for the municipalities."
Jacangelo hopes the state will appeal the recent ruling to the state's highest court. According to DEC spokesperson Ben DeLaMater, the state "is reviewing the court's decision and working to determine the best option going forward."
Proponents of the snowmobile trails have suggested that the recent ruling could affect other recreational activities, as well. "If you count seedlings, do you have to consider what hikers destroy?" Jacangelo asked.
"You're not going to be allowed to cut anything or trim anything back," said Wells, the Indian Lake supervisor. "In my opinion, if you're going to go by the ruling, there's no reroutes, no new trails, no new parking areas."
Others, including Adirondack Mountain Club executive director Neil Woodworth, believe such fears are overblown. "When you're laying out a hiking trail, the reality is that you have to take down very few trees," he said. "Normally, cross-country ski trails are laid out in a very similar fashion to hiking trails."
According to Bauer of Protect the Adirondacks!, the decision could limit the construction of ski trails on scrubby mountain summits. "But we shouldn't be cutting big, wide trails through high-elevation old-growth forest anyway," he said. "We don't see how this is going to interfere with other recreational opportunities."
Though some were taken aback by the ruling, they shouldn't have been, said Robinson, the Pace University professor. "I think it's surprising to the people who don't read the cases," he said.
New York's constitution is "quite clear," he added. "The forest preserve is to be kept as 'forever wild' forest land."