Top N.Y. court hears timber case

Trees on the Newcomb to Minerva Trail were marked for cutting but were saved by an injunction. Photo courtesy of Peter Bauer

The highest court in New York heard arguments on Wednesday for a case that could redefine what “timber” means in state law, and change what size trees can be cut on state Forest Preserve land.

Lawyers for the Protect the Adirondacks environmental group and state Department of Environmental Conservation were arguing an eight-year lawsuit brought by the former against the latter, which led to a DEC tree-cutting moratorium, halting construction on snowmobile trails and other trails around the Adirondack Park.

At the heart of the issue is whether the DEC’s cutting of trees under 3 inches in diameter is allowed or banned by the state constitution.

Protect the Adirondacks says it is banned, citing the “destruction of timber” portion of the “forever wild” clause of the state constitution. The DEC says it is allowed, contending that trees smaller than 3 inches are not timber.

There is debate over what timber means. Article 14 of the state constitution does not clearly define timber, and the word has taken on different meanings over time.

The distinction of what counts as a legally cuttable tree makes a difference if the plan would involve cutting 6,100 trees or 25,000 trees, in the eyes of the state.

Though much of the talk Wednesday was grounded in case law, evidence and the state constitution, the debate of what words like “timber,” “wild” and “access” mean made it a philosophical, abstract discussion at times.

Justices seemed focused on protecting the wild nature of the preserve in their questioning and statements.

“The forests in North America are burning to the ground, and this proposal would affect the overstory that protects the only truly wild forest in the eastern United States,” Justice Eugene Fahey said.

Representing the DEC and the state Adirondack Park Agency through the state Attorney General’s office was Assistant Solicitor General Jennifer Clark.

Clark asked the appellate court to come to a different conclusion than previous courts.

“The Third Department (of the New York Supreme Court) erred when it deemed those trails unconstitutional, solely based on the amount of timber cut to build them,” she said.

Representing Protect the Adirondacks was John Caffry, an attorney from Glens Falls. He argued that the cutting of trees in this project would be substantial, on the level of other projects that have required constitutional amendments to Article 14.

“If it’s deemed desirable by the people of the state they can get an amendment,” Caffry said.

Protect the Adirondacks initially filed the lawsuit in 2013 to halt construction on 11 new Class II snowmobile “community connector” trails around the park, some of which would be on Forest Preserve land.

The project would create 27 miles of Class II trails — generally 9 feet wide and 12 feet wide on curves and slopes.

Protect the Adirondacks Executive Director Peter Bauer estimates that one mile of Class II trail equals 1 acre of land.

Protect’s lawsuit stopped the final 6 or 7 miles of connector trail from being cut, and stopped cutting on other Class II trails before they began.

This lawsuit was initially dismissed by the state Supreme Court, siding with the DEC. The court found the trails would not impair the wild or illegally destroy timber. But in 2019 the Third Judicial Department of the Supreme Court Appellate Division reversed that decision in favor of Protect the Adirondacks, finding that cutting would illegally destroy timber.

Bauer called this a “split decision.”

The DEC is now appealing that decision before the state Court of Appeals, where lawyers for both parties were on Wednesday.

This lawsuit has led the DEC and other trail organizations to halt trail cutting on unrelated projects in the Forest Preserve, too. They are waiting for a final decision by the court to dictate what tree cutting is allowed.

Bauer said the Court of Appeals usually issues decisions within 60 days of hearing arguments, so he anticipates a ruling soon.

This lawsuit has been controversial even among green groups.

The Adirondack Mountain Club, Nature Conservancy and Open Space Institute support the DEC, citing concern that a decision blocking cutting on these snowmobile trails could be extended to blocking cutting done for hiking trail maintenance.

The Sierra Club, Adirondack Council and Adirondack Wild support Protect the Adirondacks.

“Since the appellate decision, the state has ceased construction on trails of any kind,” Clark told justices.

She said this includes foot trails, hiking trails and projects to build water lines.

Caffry said the state still does trail work, contending that it is not true that work in the forest has ended because of the lawsuit.

He said if the court upholds Protect the Adirondacks’ position, it would not impede regular trail work.

“We do not believe that anything … in this case will prevent the state from providing reasonable access to the Forest Preserve,” Caffry said. “They can create the hiking trails, they can maintain the trails they have.”

Currently, the DEC is defining “timber” as any tree 3 inches in diameter and 4.5 feet tall. Protect the Adirondacks says that smaller trees are also counted under the state constitution.

Bauer said this is not a set-in-stone rule and he hopes the state implements a new, clearer policy. He said thin trees can still be old trees.

Clark said the definition of “timber” is a matter of constitutional interpretation, adding that state courts are the ones to set a definition.

Fahey said the argument over the language and the technical count of how many trees would be cut in this case is too focused on the letter of the law, adding that the spirit of the law is to protect the wild nature of the preserve.

“Much of the argument, once we move beyond whether trees equal timber or timber equals trees — which seems to me an esoteric argument that misses the underlying point — is that the purpose of the constitutional amendment was to preserve as much as possible the forever wild nature of the Adirondacks preserve,” Fahey said.

Fahey said the DEC’s point is “rational but not constitutional.”

Clark said the DEC trails would not disturb the forest canopy.

“I don’t believe the record supports that,” Fahey said.

He said though the canopy would be impacted minimally, those minimal impacts add up, describing it as “death by 1,000 cuts.”

Clark said experts have found that the canopy would remain intact.

Clark argued that the goal of the forever wild clause is twofold: to preserve the wild, so future generations can enjoy it.

Caffry argued that the state should preserve the land for use by people only if that does not result in destruction of material amount of trees, which he said it would in this case.

Justice Rowan Wilson said Clark was dividing up the sentence, putting more emphasis on the second part. Clark said the language is supposed to be “collaborative” and the statements should be “read in light of each other.”

Justices questioned if these trails would truly open access, saying Class II trails are primarily used for snowmobiles.

Justice Michael Garcia asked why there shouldn’t be a constitutional amendment for these trails, like there have been for roads or ski slopes.

Clark said evidence in the case showed that the environmental impact of Class II trails is closer to that of a hiking trail than that of a road.

“This is a trail for a mechanized vehicle,” Garcia said. “To me that looks more like a road than a ski trail.

“There’s no other use for a 9-foot (wide) trail,” Fahey said.

Justice Jenny Riviera said the width of the trail is specifically built for machines, especially around curves.

Clark said that misses the point that the forest canopy would remain intact.

“What’s the point of the mechanical … route?” Riviera said. “The access that you’ve provided is for a very limited number of the population.”

Clark said these are multi-use, multi-season trails and that the state Land Master Plan says the trails “may double as a foot trail at other times of the year.”

Justice Leslie Stein asked if the snowmobile trails would provide access to people who might not be able to access the forest in any other way.

Clark said not everyone can hike along trails, so snowmobile trails would increase access.

The full Court of Appeals session can be viewed at https://bit.ly/3rnIZQX.

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