Unique among other states in protecting forest land under the state constitution, New York must now reconcile an 1894 pledge to keep the Adirondacks “forever wild” with new plans for snowmobile access.
(CN) — New York’s highest court gave a frosty reception Tuesday to a state plan that would entail felling thousands of trees in Adirondack Park to make way for 11 new snowmobile routes totaling 27 miles.
“It’s a death by a thousand cuts,” said Associate Judge Eugene M. Fahey as the Court of Appeals held oral arguments this afternoon, noting that that the challenge comes at a time while many “forests in North America are burning to the ground.”
“That simply is contrary to everything we see around us today,” the Cuomo appointee balked.
Spanning more than 6 million acres, Adirondack Park is the single largest protected region in the lower 48 states and substantially larger than most national parks. The land is kept pristine by unique protections. New York is the only state to protect a forest preserve under its state constitution, enacting language in the late 1800s known as the “forever wild” provision, which bans logging and mandates land preservation for future generations.
As the state interprets “timber” language in the 1894 Constitutional Convention, though, protection is afforded only to trees larger than 3 inches in diameter at breast height, or DBH, a standard tree size metric. By this count, the Department of Environmental Conservation would be cutting down 6,100 trees to make way for 11 new multi-use routes, built using parameters to accommodate snowmobiles.
The figure ratchets up to around 25,000 trees, however, if all felled trees are counted. This is the number that an intermediate appeals panel used two years ago when it ruled the plan is unconstitutional.
Pushing for a reversal Tuesday, the state’s attorney Jennifer L. Clark argued that historical context is important when interpreting the state constitution. Delegates “chose the word timber for a reason,” Clark said.
New York insists that any impact from snowmobile routes on the forest would be minimal, but Fahey called an argument to define “timber” esoteric. He noted that whether the count is 6,100 or 25,000 trees, “we’re still talking about a significant reduction in the overall number of trees in the Adirondacks.”
“This is to protect the only truly wild forest in the United States,” Fahey said.
If the paths are built, he continued, “a thousand minimal impacts” could eventually add up to greater, longer-lasting damage.
Fahey cited the 1930 decision in the matter Association for Protection of Adirondacks v. MacDonald, stopping the construction of a bobsled run on protected land in advance of the 1932 Winter Olympics in Lake Placid.
“If the People desire to use their great park for such recreation a constitutional amendment is necessary,” that decision states, ruling the authorization of the bobsled run “unconstitutional and void.”
Judge Fahey said on Tuesday that the precedent under that ruling seems to apply, and that he was having a “hard time seeing a difference here” regarding snowmobile routes.
Other judges pressed Clark on why the trails had to be created to accommodate snowmobiles, referring to them as mechanized vehicles, instead of just hikers.
Clark said the specifications to allow snowmobiles are not substantially different from those required for hiking and horseback riding, and would allow people with disabilities to have greater trail access.
Responding to the idea that building the trails is about “access,” Associate Judge Jenny Rivera asked, “access to what?”
“It’s a circular point, to me, to say ‘access,'” Rivera continued, if it expanding snowmobile trails diminishes the quality of land ensured by the “forever wild” constitutional provision.
Though some environmental groups support the state, the Sierra Club and several Adirondack-based groups have sided with its challengers at Protect the Adirondacks.
“The Department is doubtless furthering and fostering an interest in nature by seeking to allow people to recreate in the Adirondacks,” the Sierra Club wrote in an amicus brief, “but the importance of limited interests furthered by removing the timber cannot alter the interpretation of the constitutional provision.”
Peter Bauer, executive director for Protect the Adirondacks, said in an email that he is confident about his organization’s chances of winning its long-running suit.
“After eight years, injunctions against tree cutting, tons of field work, a trial, and trips to the Appellate Division and the New York Court of Appeals we believe that our lawsuit to defend and uphold forever wild not only has history on its side, but we have the facts, science, and case law too,” Bauer wrote.
Rather than letting government agencies decide, Bauer said major changes to the “forever wild” clause should be made “only by the people in a public vote.”
Among groups that have sided with the state, the Nature Conservancy told Courthouse News that there has been too much focus on the number of trees being cut, which opens doors for future narrow views of environmental impact.
“The Nature Conservancy’s position is that given the facts of this case, taking into account the actual impact on the Forest Preserve of the timber removal required for these trails as proposed, as well as the public access benefits of the community connections, the trails are constitutionally proper,” the organization said in an email. “Supporting the state in this case is the right thing to do.”
The New York Department of Environmental Conservation declined to give a public statement.