ADIRONDACKS — The state Department of Environmental Conservation is considering its options in the wake of an appeals court ruling this week that found its construction of wide snowmobile trails in the Adirondacks violated the state Constitution.
“The New York State Department of Environmental Conservation is reviewing the court’s decision and working to determine the best option going forward,” the environmental agency said in a brief statement issued Friday.
An appeal is likely among the options being considered after a five-member Appellate Division court in Albany ruled against the agency’s snowmobile trail plans.
On Wednesday, the mid-level court, in a 4-1 decision, reversed a lower court and found that construction of 27 miles of Class II snowmobile trails will destroy more timber than allowed under the constitution’s Article 14 — the “forever wild” amendment protecting state forest lands from development.
“This is a great day for the public forever wild forest preserve,” said Peter Bauer, executive director of Protect the Adirondacks, the environmental organization that sued to block the construction. “The Appellate Division, Third Department, decision is a major victory because the court ruled that the level of tree cutting necessary to build a network of road-like trails constituted an unconstitutional destruction of timber on the forest preserve.”
The DEC has been developing plans for major “connector” snowmobile trails between Adirondack communities for a number of years. Protect the Adirondacks first sued in 2013, contending the trails cause significant environmental damage and violate the Constitution. State Supreme Court Judge Gerald W. Connolly held a bench trial in Albany in 2017 and ruled in DEC’s favor, leading to the appeal by Protect the Adirondacks.
The court majority agreed with Connolly that the trails, which can be nine-feet wide or wider, don’t violate Article 14’s “forever wild” provision, but found they violate a separate clause in Article 14, which states “nor shall the timber thereupon be sold, removed or destroyed.”
The court decided there was no basis in the Constitution for DEC’s determination that only trees with diameters of three inches or greater count as timber. On that basis, DEC estimates about 6,100 trees would be destroyed to make way for the trails; if smaller trees also count as timber, the estimated total is about 25,000.
“Although this project did not involve clear-cutting or the removal of a large swarth of trees, but instead necessitated the destruction of narrow corridors of trees for many miles, we need to consider the entire project when we determine its effects,” Judge Robert C. Mulvey wrote the majority.
“The destruction of a substantial number of trees can be problematic whether those trees were together or spread out along one or more portions of the forest preserve,” Mulvey continued.
In a dissent, Judge Michael C. Lynch said he agreed with Connolly the damage wasn’t enough to violate the constitutional protections.
“Considered in context, I agree with Supreme Court’s assessment that the removal of about approximately 25,000 trees — including 6,100 trees having at least a three-inch diameter — over a system of trails covering 27 miles is neither substantial nor material in the context of NY Constitution Article XIV,” Lynch wrote.
The existence of a dissenting opinion as well as the raising of a clear constitutional question increases the chances the Court of Appeals — the state’s highest court — would consider hearing an appeal.
Fred Monroe, a spokesman for the Adirondack Park Agency local government review board, which represents local governments, said he hopes DEC will appeal.
“The review board’s position on that is pretty strong that timber means marketable trees; it shouldn’t mean brush and smaller stuff,” Monroe said. “On behalf of the review board, I would say we’re very unhappy with the decision. If this were to stand without an appeal, it would be very harmful to the winter economy of the Adirondacks.”
Some of the trails in question have already been built, but most have not.