Protect the Adirondacks recently won a major victory in its lawsuit to enforce Article 14, Section 1 of the state Constitution, the well-known forever wild clause. The case challenged the excessive tree cutting undertaken by state agencies to build a vast network of Class II Community Connector snowmobile trails in the Adirondack Forest Preserve.
The case began in 2013 and this result has been six years in the making. Previously, the Appellate Division, Third Department, of the state Supreme Court had issued a preliminary injunction against this tree cutting in 2016 after the Department of Environmental Conservation (DEC) and Adirondack Park Agency (APA) had constructed or roughed out over 20 miles of new trails.
A trial was held in 2017, in the Supreme Court (New York’s trial-level state court) in Albany, and the trial judge issued his ruling dismissing PROTECT’s complaint and upholding the State’s position in December 2017. PROTECT appealed that decision in 2018. A 4-1 ruling in favor of PROTECT that reversed the Supreme Court decision was issued by the Appellate Division on July 3, 2019.
The Appellate Division’s landmark decision did two things. First, it affirmed past legal precedents from the 1930s and 1990s about the limits on tree cutting allowable on the Forest Preserve to facilitate public recreational use. In doing so, the court ruled that the cutting by DEC and APA of over 25,000 trees on 34 miles of Class II community connector snowmobile trails violated Article 14. Second, the court ruled that the terrain alterations and construction methods using heavy machinery to build the Class II trails did not violate Article 14. The State has published a plan to cut hundreds of miles of similar trails in the Forest Preserve. This decision, if it is upheld on appeal, should prevent that planned destruction of the Forest Preserve from occurring.
Supporters of the State’s building of the Class II trails have criticized this ruling, but there are many flaws with their criticism. Much of this criticism is aimed at the court’s decision that small trees under 3” DBH (diameter at breast height) are protected as “timber” under Article 14. These critics seem to believe that if these small trees had not been taken into account by the Appellate Division, the court might have ruled in favor of the State and its Class II trails. Given that an unprecedented 6,900+ large trees of 3” DBH or more were being destroyed for just the first 34 miles of these trails, there can be no doubt that this trail system was unconstitutional under the existing legal precedents. The consideration of over 18,000 smaller trees by the court merely bolstered this evidence. Even though DEC has ignored these small diameter trees for decades, the historical record shows that the framers of Article 14 fully intended that it would apply to all trees, of all sizes.
The heart of Article 14, Section 1 reads: “The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They 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.” This wording has not changed since its adoption by the Constitutional Convention of 1894.
Since its passage at the 1894 Constitutional Convention and subsequent approval by the voters, the meaning of the word “timber” in this section has been debated. The Appellate Division’s decision confirms that “timber”, as it pertains to the Forest Preserve, protects the forest as a whole, and trees of all sizes, and not just large merchantable trees.
The July 2019 decision focused on two central points, among several that were contested during the 2017 trial: (1) that the level of tree cutting by the State to build the Class II trails exceeded the level of tree cutting proposed in other State actions that were contested in court in prior Article 14 decisions — the 1930 Association for the Protection of the Adirondacks v MacDonald decision and the 1993 Balsam Lake Anglers Club v DEC decision; and (2) that the framers of the Constitution’s “forever wild” clause did not limit protections against substantial tree cutting to only large, merchantable “timber”; that the use of the word “timber” in its historic context included all trees regardless of size; and that small diameter trees, which can often be over 75 years old or older, are ecologically important to the functioning of the forest ecosystem and must be considered in State management decisions.
The court stated:
We agree with Supreme Court’s determination, based on the expert historian’s testimony as well as other evidence, that the 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. Although tree size and maturity may be considered in determining whether a proposed project’s tree cutting is substantial or material, plaintiff presented expert testimony debunking the assumption that smaller trees are necessarily young or immature; some forest trees measuring less than three inches DBH can be more than 100 years old, and smaller mature trees play an important role in the continuing ecology of the forest. The court generally accepted the tree counts proffered by plaintiff, including for trees less than three inches DBH. Accepting those factual findings, approximately 25,000 trees either had been or would be cut to construct the trails.
Today, the word “timber” is often associated, though far from uniformly, with large diameter trees that have commercial value as saw timber, among other purposes. Even today, though, the meaning of the word timber has varied meanings among foresters. On WAMC public radio, Fred Monroe, a local government leader in the Adirondacks, said that Class II trails “can be judged to be unconstitutional if you count things that are really not timber as timber.” This view of the term ignores its historical meaning, as of the time when Article 14 was adopted.
To find the meaning of the word “timber” as it pertains to Article 14, Section 1, it’s important to consult the historical record. In the 2017 trial, and as referenced by the Appellate Division decision, Protect the Adirondacks provided expert testimony by the Adirondack Park’s leading historian, Dr. Philip Terrie, the author of a number of Adirondack histories, about the meaning of the word “timber” in the late 19th century. The court trial transcripts can be read here.
Dr. Terrie cited the 1892 Webster’s International Dictionary of the English Languagefor the definition of the word “timber” at the time that Article 14 was adopted. There were six definitions, one of which was “Woods or forests, wooded lands.” Others included gluing many boards together to make a large beam. Terrie also cited a passage from Joel T. Headley’s The Adirondack: Or, Life in the Woods(1849), a popular 19th century publication, in which Headley used the word “timber” to mean the thick understory of the forest.
Additional evidence from the historic record included a passage from Verplanck Colvin’s Report on the Progress of the State Land Survey, 1893. Colvin recounted a report about planned logging on the summit of Mount Seward above Ampersand Lake, a remote region of the Adirondacks that Colvin found to be special. While he voiced regret about the proposed logging, of more interest is how he used the word “timber”:
The agent informed me that not only was the timber in the valley to be cut and removed but shoots were to be constructed far up toward the summit of the High Peaks so that not only logs fit for lumber could be sent down to the skidways but even the small soft wood spruce timber would be thoroughly cut for pulpwood as the company did not consider it desirable to keep and pay taxes upon these high upland where the trees are very slow growth.
Colvin’s use of the phrase “small soft wood spruce timber” was instructive. To Colvin, the word “timber” meant any tree that the loggers were planning to cut, big or small.
The best original source about the meaning of the word “timber” in Article 14 (then Article 7, Section 7) is the transcript of the 1894 Constitutional Convention’s debates over its adoption. (Click here to read the debate transcript.) Reading this shows that the framers of Article 14 used “trees” and “timber” interchangeably. It’s difficult to see in the language of the framers throughout the debate about adoption of Article 14 a use of the word “timber” that is limited to a commercial sense, meaning only large, merchantable trees, rather than as a word that meant the whole forest of standing trees, consistent with the dictionary definition of their time, or that the framers envisioned that the new Constitution would provide protection for some trees, but for not others.
The debate on the forever wild provision in the state Constitution started on September 7, 1894 and ran over to Saturday morning, September 8th. At the debate on Saturday morning, David McClure, the father of the forever wild clause, opened by stating:
“The hills, rock-ribbed and ancient as the sun — the venerable woods — rivers that moved in majesty — and the complaining brooks that make the meadows green,” these for years had been neglected by the people of the State and the great men of our State, the men of public spirit generally, had forgotten that it was necessary for the life, the health, the safety, and the comfort not to speak of the luxury of the people of this State, that our forests should be preserved. (Applause) (Page 128)
McClure then asked “What are these forestlands, Mr. Chairman?” He recounted the acreage of state-owned lands and then read passages from a statement by Assemblyman George W. Smith of Herkimer, and from State Surveyor Verplanck Colvin’s report about the importance of forests for preserving water. McClure then started to make his case for forever wild by asking “What is the value of these woods and why should we try to preserve them intact?” After talking about the failure of agriculture in the Adirondacks, he answered his question by stating that the Forest Preserve should be “a great resort for the people of this state.” (Page 131) Note that the architect of Article 14 did not talk about the board feet or commercial value of the “timber” on the Forest Preserve.
McClure also made the economic argument that Adirondack forests must be protected in order to protect the headwaters of the Hudson River. He said “We will one day need the water stored in the Adirondacks to drink in the city of New York.” McClure quoted the famed 19th century Adirondack travel writer, Rev. W.H.H. Murray, that the Adirondack forests are, quite literally, a gift from God. (Page 133)
McClure then talked about the destruction of forests around the world, which contributed to the falls of great empires in the Middle East and Europe. He talked about massive reforestation programs in Germany and France. His speech came back to the U.S. and talked about the negative effects on the Ohio and Connecticut Rivers from deforestation in their watersheds. He then asked rhetorically why Yellowstone was being protected, but New York’s forests are not? McClure then cited recent actions by the State to protect New York’s forests, which saw his first mention of the word “timber”: “Governor Flower, by repeated, not only annual, but special messages, has called the attention of the Legislature to the necessity not only of saving the forests themselves by protection and the non-sale of lands, but to the necessity of preserving even the timber upon the lands for the protection of the interests of the State. They were only doing what has been done in the old days.” (Page 137) In this passage McClure is talking about the need to stop commercial harvesting of trees on the Forest Preserve. His use of the word “timber” meant all of the trees in the forest.
McClure then made the case that though New York had no debts it had failed to invest in foresters and the protection of state forests, repeatedly using “forests,” “woods,” and “timber” interchangeably. McClure continued by making the argument that no lands of the Forest Preserve should be sold and that no trees should be sold. He stated “First of all, we should not permit the sale of one acre of land. We should keep all we have. We should not exchange our lands — in an exchange the State is in danger of obtaining most of the taxing — and there is no necessity why we should part with any of our land. We should not sell a tree or a branch of one.” McClure was talking about stopping the practice by the State of selling Forest Preserve lands, something that was still being done after the Forest Preserve was formed in 1885. But it’s his language here in talking about stopping logging that is most important. To make his case he did not talk about large merchantable trees, but said “We should not sell a tree or a branch of one.” (Page 139) Given McClure’s language, it’s hard to see the logic in modern-day arguments that preservation of the commercial value of the large diameter “timber” on the Forest Preserve is all that Article 14 is concerned with.
It is instructive to see McClure’s use of language when he started to talk about actual logging of the forest in the next part of his speech.
Some people may think in the wisdom of their scientific investigations that you can make the forests better by thinning out and selling to lumbermen some of the trees, regardless of the devastation, the burnings and the stealings that follow in the lumberman’s track. But I say to you, gentlemen, no man has yet found it possible to improve upon the ways of nature. In the primeval forest when the tree falls it is practically dead, and when it falls it is a protection to the other trees; it takes in the moisture through its bark, and rottenness, and diffuses it down and into the soil. I do not like the notion of the lumbermen cutting the woods and taking out the best trees and destroying, with every tree he takes, fifty in addition. (Page 139)
Why is it that when McClure talks about logging and selling lumber, he does not use the word “timber”? Why is it that when McClure talked about “the lumberman cutting the woods” and “the best trees”, he did not use the word timber? Note that McClure even argued about the importance of dead trees, as “protection to the other trees,” something unlikely if he envisioned that the new forever wild amendment protected only large merchantable trees.
McClure then talked about the importance of the State buying up more lands to expand the Forest Preserve: “We can buy these lands for a trifle. Many of the clubs owning large tracts are willing to put them into the forest preserves so far as preserving the lands as wild lands. Mr. Chairman, our lands should not be sold or exchanged; our timber should not be sold.” (Page 140) McClure was not talking only about large merchantable trees when he used the word “timber.” He was talking about the all the trees in the forest, which if left alone and not cut, make a wild land.
At that point, delegate William Goodelle from Syracuse rose to offer his famous amendment to add the words “or destroyed” to the forever wild clause, so that the final sentence in Article 14, Section 1, would read “nor shall the timber thereon be sold, removed or destroyed.” Goodelle then took the floor in support of his amendment, stating: “I would not only prevent this State from selling, but I would prevent it from destroying the timber within this preserve. I would not only do that, but I would inhibit them from the purposes of the destruction of our forests.” Goodelle mixed together the words “logs,” “lumber,” “timber,” “trees” and “forests” to make his case.
In his most impassioned section, Goodelle stated:
Within several years past a dam has been put across that river [Beaver River at the Stillwater Reservoir] at a point above number four, and the result is that the water has been set back upon thousands and thousands of acres of the forest of those mountains, the spruce, the pine, the balsam. The result is that they stand there to-day by thousands and thousands of acres, a ruined scene to look upon. The trees have all died; the beautiful river is wiped out and is gone, and we have there a vast pond or a vast sea, with those dead trees standing upright in the water. (Page 142)
Though Goodelle successfully amended the forever wild provision so that the “timber” on the Forest Preserve was not to be “destroyed,” his purpose was clearly to strengthen protections of all types of forests and trees on the Forest Preserve. Nowhere in Goodelle’s arguments is there a case to be made that he was talking about protecting only large merchantable trees. Rather, he was trying to protect all of the trees in the forest.
Goodelle was followed by Charles Mereness of Lowville, who recounted his camping trips in the Adirondacks:
I have traversed this great forest in true aboriginal style, with my boatman and skiff, and a pack on my back from Long Lake and Blue Mountain on the southeast to Paul Smith’s on Lake St. Regis on the north; from the Fulton chain on the southwest to the lower Saranac on the north, and have visited a large number of the beautiful lakes and ponds in that region, of which there are not less than one thousand. I have stood on the highest mountain peaks and admired the beauty of the green leafage stretching out as far as the eye could reach, and where none of the ravages of man were discernible, and have frequented the places inhabited for centuries, and until recently by the denizens of the forest; where the deer, the moose, the black bear, the beaver and many smaller animals flourished, notwithstanding the presence of panthers and wolves. The moose and the beaver are gone, never to return, I fear, and I suppose the brutal instincts of man will not be satisfied until the last deer is shot, and the last speckled beauty caught.
The screech of the locomotive, introduced to that lovely section, by Doctor Webb and others, can now be heard, and the time is fast approaching when the whole region will be made desolate and barren, unless the hand of the despoiler is stayed. We have already waited too long, but I implore you, do not longer hesitate to take measures to stop this outrage. (Page 147)
Mereness ended his statement by exhorting the convention: “Let us recommend to the people that they put into the organic law the declaration that our forest preserve and the timber thereon shall be inviolate forever.” (Page 148) The language Mereness used was not technical language of the word timber meaning commercial values and estimates of board feet, but rather it was a good example of the use of the word “timber” in that time – as a noun that meant all the trees in a forest, all the wooded lands.
There followed a discussion about the scope of the Forest Preserve and its overall size, until Delegate Thomas McArthur of Glens Falls rose to speak. He talked about the forests of the Adirondacks and Catskills as a “vast sponge.” (Page 152) Delegate Chester B. McLaughlin of Port Henry followed and spoke of his observations about Adirondack forests after regularly visiting the area for the past 10 years. McLaughlin urged rejection of all changes to the forever wild amendment except for Goodelle’s addition of these words “or destroyed.” McLaughlin said “In every section of it you will see some parts of this immense forest destroyed. The moment you put in any provision that anybody can cut timber there, then you destroy the effect of the whole amendment.” (Page 153) Those words spoken on that Saturday morning in 1894 by Port Henry’s C.B McLaughlin, a son of the Adirondacks, were quoted 125 years later in the July 2019 Appellate Division decision.
The debate then shifted to a discussion about taxation before order was restored. At this time, McClure refocused the debate to restate the amendment, as it is known today. He wound up his speech with these relevant comments:
I say, sir, that it is necessary that something be done; I say, sir, it is necessary to close the door unless you want this great water supply, this great sanitarium, this great health resort of our State that is known from ocean to ocean, and from land to land, destroyed, that you must shut the door, and you must close it tight, and close it right away; and not only that, you must keep it closed for twenty years. (Page 156)
Here, McClure talked against tree cutting of any kind by imploring the convention to “shut the door.” He closed his speech with these statements:
This is not an individual matter with me, sir, I am not interested to the extent of one dollar in the forest lands of this State, but when I see the great number of pleasure seekers, the great number of invalids that annually visit that territory, not only in summer, but also in winter, it appears to me that we here, now and to-day, should do something to protect that great and- magnificent forest from further spoilation. In and out of the forest preserve, every dollar’s worth of land that is now owned by the State of New York should be enjoyed by the people of the State of New York, should be as free as air, as free as the God-given sunlight of heaven.
Again, sir, more should be done, which is not proposed by this amendment. More should be done, in that the State should own all the lands within this great forest preserve. It should be so, sir, that the poor man as well as the rich man might enjoy its benefits. It should be so that no great corporation, no wealthy individual, or association of individuals, should be able to select out the choicest, most beautiful spots of this domain, and set up in front of them a forbiddance, a sign of “no trespassing.” I say, sir, it is our duty to the people whom we represent — and I thank God there is no politics in this — to give a sufficient, a proper and adequate protection, so that when the foresters tell us that within twenty years a forest will recuperate, within the time in which another Constitutional Convention will assemble within the walls of this magnificent pile, we shall have a forest domain that will be of some satisfaction, that will be a credit, as this great building is a credit, to the great, and magnificent Empire, the State of New York. (Applause) (Page 156)
There followed more procedural discussion before the question was called. The amendment, which has come be Article 14, Section 1, was passed unanimously by the convention delegates. The language used in this debate by McClure, the key architect of Article 14 – “great and- magnificent forest” and “the God-given sunlight of heaven” – show us that the framers in 1894 employed inspired rhetoric and were not using the word timber in a commercial sense, but as a noun commonly used in the late 19th century to describe standing trees of all kinds in the forest.
The new state Constitution was approved in November 1894 and forever wild took effect in 1895. Since then, the forever wild public Forest Preserve has been a fact of life, often celebrated as one of New York’s great accomplishments. The meaning of Article 14 has been debated through the generations and is being debated today. It’s clear from the historic record that the framers of Article 14 did not use the word “timber” in the commercial lumbering sense in which it is sometimes used today, but as a word describing all trees in the forest. The State’s arguments in the recent trial, and the arguments of its apologists in the Adirondacks, are merely modern semantics, which have no basis in the original intent of the framers of Article 14. The framers of Article 14 envisioned in their debate in September 1894 that all trees in the Forest Preserve were meant to be protected, not just some of them, and not just the large trees.