A recap of the trial over the future of Article XIV, Section 1, the forever wild provision in the NYS Constitution

The trial on the future of “forever wild” in Protect the Adirondacks v NYS Department of Environmental Conservation and Adirondack Park Agency wrapped up on April 4, 2017 in State Supreme Court in Albany County. The trial ran for 13 days, spread over five weeks, with Justice Gerald Connolly presiding. John Caffry of Caffry & Flower in Glens Falls, Claudia Braymer of Braymer Law, PLLC in Glens Falls, and William Demarest of Tooher & Barone in Albany represented the plaintiff Protect the Adirondacks. Loretta Simon and Meredith Lee-Clark, of the NYS Office of the Attorney General, represented the defendants Department of Environmental Conservation (DEC) and Adirondack Park Agency (APA).

A section of the Seventh Lake Mountain Trail there years after construction. A forest has been turned into a grass field.

Full transcripts from the trial are provided below.

At issue was Article 14, Section 1 of the State Constitution, the forever wild clause, which states that:

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.

Despite the clear command of the Constitution, with APA’s approval, DEC has already constructed over 32 miles of new class II community connector snowmobile trails in the Forest Preserve, resulting in the clearing of dozens of acres of land and the destruction of over 24,100 trees. Dozens, and perhaps hundreds, more miles of such trails are being planned.

In its January 2017 decision to send this matter to trial, the Supreme Court repeatedly referenced the recent Court of Appeals decision in the Friends of Thayer Lake v. Brown case, which involves public navigation rights in the Adirondacks. That decision reversed lower court rulings on motions for summary judgment, and sent the case back to the Supreme Court for a trial to develop a more complete record. Similarly, the purpose of the trial on the current Article 14 lawsuit was to develop a complete factual record where there are material matters in dispute, including what constitutes a tree, the historic interpretation of what “timber” means in the Constitution, the purported ecological benefits of closing interior trails to snowmobiles as an offset to the construction of new trails, whether such trails actually were closed by DEC, and whether the construction of class II snowmobile trails constitutes an improper use of the Forest Preserve due to dramatic changes in the terrain and other ecological impacts.

The focus of the trial was two-pronged: 1) issues involving the meaning of “timber” in Article 14, Section 1, and what constitutes a tree; and 2) the impacts on the Forest Preserve from construction of a network of large 9-12 foot wide “class II community connector snowmobile trails” due to extensive terrain and habitat alteration. The trial covered only the trails previously approved, and under construction. The outcome of the case is likely to determine the fate of dozens or hundreds of miles of additional trails that the State intends to build, and the fate of the entire Forest Preserve.

The four primary class II community connector snowmobile trails (class II trails) involved in the trial were the 12-mile Seventh Lake Mountain Trail in the Moose River Plains Wild Forest Area, built in 2012; the 2.9-mile Cooper Kiln or Wilmington Trail in the Wilmington Wild Forest Area, built in 2014; the 2.4 mile Gilmantown Trail in the Jessup River Wild Forest Area, built in 2014; and the 15.25 mile Newcomb to Minerva Trail, which is located primarily in the Vanderwhacker Mountain Wild Forest Area (construction of which was halted by a court order in 2016) . The trial focused largely on the tree cutting and associated impacts from the construction activities on these four trails.

The trial started on March 1st with opening statements by John Caffry on behalf of the plaintiff and Loretta Simon on behalf of the defendants.

THE TRANSCRIPTS

THE PLAINTIFF’S CASE

The plaintiff’s witnesses presented their testimony through questioning by John Caffry and Claudia Braymer. William Demarest provided Caffry and Braymer with invaluable advice on trial tactics.

The first witness for the plaintiff was Dr. Philip Terrie, a Protect the Adirondacks board member and professor emeritus from Bowling Green State University, who has written widely about Forest Preserve history and the adoption of Article 14, Section 1, the “forever wild” provision. Terrie is the author of Forever Wild: A Cultural History of Wilderness in the Adirondacks (1994) and Contested Terrain: A New History of Nature and People in the Adirondacks (2008).

DEC has long argued that Article 14’s prohibition on the destruction of timber applies only to trees 3″ DBH (diameter at breast height) and larger. Terrie testified on the historic meaning of the word “timber” as used in dictionaries and other sources in the 1890s, in the 1894 Constitutional Convention debate, and by such notable 19th Century Adirondack writers as Joel T. Headley and Verplanck Colvin, the first surveyor of the Adirondacks. Terrie testified that in all cases “trees” and “timber” were used interchangeably and that dictionary definitions included “wooded lands” as one of the meanings of timber. Terrie also testified about the historic commercial use of small diameter trees in the late 19th century, further demonstrating that the constitutional prohibition on the destruction of timber was not limited to trees of 3″ DBH or more. Terrie’s testimony, and his cross examination by the State, were completed on March 1st.

At this time, the plaintiff then read into the record portions of deposition transcripts of state officials who were not going to appear at trial, which were previously taken during pre-trial discovery proceedings. In that testimony, these officials talked about the network of class II trails that was under development in the Adirondack Forest Preserve, and described the class II trails built between 2010 and 2016 as the beginning of a large integrated system of trails.

On March 2nd, the plaintiffs called forest ecologist Steve Signell of Schenectady to testify. Signell operates a GIS and forest research business called Frontier Spatial and had been retained by Protect the Adirondacks in 2015 and 2016 to study how many trees were cut down to build the various class II trails and to assess the ecological impacts of trail construction.

Under questioning by Claudia Braymer, Signell testified that he counted, and supervised, counts of over 24,000 trees cut, or planned to be cut, on the four class II trails in question. As part of this work, over 11,600 pictures of stumps were taken with a tape measure showing the diameter at stump height. The 24,000 trees includes over 10,000 standing trees, which had been painted and flagged by DEC, but not yet cut, on over six miles of the Newcomb to Minerva Trail.

Signell presented his findings on the number of trees cut, which were based on the stumps that were counted or photographed, and counts of standing trees on the trail segments that had not yet been cut. Signell testified that he counted all trees regardless of whether they were over or under 3″ DBH. [DEC counted no trees under 3″ DBH.] He also testified that extensive sections of the Seventh Lake Mountain Trail and the Newcomb to Minerva Trail had been heavily graded, which prevented complete counts of the trees that were cut because an unknown number of tree stumps were destroyed by DEC.

The trial then adjourned until March 14th, but was snowed out due to the blizzard that day. Instead, the plaintiff’s team put the time to good use preparing for upcoming testimony. On March 15th, the Plaintiff called Dr. Ronald Sutherland, Ph.D., a conservation scientist from North Carolina who works for the Wildlands Network, a group which also has staff in the Adirondacks. Dr. Sutherland had visited the Adirondacks in August 2016 and walked several sections of the Newcomb to Minerva and Seventh Lake Mountain trails. He testified about the impacts of the Seventh Lake Mountain trail on forest fragmentation, trail erosion, and the creation of extensive grass coverage on the trails, which creates new biological communities, to the detriment of natural wild forest conditions.

Sutherland also testified about the purported “offsets” and “mitigation” measures that the State undertook when it closed unused snowmobile trails in some Wild Forest areas as it built new class II trails. The state argued that relocating trails from the interior of Wild Forest areas to the periphery helped to “defragment” the forest. Sutherland testified that road-like snowmobile trails have the same forest fragmentation impacts as roads. In fact, at 9-12 feet in width, and with a disturbed area far beyond 12 feet in many places, class II trails have far greater impacts than foot trails.

Sutherland introduced into evidence many photographs of the class II trails that he took showing erosion, extensive grassy communities, extensive fern beds in trail corridors, and rock and stump removal. These are conditions consistent with forest roads, not foot trails.

Sutherland’s testimony also focused on the roads and trails that were purportedly closed to offset the impacts of constructing the new class II trails. He testified, based on pictures of various roads and trails closed to snowmobiles, that simply closing them to snowmobiles while allowing continued motor vehicle use, bike riding and hiking will keep these “closed” roads and trails as open corridors for decades. Thus, their adverse impacts on the ecology of the forest would continue to impact the Forest Preserve, and not provide an offset to the impacts of the new trails, as claimed by DEC.

Last, Sutherland testified about old growth forests that he had witnessed while walking on parts of the Newcomb to Minerva and Seventh Lake Mountain Trails. He testified that the construction of class II trails in these areas expanded fragmentation of the forest. He testified that there was no way to offset the negative impacts from building a class II trail through these areas because the State was not creating unfragmented old growth forest in another area.

Sutherland completed his testimony on March 16th and was briefly cross-examined by the state. After Sutherland, Steve Signell took the stand again. (The snowstorm and Sutherland’s limited availability had required that Signell’s testimony be broken up.)

Signell testified about the broader impacts and ecological changes wrought by the construction of class II trails. Signell testified that many of the trees less than 3″ DBH that DEC had marked to be cut were 20-50 feet in height. He also testified about the sample of several dozen tree stumps that were less than 3″ DBH, on which he counted the rings and aged these trees at 50-80 years old. This testimony showed that trees under 3″ DBH can be quite large and can play important roles in the ecology of the forest.

Signell’s testimony continued on Monday, March 20th, when he documented that many sections of the class II trails had become grassy corridors or fern beds due to disturbance during construction. He testified that he performed a “grass presence and absence” study on the SLMT, taking measurements every .10 mile, a total of 117 points, in the trail corridor.

Significantly, this study found grass growing at 56% of the points on the trail, but not in the surrounding forest, indicating that grass was not a natural part of the habitat in the majority of the locations tested. This was compared to the only 8% of the points where grass was found to be part of the natural forest habitat; many of these locations were in uncommon habitat types.

Signell also visited and analyzed a number of the purportedly “closed” trails and found that several of the “closed” trails had actually become overgrown years before and the DEC had abandoned them long ago. These trails had not been used as snowmobile trails for decades and their recent “closing” was largely a paper closing that provided no benefit to the Forest Preserve.

Signell also documented a number of other purportedly “closed” roads and trails that will remain open for motor vehicle use. He testified that eliminating snowmobile use on roads that are kept open for motor vehicles will not provide any benefit to the Forest Preserve.

Signell also testified about other “closed” roads and trails that, while they were now closed to snowmobiles and motor vehicles, had been used for decades. He testified that these former roads were wide and grassy corridors and will remain in that state for decades, so that their closure would not benefit the forest for a very long time. He also testified about stretches of these roads that had been bench cut into the sides of hills and said that these cuts had changed the topography of the area and introduced manmade shapes into the forest, which will never disappear.

Signell’s final subject was the number of trees that were cut to build the new foot trails up Coney Mountain and Goodman Mountain in the Bog River Complex Area of the Forest Preserve. All told, only 63 trees were cut on 1.2 miles on Goodman Mountain and 14 trees were cut on the 1-mile long Coney Mountain Trail. This was far fewer trees than were cut for class II snowmobile trails, where, typically, 500-1,900 trees were cut per mile.

Signell continued his testimony through the morning on March 21st, after which he was briefly cross-examined the state.

Later on the 21st, Billy Amadon testified for the plaintiffs. Amadon is the Stewardship Coordinator for Champlain Area Trails, known as CATS, which has built dozens of miles of foot trails throughout the Champlain Valley. Amadon had also built foot trails on the Piseco Company’s lands in Piseco. Amadon testified about foot trail design using the T Lake foot trail in the West Canada Lakes Wilderness Area as a model of a narrow well-constructed foot trail. He drew contrasts with class II trails in terms of trail width, grading of the trail surface, rock and stump removal, destruction of the understory, narrow bridges, blending the trail in with the natural forms of the forest, and building the trail around trees, rather than destroying them. In all of these ways, a well-constructed foot trail creates a smaller footprint and far less of an impact on the forest than a large class II trail. Amadon was cross-examined and completed his testimony on the afternoon of the 21st.

On the afternoon of the 21st, and in the morning of the 22nd, Peter Bauer, Executive Director of Protect the Adirondacks, testified for the plaintiff. Bauer had assisted forest ecologist Steve Signell with his tree counts of cut stumps (photographing over 9,600 stumps), stump counts on the Coney Mountain Trail, and with his inventory of the status of the roads and trails that purportedly had been “closed” in order to offset the impacts of building the new class II trails. Bauer authenticated Signell’s tree count numbers and testified about the difficulty of locating stumps in heavily graded sections of class II trails. Bauer authenticated the Coney Mountain Trail stump counts and pictures he had taken of the “closed” roads and trails.

Bauer had also witnessed the actual construction of Seventh Lake Mountain Trail and Newcomb to Minerva Trail and introduced pictures of heavily graded and bench cut trails. There was no cross-examination by the State.

At the conclusion of Bauer’s testimony, the plaintiff rested its case.

A section of the Newcomb to Minerva trail built in 2015.

THE STATE’S MOTION TO DISMISS

The State then moved to dismiss the action, arguing that Protect the Adirondacks had completely failed to prove its case. John Caffry argued for the plaintiff against that motion, pointing out that the testimony had proven that the term “timber” in the Constitution was not limited to small trees; that over 24,000 trees of all sizes had already been cut or marked for cutting; that, if anything, this count was lower than the actual amount of tress cut; and that this level of destruction of timber was substantial, and therefore in violation of the Constitution.

Caffry also argued that the testimony had proven that the ecological damage to the Forest Preserve from the construction of the class II trails was significant, and that it had not been offset by the purported closing of unused older trails to use by snowmobiles.

The judge reserved decision on the motion and allowed the trial to proceed.

THE DEFENDANTS’ CASE

The State started its defense on Thursday March 22nd with Peter Frank, the Chief of DEC’s Forest Preserve Bureau. Frank testified about all the policies that DEC had applied to its work on the trails such as the policy on cutting trees on the Forest Preserve, the APA-DEC Forest Preserve MOU, the 2006 Adirondack Park snowmobile plan, and the 2009 snowmobile trail construction guidance, as well as the processes for the development of unit management plans, implementation of UMPs through project-by-project work plans, and public notice in the Environmental Notice Bulletin, among other things. Frank further detailed how the DEC goes about its work to manage the Forest Preserve and plan a class II trail.

When asked if there was any scientific basis for DEC’s policy on tree cutting on the Forest Preserve (LF-91-2) to exclude counting trees under 3″ DBH, Frank replied “No.” Despite the fact that this practice is a major foundation of the State’s defense in the case, no other DEC witness ever provided any scientific or legal basis for this practice of not counting trees under 3″ DBH.

It was during Frank’s testimony that counsel for the plaintiff repeatedly objected to any testimony about state plans, policies, and guidances, arguing that they are not at all relevant to the interpretation Article XIV, Section 1, and that in fact, the Adirondack Park State Land Master Plan expressly states that it is constitutionally neutral. The judge initially allowed the documents into evidence, but only for the limited purpose of showing how DEC went about its work. He made it clear that these documents would have little bearing on his interpretation of the Constitution.

After plaintiff’s counsel began to cross-examine Mr. Frank on whether or not DEC had ever made any determinations that these documents were actually consistent with the Constitution, the judge directed that instead of such testimony being presented, the attorneys for both sides should try to develop a stipulation to resolve this and related issues.

On the morning of March 23nd, the plaintiff and the State placed on the record an agreed-upon stipulation about the use by State witnesses of various state policies, procedures, rules, etc., such as the Adirondack Park State Land Master Plan, the 2009 snowmobile trail construction guidance, the 2006 Adirondack Park snowmobile plan, and DEC’s policy on tree cutting on the Forest Preserve, among others. These policies could be used by State witnesses to explain how they performed their jobs with regard to the design and construction of the class II trails, but they were not to be used as evidence of compliance with Article XIV, Section 1, of the NYS Constitution, the forever wild provision. This agreement neutralized one of the primary defenses that the State had used multiple times in earlier phases of the case.

Frank then completed his testimony. He was followed by Kathy Regan, the Deputy Director of Regional Planning for the Adirondack Park Agency. Regan testified from the APA side of things about the regulations, policies, and standards that the APA uses in reviewing and approving a new class II trail. She testified about the development and amendment of the State Land Master Plan, review of UMPs, and review of DEC work plans. Her testimony shed no light on the Article 14 issue before the court.

March 23rd also saw the start of testimony by Tate Connor, a DEC forester, who was the lead staffer in constructing the Seventh Lake Mountain Trail, and is now the lead staffer for managing the High Peaks Wilderness Area and other associated Wilderness areas. Connor testified in detail about his process for selecting the Seventh Lake Mountain Trail route and constructing this trail, about trail width, trail treads, bench cutting, bridge building, turnpiking, various erosion control methods and development of work plans.

In support of his testimony, Connor also introduced pictures from trails on Hurricane Mountain trail, Cascade Mountain, Indian Pass, Gothics and Pharaoh Lake that showed special features, such as bench cuts on Hurricane, large waterbars and a wide eroded trail surface on Cascade, efforts to build a raised bed to narrow a former logging road at Indian Pass, wooden ladders on Gothics, and a section of trail turnpiking on the Pharaoh Lake trail. Later, Connor’s testimony on cross-examination revealed that most of these examples were not typical foot trails, with some of them being repairs to old roads that had been converted to foot trails. He conceded that ladders were only found on about a dozen trails, primarily in the High Peaks.

Connor returned on March 27th and completed his testimony on March 29th. He testified about DEC trail management standards that first appeared in the High Peaks UMP, and have been used subsequently in all other UMPs, that list different classes of hiking trails, from an “unmarked route” to a “trunk trail”. Foot trails are maintained with a tread width of 18″-26″ and a cleared area of 6 feet. Horse trails are maintained to 8 feet. Connor testified that along straight sections, where class II snowmobile trails are 9 feet wide, this marked an increase of just 1 foot. His direct testimony ignored the differences in width between foot trails and class II trails, and failed to mention that on slopes and turns the class II trails can be 12 feet wide, and that the cleared area on side slopes can often be much wider. These points were later brought out on cross-examination.

Connor also testified about return visits he made to the Seventh Lake Mountain Trail where he photographed people using the trail, and long grassy stretches of trail that had “greened up” after construction and planting with a “conservation mix”. As a former practicing forester, Connor also testified as to the meaning of the word “timber”, as being solely large commercial grade trees. On cross examination, Connor admitted that sections of the Seventh Lake Mountain Trail were 15-17 feet in width due to DEC’s construction activities. He also conceded that some parts of his testimony were only based on his personal opinions, and not on professional standards.

Due to scheduling conflicts, the Connor testimony was broken up by other DEC witnesses. On March 28th, the Defense started the day with Josh Clague, a DEC Natural Resources Planner. He testified about his role in developing the Newcomb to Minerva Community Connector Trail UMP in the summer of 2015 for the Camp Santanoni Historic Area, the Harris Lake Intensive Use Area, and the Vanderwhacker Mountain Wild Forest area. He also talked about developing maps that were used to show where roads and trails were closed to snowmobiles in the Moose River Plains area.

Dr. Timothy Howard, Ph.D., a biologist who is the Science Director of the New York Natural Heritage Program, also testified on March 28th, on several subjects: 1) that clearing all trees within the 9-12 foot class II trail corridors does not constitute a clearcut; 2) that the forest canopy over the class II trails was largely intact; 3) aerial photography that showed no evidence of trail canopy openings; 4) the benefits of closure of snowmobile trails in other parts of a Forest Preserve unit that offset the impacts of building a new class II community connector snowmobile trail elsewhere; 5) how such trail closures contributed to the “de-fragmenting” of the Forest Preserve; 6) criticism of Plaintiff’s stump counts that had been done four years after the tree cutting on the Seventh Lake Mountain Trail; and 7) that there is a history of invasive species infestations at the Camp Santanoni Historic area.

On cross examination, Howard admitted that small DBH trees could be decades old. He also conceded that he had not personally visited most of the trails he used in his “de-fragmentation” analysis. He testified that he did not prepare any form of ecological analysis of the impacts of class II trails. He admitted that it could take decades for a forest system to recover after closure of a trail to motor vehicle use, and that his “de-fragmentation” analysis failed to consider that many of the trails and roads are still in use for other purposes.

On March 29th, the 11th day of the trial, John Burth, an Environmental Program Specialist at the Adirondack Park Agency, who manages the APA’s enforcement program, testified. He testified about three investigations into possible wetlands violations on the Seventh Lake Mountain Trail. He testified that two were reported by APA staff and a third was reported by Protect the Adirondacks. He said his investigations resulted in one case where the DEC was asked to undertake remediation activities.

Burth gave no testimony relevant to whether or not the class II trails are consistent with Article 14. Nevertheless, at the close of his testimony, the State made a motion to dismiss the case against APA. John Caffry argued for the plaintiff that APA had played a key role in planning and approving the class II trails, and was properly made a defendant in the case. The court denied the motion.

The next witness for the defense was Jonathan DeSantis, a DEC forester who is in charge of many Forest Preserve units in the southern Adirondacks, including the Moose River Plains Wild Forest. He testified that the trails closed to snowmobiles in the Moose River Plains area no longer have grooming contracts between the DEC and snowmobile clubs/local governments. He testified that he photographed gates erected at the trailheads of many of the trails closed to snowmobiles in the Moose River Plains. He testified that some trails had been closed to snowmobiles in the Jessup River Wild Forest area and others would be closed once new class II trails were completed.

On cross examination, he conceded that while some trails in the Moose River Plains had been closed to snowmobiles they had not been used as snowmobile trails in recent years. He also conceded that other trails in the Moose River Plains that had been closed to snowmobiles remained open for other motor vehicle use. He admitted that he had not visited all of the trails in the Moose River Plains that were purportedly closed the snowmobile use before his testimony.

On March 30th, the defense put on Robert Ripp, a DEC forester who oversees a number of Forest Preserve units in the central Adirondacks and who is the chief builder of the Newcomb to Minerva Trail. He testified to how he selected the route for the Newcomb to Minerva class II trail, the erosion control features he undertook, bridge siting, class II trail tread width, trail width, and other environmental considerations. He claimed that the injunction by the courts against the tree cutting and grading on all class II trails prevented DEC from stabilizing parts of the Newcomb to Minerva trail, even though he had never reviewed the court’s order himself.

Ripp testified that as practicing forester prior to working for DEC he categorized “timber” as a tree greater than 6″ DBH. Notably, this did not comport with DEC’s practice of only counting trees 3″ DBH and greater. Later, on cross-examination he admitted this was a modern timber industry standard, not an 1894 standard.

Ripp also testified about looking up deeds for different parcels of Forest Preserve that the DEC had purchased over the past 100 years in Minerva where parts of the Newcomb to Minerva trail are located. He testified that these parcels cast doubt on the testimony of Plaintiff’s expert Steve Signell that the trail went through areas depicted on state databases as lands that were Forest Preserve in 1893, and are now old growth forest. On cross examination, Ripp conceded that the newer parcels were outside the areas that Signell had identified as old growth forest. He also conceded that parts of the Newcomb to Minerva trail were 15-17 feet wide and that many areas were heavily graded and then planted with a largely grass “conservation mix”.

Surprisingly, the State then rested its case without calling many of its previously announced witnesses.

PLAINTIFF’S REBUTTAL CASE

On April 4th, the Plaintiffs brought back forest ecologist Steve Signell, who testified about the number of stumps photographed and documented, over 11,500, on the class II trails involved in this lawsuit. He also testified about being able to clearly see sections of class II trails from aerial photography, confirming his prior testimony that the construction of the trails had opened up the forest canopy to sunlight.

The last matter in the trial was the introduction of parts of a deposition transcript from Walter Linck, an Associate Natural Resources Planner at the Adirondack Park Agency, which concerned the siting and construction of class II trails. Linck was the only APA staffer whose testimony was relevant to the Article XIV issues in the case, and it generally supported plaintiff’s position that the class II trails would have numerous adverse effects on the Forest Preserve. The judge admitted the transcript into evidence over the strenuous objections of the Attorney General’s Office. The defense then renewed its motion to have APA dismissed from the case. The court reserved judgment on the motion.

The parties waived making closing arguments.

WHAT’S NEXT

As of this writing, the 16 volumes of trial transcripts have been delivered to the parties. Their attorneys have until July 31st to submit post-trial briefs, with proposed findings of fact and conclusions of law, to the court. The judge will then render a decision.

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A recap of the trial over the future of Article XIV, Section 1, the forever wild provision in the NYS Constitution

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