High Peaks Wilderness Area, Adirondack Forest Preserve, NY. Photo: Shutterstock

A New York state appellate court in Albany ruled Wednesday that they state's efforts to construct a new series of snowmobile trails in the Adirondacks was unconstitutional because of the number of trees that were planned to be destroyed as a result.

The decision from the Appellate Division, Third Department, also affirmed an interpretation by the plaintiff of what constitutes a tree in New York, under the state constitution.

The Third Department's opinion was a reversal from a decision by Albany County Supreme Court Justice Gerald Connolly, who ruled two years ago that the state's plans to construct more than 27 miles of so-called Class II trails in the Adirondack Forest Preserve, mostly for snowmobiling, was lawful. Some of those trails have already been built.

Protect the Adirondacks, an environmental conservation group, had sued the state to halt construction of the trails, saying they were in violation of Article 14 of the state constitution, better known as the Forever Wild clause. The provision essentially guarantees that areas of the Adirondacks are not meaningfully disturbed or used for commercial purposes.

The group was represented by John Caffry, name partner at Caffry & Flower and Claudia Braymer, a solo practitioner. Both attorneys are based in Glens Falls in Warren County. 

“I'm really thrilled,” Braymer said. “I think it's a huge win for the Forest Preserve to have the court rule that the [state] constitution protects all trees regardless of size and that the destruction of trees posed by the construction of the Class II trails—it's really an enormous win for the Forest Preserve.”

A spokesman for the state Department of Environmental Conservation said they were reviewing the court's decision and working to determine the best option going forward.

The agency had argued that most of the trees that would be destroyed to build the trails were less than three inches in diameter at breast height, which doesn't meet the state's definition of a tree when considering removal. Connolly agreed with the state's argument that the trails wouldn't be an unconstitutional destruction of timber.

The Third Department, in a decision written by Associate Justice Robert Mulvey, didn't buy it. The panel of judges, instead, looked to what Protect the Adirondacks had interpreted as the definition of a tree under the state constitution.

Peter Bauer, the group's executive director, said they surveyed areas where trails were planned, or started, and counted the number of trees that would be, or already were, removed. They were also able to look at the stumps of thinner trees in some cases to determine that, even if a tree is less than three inches in diameter at breast height, it could still be decades old.

They then used that evidence to argue that the framers of the state constitution, and delegates to each constitutional convention thereafter, didn't intend for the word 'timber' to only apply to large trees. 

“We thought historically that was the accurate reading,” Bauer said. “The Appellate Division provided a lot of weight to that contention.”

Mulvey, in the court's decision, said they had reviewed testimony and other evidence from the trial two years ago and found that interpretation to be correct.

“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,” Mulvey wrote.

The Appellate Division considered two of the arguments made by Protect the Adirondacks—that construction of the trails violated the Forever Wild clause, and that the state's actions would be an unconstitutional destruction of timber. The panel ruled that the trails didn't violate the Forever Wild clause outright, but that the planned removal of trees was unlawful.

The trails would have required the destruction of 25,000 trees in total, according to the decision. Only about a quarter of those were more than three inches in diameter at breast height. But after the court decided that each tree should be counted, regardless of size, it concluded that the number of trees to be destroyed would violate the constitution.

Mulvey cited a legal opinion from 1954 by the state Attorney General's Office, which said at the time that relocating a portion of existing highway in the Forest Preserve, and destroying 5,000 trees in the process, was unconstitutional. The same analysis applied here, he wrote.

“The construction of these trails required the destruction, on average per mile, of over 200 trees at least three inches DBH and approximately 925 trees of all sizes,” Mulvey wrote. “It would be anomalous to conclude that destroying 925 trees per mile of trails, or approximately 25,000 trees in total, does not constitute the destruction of timber 'to a substantial extent' or 'to any material degree.'”

While Bauer said he expected DEC to appeal the decision to the state's highest court, he remained confident the ruling would be upheld.

“We believe this is a bold and consistent decision with past legal precedent and what the black letters say on the white page of the constitution,” Bauer said.

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