OPINION OF THE COURT
On this appeal, we must determine whether the State's plan for the construction of approximately 27 miles of Class II community connector trails designed for snowmobile use in the Forest Preserve is permissible under the New York Constitution. The plan requires the cutting and removal of thousands of trees, grading and leveling, and the removal of rocks and other natural components from the Forest Preserve to create snowmobile paths that are 9 to 12 feet in width. We conclude that construction of these trails violates the "forever wild" provision of the New York State Constitution (art XIV, § 1) and therefore cannot be accomplished other than by constitutional amendment.
The Adirondack Park currently encompasses approximately six million acres of public and private lands. The Forest Preserve encompasses 2.5 million acres of state-owned land within the Park. Defendant New York State Department of
In 2006, the Department of Environmental Conservation and the New York State Office of Parks, Recreation and Historic Preservation prepared a "conceptual snowmobile plan" with the goal of creating a system of snowmobile trails between communities in the Adirondack Park. In 2009, DEC developed a guidance document, entitled "Management Guidance: Snowmobile Trail Siting, Construction and Maintenance on Forest Preserve Lands in the Adirondack Park," to implement the concepts outlined in the plan. Under the guidance, the "multi-use" snowmobile trails are meant to improve community connections, but are also intended for more "passive recreational uses," including hiking, mountain biking and other "non-motorized recreational pursuits in spring, summer and fall." Trails in the park that are open to snowmobiles are classified as either Class I secondary snowmobile trails or Class II trails, the type at issue in this appeal. Class II trails are "trail segments that serve to connect communities and provide the main travel routes for snowmobiles."
Protect the Adirondacks! Inc. commenced this combined declaratory judgment action and CPLR article 78 proceeding, alleging, in relevant part, that construction of the Class II trails violated article XIV, § 1 of the New York Constitution. Plaintiff alleged that the construction of the trails is impermissible because it required cutting and destruction of a substantial amount of timber, would create an "artificial, man-made setting" in the Forest Preserve and was inconsistent with the Preserve's wild forest nature. After a bench trial Supreme Court held that the construction was not unconstitutional.
Defendants appeal, and plaintiff cross-appeals, as of right (see CPLR 5601[b]).
The Forest Preserve is a publicly owned wilderness of incomparable beauty. Located in two regions of the Adirondack and Catskill Mountains, the Forest Preserve—with its trees, rivers, wetlands, mountain landscape, and rugged terrain—is a respite from the demands of daily life and the encroachment of commercial development. It has been this way for over a century because our State Constitution mandates:
This unique "forever wild" provision was deemed necessary by its drafters and the people of the State of New York to end the commercial destruction and despoliation of the soil and trees
In 1873, in response to widespread concern about the visible and potentially irrevocable depredation of the Adirondacks, the State appointed a commission of "trained forest experts" to "investigate and report a system of forest preservation" (Rep of Comm on Forest Preserves, 1885 NY Assembly Doc No. 36 at 3, 39). The commission's final report urged the creation of a forest preserve to "be forever kept as wild forest lands" (id.).
In 1885, the legislature passed a statute providing that "[a]ll the lands now owned or which may hereafter be acquired by the state of New York" within certain counties, "shall constitute and be known as the forest preserve" (L 1885, ch 283, § 7). In accordance with the recommendations of the report, the statute further provided that "[t]he lands now or hereafter constituting the forest preserve shall be forever kept as wild forest lands. They shall not be sold, nor shall they be leased or taken by any person or corporation, public or private" (id. § 8).
The original statutory and administrative efforts to protect the wild forest proved ineffective. Just two years after the Forest Preserve was created, the legislature afforded the Comptroller the authority to sell, upon the recommendation of the Forest Commission, timber and land located on the boundaries of the Preserve (see L 1887, ch 475, § 8, amending L 1885, ch 283, § 8). In 1893, the legislature conferred upon the Forest Commission "greatly enlarged powers" to sell timber, lease camp sites, and build roads and paths in the Forest Preserve (Association for Protection of Adirondacks v Macdonald, 228 App Div 73, 77-78 [3d Dept 1930], citing L 1893, ch 332).
The Constitutional Convention of 1894 assembled in response to widespread discontent with the destruction of the Adirondack forest.
The proposal was revised to ban the leasing of the land and the removal or destruction of timber. As revised, the amendment garnered unanimous support from the 1894 Constitutional Convention delegates and was submitted to a vote of the electorate and approved by the people of the State of New York. The drafters conceived that any use of the Forest Preserve contrary to the constitutional mandate may only be accomplished by an amendment approved by the electorate. The legislature, by more than a century of popular referenda proposing constitutional amendments for projects large and small within the Forest Preserve, confirmed and honored the Convention's solution. Thus, since becoming law in 1895, the people of New York have voted to amend article XIV, § 1, a total of 19 times to permit specific encroachments on the Forest Preserve.
Only once before has this Court considered the meaning of the constitutional provision at issue here. In Association for Protection of Adirondacks v MacDonald (253 N.Y. 234 ), the Court held that a statute authorizing the construction of a bobsleigh run, requiring the destruction of 2,500 trees, for the 1932 Winter Olympics in Lake Placid was unconstitutional (id. at 242).
As the Court noted, the proposed project was miniscule in comparison to the great expanse of the Preserve, requiring only 4.5 acres of land out of a total of 1,941,403 (id. at 236). Unquestionably, the value to the public of hosting the Olympic Games and bobsledding in the years thereafter was high. Nonetheless, we held that the bobsleigh run could not be built, despite its attractions, because the Constitution forbade it:
Applying MacDonald to the appeal before us, we conclude that the planned 27 miles of snowmobile trails may not be built without constitutional amendment.
The construction of the Class II trails is, for constitutional purposes, no different than the construction of the bobsleigh run. Both would work a substantial change to the Forest Preserve. Both were explained as having a specific purpose that did not benefit the overall public interest (the Olympics and connecting local communities) and both were additionally justified as having a broader purpose that benefitted all the people of New York (opening the bobsleigh run and snowmobile trails for general public use).
Further, the Class II trails require greater interference with the natural development of the Forest Preserve than is necessary to accommodate hikers. Their construction is based on the travel path and speed of a motorized vehicle used solely during the snow season. The trails may not be built like roads for automobiles or trucks, but neither are they constructed as typical hiking trails.
Defendants and the dissent offer two principal arguments in response. The first is that we should not view the destruction of trees as significant because the number is comparatively small per mile of trail (see dissenting op at 95). We rejected a similar argument in MacDonald when we declined to minimize the impact of the project by viewing it as a small percentage of the overall Forest Preserve (see MacDonald, 253 NY at 236-237 [rejecting the argument that "(t)he Forest Preserve within the Adirondacks consists of 1,941,403 acres" and "(t)he taking of four acres out of this vast acreage for this international sports' meet seems a very slight inroad upon the preserve for a matter of such public interest and benefit to the people of the State of New York"]).
Second, defendants and the dissent contend that the project's impacts are justified because it enhances access to the Preserve and provides a variety of recreational opportunities. That analysis proceeds from a fundamental misunderstanding. The Constitution provides for access and enjoyment of the Forest Preserve as a wild forest: "very considerable use may be made by campers and others without in any way interfering with this purpose of preserving them as wild forest lands" (MacDonald, 253 NY at 241, citing Robert Marshall, The Problem of the Wilderness, 30 Sci Monthly 141, 141 ). The project proposed here, like that proposed in MacDonald, is impermissible "simply and solely for the reason that ... the Constitution says that it cannot be done" (id. at 242). Improving recreation and the use and enjoyment of the Preserve are laudable aims, but they were insufficient in MacDonald to obviate the need for a constitutional amendment.
The fact that defendants may be doing everything they believe feasible to minimize the destruction of the Forest Preserve in the construction of the Class II trails, by, for example, reducing the number of trees cut, routing the trails as close to the periphery or highway as possible, and implementing erosion control measures, does not support a different conclusion. The issue is simply whether the project, as proposed, complies with the constitutional provision.
If the trails at issue here are equally important to New York as those projects were, then the people can express their will accordingly through the democratic process. Until they say otherwise, however, the door is closed because the planned Class II trails are constitutionally forbidden.
The order of the Appellate Division should be affirmed, without costs.
STEIN, J. (dissenting).
For well over 100 years, the leaders and citizens of this State have strived to protect one of its most precious resources, the Adirondack Forest Preserve, consistent with the public policy that "[w]hatever the advantages may be of having wild forest lands preserved in their natural state, the advantages are for every one within the State and for the use of the people of the State" (Association for Protection of Adirondacks
This Court has long rejected an interpretation of the Forever Wild provision as mandating that, in order to keep the Forest Preserve "as wild forest lands," we must endeavor to "preserve it from the interference in any way by the hand of man" (MacDonald, 253 NY at 238). That interpretation is contrary to the guiding principle that "[t]he Forest Preserve and the Adirondack Park ... are for the reasonable use and benefit of the public" (id. at 240-241). Rather, we recognized that "[a] very considerable use may be made by campers and others without in any way interfering with th[e] purpose of preserving them as wild forest lands" (id. at 241 [emphasis added]).
The project at issue in this appeal—initiated by respondent New York State Department of Environmental Conservation (DEC) after a multiyear planning, public comment, and review process in conjunction with the Adirondack Park Agency (APA)—involves the construction in the Forest Preserve of segments of trails totaling approximately 27 miles to be used by hikers and, during the winter, snowmobilers. I disagree with the majority's conclusion that the project "would work a substantial change to the Forest Preserve" (majority op at 83). The majority misreads our State Constitution to arrive at the mistaken conclusion that the people of this state must undertake the arduous process of constitutional amendment to enable a long-standing public use of the Preserve to continue in a manner that is both safe for, and designed to protect, the Preserve's most sensitive resources. Because the majority's holding thwarts the intention of the drafters of the Forever Wild provision (NY Const, art XIV, § 1) and manifestly contradicts this Court's precedent, I dissent.
The six-million-acre Adirondack Park is currently visited by approximately 12.4 million people annually (see Adirondack Council, State of the Park, Landscape of Hope 2020-2021 at 4,
By way of background, in 2006, DEC and the Office of Parks, Recreation and Historic Preservation adopted the Snowmobile Plan for the Adirondack Park/Final Generic Environmental Impact Statement. The plan anticipated a new trail system with no material increase in miles, but with the development and creation of trails to connect communities located within the Park, as well as the redesignation of existing trails within the forest interior as nonmotorized trails (see Matter of Adirondack Council, Inc. v Adirondack Park Agency, 92 A.D.3d 188, 189 [3d Dept 2012]). Under the plan, the new trails would be open year-round for recreational use by, not just snowmobilers, but also hikers, cyclists and cross-country skiers. The proposed placement of trail segments at the periphery of Forest Preserve
In 2009, to implement the plan, DEC and respondent APA adopted the "Management Guidance: Snowmobile Trail Siting, Construction and Maintenance on Forest Preserve Lands in the Adirondack Park." The Guidance provides for a two-tiered classification system for snowmobile trails, consisting of Class II, community connector trails and Class I, secondary trails that are spur trails or ungroomed (see Adirondack Council, Inc., 92 AD3d at 189-190). This appeal involves only the Class II trails.
Like the snowmobile plan, the Guidance called for the closure of trails to motorized vehicle use in interior areas of the Preserve and the placement of new trails along the periphery of the forest to the extent possible to "shift the highest snowmobile use to the outer periphery of Forest Preserve lands" and lead to "lower noise levels, lower exhaust emission levels, decreased impacts on wildlife and reduced user conflicts between users participating in motorized and non-motorized forms of recreation" in "the wilder, more remote areas of the Forest Preserve." The Guidance further provided that the cutting of "overstory" trees was to be avoided in order to maintain a closed forest canopy, and that old growth and large trees should be protected. Thereafter, DEC constructed 11 noncontiguous Class II trails or trail segments on Forest Preserve land. The 27 miles of new trails constructed between January 1, 2012, and October 15, 2014, required that a total of 6,184 trees measuring at least three inches or larger in diameter at breast height (DBH) be cut.
Following a trial on plaintiff's claims in this declaratory judgment action, the courts below determined that the term "timber" in the Forever Wild provision "is not limited to marketable logs or wood products, but refers to all trees, regardless of size" (175 A.D.3d 24, 31 [3d Dept 2019]); thus, "approximately 25,000 trees," including seedlings and saplings,
As noted by the majority, all members of the Court disagree with the Appellate Division's bifurcated analysis of article XIV, § 1 (majority op at 79, 82). The two sentences of this provision are interrelated such that the destruction of timber to a substantial or material degree necessarily violates the "forever wild" prescription of article XIV and, concomitantly, the removal of timber that is not sufficiently substantial to impact the wild forest nature of the Preserve will not be unconstitutional. Although the amount of timber cut is central to the inquiry, the MacDonald "substantial extent" or "material degree" standard cannot be reduced to merely an exercise in tree counting, but requires consideration of the scope, nature, purpose and impact of the project on the affected area and on the Forest Preserve as a whole.
Turning to the legal issues disputed by the parties, the construction of the trails at issue here—involving the removal of 6,184 trees three inches DBH or larger—took place over 27 miles of noncontiguous, multiuse trails that did not adversely affect old-growth trees, retained a closed canopy, provided for erosion control, involved no infiltration of invasive species, and
In discussing the history of the 1894 amendment that first added the Forever Wild provision, the majority correctly observes that the Forever Wild provision had its genesis in widespread public concern over the depredation of timber by industrial logging interests and the impact of commercial exploitation on the forest and watershed (see majority op at 79-81). The 1885 statute that created the Preserve mandated that the "forest preserve shall be forever kept as wild forest lands" and could not be sold, leased or "taken by any person or corporation, public or private" (L 1885, ch 283, § 8). At trial, plaintiff provided undisputed testimony that the statute was enacted in response to the "[w]idespread belief that commercial logging was destroying the Adirondacks and all its values."
Nevertheless, the Forest Commission, which was tasked with maintaining and protecting the Preserve (see L 1885, ch 283, §§ 1, 9), continued to sell both land and timber in the Forest Preserve (see L 1893, ch 332, §§ 103, 121). Thus, at the 1894 Constitutional Convention, the Committee on the Forest Preserve was animated by a concern that a forest "form[ed] during the lapse of uncounted ages can be swept away in a few years by the acts of the lumbermen and the fires that follow in his path" (4 Rev Rec, 1894 NY Constitutional Convention at 130). The delegates recognized the value of the wild forest as a watershed (id. at 130-132), "as a great resort for the people of this State ... for seeking, finding and preserving health" (id. at 131-132), and as "a symbol of sport, of recreation and pleasure-seeking" (id. at 133). With respect to timber, the proposed constitutional amendment initially provided only that the timber on Forest Preserve lands could not be "sold" (id. at 124), but ultimately was revised to include the additional restriction that timber cannot be "removed or destroyed" (id. at 158). "Destruction of trees by flooding, through the erection of dams, was decried and was one of the reasons suggested for adding the word `destroyed' to the amendment" (Association for
As the foregoing demonstrates, defendants are correct that the primary aim of the drafters was the prevention of commercial logging or the sale of land for that purpose, in order to preserve it for "the great number of pleasure seekers, [and] the great number of invalids that annually visit that territory" (id. at 156). Thus, while the delegates intended to protect the Preserve from commercial exploitation, they did not intend to create a purely isolated and untouched forest haven; rather, they preserved the forest for the use and enjoyment of the people of the State of New York. That is, the delegates considered the protection and the use of the Preserve to be interlocking goals, not mutually exclusive or incompatible interests.
Our cases have consistently recognized that these are interlocking goals—preservation for the purpose of enabling recreational use of the wild forest land in the Preserve by the people. In 1899, just five years after the Forever Wild provision was added to the Constitution, this Court recognized that the "primary object of the ... forest preserve ... was to save the trees for the threefold purpose of promoting the health and pleasure of the people, protecting the water supply as an aid to commerce and preserving timber for use in the future" (People v Adirondack Ry. Co., 160 N.Y. 225, 248  [holding that a railroad operated by steam in the Park was not a permissible use of the land given "the well-known danger of destruction of forest lands by fires communicated by locomotives"]).
Approximately 30 years later, in MacDonald, the Court stated that
The Court reaffirmed its understanding that "the advantages" of preserving the "wild forest lands ... in their natural state... are for everyone within the State and for the use of the people of the State" (id. at 238-239 [emphasis added]). In other words, we have long considered the recreational use of the wild forest lands to be constitutional, so long as such use does not impair the wild nature thereof.
MacDonald is especially instructive here. The MacDonald Court noted that
However, MacDonald rejected that strict reading of the constitutional provision, stating:
It bears emphasis that MacDonald recognized that the maintenance of proper facilities for public use and access are among the "things necessary" that are permitted, so long as they do not result in "the removal of the timber to any material degree" (id.). As noted above, we also explained that "[a] very considerable use may be made by campers and others without in any way interfering with this purpose of preserving them as wild forest lands" (id. at 241).
Under MacDonald, insubstantial cutting to allow public use of the forest consistent with its character as a wilderness is constitutional. That rule follows from our recognition that the cutting of "timber" to provide for public use of the Preserve in a manner that maintains the Preserve's wild forest nature is not a competing policy interest to be balanced against preservation of the wilderness; rather, both concerns are central to the purpose of the Forever Wild provision. In any event, it was settled by MacDonald over 90 years ago that there is no absolute bar on cutting "timber" to enable the public to use and enjoy the Preserve as a wild forest, provided that such cutting is not to a "substantial extent" or to "any material degree" (253 NY at 238, 242). Thus, two of the questions before us on this appeal are what is "timber" and what is cutting of it to a "substantial extent" or "material degree."
With respect to the understanding of the term "timber" around the turn of the last century, contemporaneous statutes distinguished between the terms "tree" and "timber" or defined timber as trees of a certain size (see former Fisheries, Game
On a more pragmatic note, there are approximately 2,000 miles of hiking trails in the Preserve. Because maintenance of those trails requires the clearing of seedlings and saplings, as well as side cutting (see United States Department of Agriculture, United States Forest Service, Trail Construction & Maintenance Notebook, Clearing and Brushing; Removing Trees, https://www.fs.fed.us/t-d/pubs/htmlpubs/htm07232806/page07.htm [accessed Apr. 9, 2021]), adoption of plaintiff's interpretation of the term "timber" to include seedlings and saplings would disincentivize trail maintenance and thereby unreasonably increase the risk to the millions of people who use the Preserve each year. Any interpretation of the constitutional provision that would discourage the maintenance of existing facilities for the public would be contrary to our recognition in MacDonald that the "Forest Preserve and the Adirondack Park within it are for the reasonable use and benefit of the public" and that "the use of the park by campers and those who seek ... solitude of the north woods" is entirely appropriate (253 NY at 240-241).
Creating hiking trails for year-round use is entirely consistent with the purpose underlying the constitutional protection of the Forest Preserve, and the construction at issue here involves trails that the courts below found to be more in the nature of hiking trails than roads.
Those concerns are not present here because, as Supreme Court stated, "trails for access would appear to be the quintessential example of an appropriate use of the Preserve." The trails do not irrevocably change the wild nature of the land affected, commoditize it in the manner of a "golf course" or "toboggan slide," or encourage large, concentrated gatherings of sporting participants and spectators. Given the purpose and nature of these trails, together with the affirmed findings of fact that the trail construction techniques minimized adverse environmental impacts, it cannot be said the construction of the trails impaired the wild forest nature of the Preserve.
The majority's conclusion to the contrary ignores the nearly 800 miles of similar trails already existing in the Preserve, the constitutionality of which is not disputed. Limiting public access to the Preserve on trails such as these, which are akin to
Judges FAHEY, GARCIA and WILSON concur; Judge STEIN dissents in an opinion, in which Chief Judge DIFIORE concurs.
Order affirmed, without costs.