Sierra Club Atlantic Chapter amicus brief supported Protect the Adirondacks lawsuit
By Roger T. Gray, Adirondack Committee
The New York State Constitution’s Article 14, known as the “forever wild” clause, passed by the voters in 1894, is widely considered to be one of the strongest and most effective forest protection laws in the world, protecting the Adirondack and Catskill Forest Preserves for more than 100 years.
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. -- Article 14, NYS Constitution
However, to paraphrase Patrick Henry, the price of forever wild is eternal vigilance. Exercising that vigilance, the not-for-profit organization, Protect the Adirondacks, in 2013 filed a lawsuit against the NYS Department of Environmental Conservation (DEC) and the Adirondack Park Agency (APA) to challenge the legality of plans to construct what the DEC termed “Class II Community Connector” snowmobile trails, covering hundreds of miles in the Adirondack Forest Preserve.
Protect the Adirondacks filed after the first 27 miles of this new kind of trail were under construction, or planned and laid out in the field. Through meticulous on-the-ground research, Protect determined that construction of the first group of these trails would result in the destruction of 25,000 trees, a clear violation of the Constitutional mandate: “nor shall the timber thereon be sold, removed or destroyed.” Subsequent court testimony in the case established that these community connector trails, while defined by the DEC as between 9 and 12 feet wide, in fact, were often up to 20 feet wide where hillside turns require excavation and banking, and frequently required heavy construction machinery, such as backhoes and bulldozers, to remove rocks and stumps to allow for straight, high-speed travel, over a graded, flat surface. Once built, these community connector trails require daily maintenance with large mechanized groomers to maintain the snow surface.
 Community connector snowmobile trail construction in the Forest Preserve |
In the summer of 2016, Protect the Adirondacks won injunctions that stopped trail construction, injunctions that prevail to this day. In early 2017, a 17-day trial was held in Albany that involved expert testimony on both sides. In December 2017, the Supreme Court found in favor of the state.
Protect appealed the decision to the Appellate Division, Third Department of the State Supreme Court, in 2018. In July 2019, that court, in a 4–1 decision, found in favor of Protect the Adirondacks, ruling that cutting 926 trees per mile, or 25,000 trees in total, to build the class II community connector snowmobile trails constituted destruction of timber “to a substantial extent” or “to a material degree” and thus violated Article 14, the forever wild clause, of the Constitution.
Commenting in a magazine article about the case, Pace University law professor Nick Robinson (who is an honorary vice president of the Sierra Club) noted: “Though some people were taken aback by the ruling, they shouldn’t have been. New York’s Constitution is quite clear; the forest preserve is to be kept as forever wild forestland.”
The state appealed the decision to New York’s Court of Appeals. Recognizing the potential significant precedent involved in this case in terms of future protection of the Forest Preserve, the Sierra Club Atlantic Chapter decided to file an amicus curiae brief in support of Protect the Adirondacks.
We were very fortunate that Professor Robinson put us in touch with an excellent team at the Pace University Environmental Litigation Clinic, Todd Ommen, Managing Attorney, and Gabrielle Dylag, Legal Intern. They worked with us on a pro bono basis with tremendous insight and determination, first, to develop the New Matter Form to obtain approval from the Sierra Club national Litigation Committee, and then to prepare and file our amicus brief. Our brief attempted to highlight the significance of the affirmative duty of New York State to meet the constitutional requirement that the lands “shall be forever kept as wild forest lands.” This is a mandate not only to recognize what Article 14 “prohibits,” but to recognize that it “promotes” a responsibility on the part of the state to actively enhance the Forest Preserve and the natural values that it has embodied for more than a century.
Our brief was filed in November 2020. In February 2021, the Adirondack Council and Adirondack Wild: Friends of the Forest Preserve also filed amicus briefs in support of the Protect the Adirondacks case. Amicus briefs were filed in support of DEC’s position by the Empire State Forest Products Association and, surprisingly, by the Adirondack Mountain Club, the Open Space Institute and The Nature Conservancy.
Peter Bauer, executive director of Protect the Adirondacks, stated that the amicus briefs filed on behalf of the state, which contended that if Protect’s suit were upheld it would mean an end to building and repair of hiking trails, were “specious claims”; he noted that hiking trail repair and building has continued while the case made its way through the courts.
In response to the briefs submitted supporting the DEC and APA, John Caffry, attorney for Protect the Adirondacks, wrote to the court: “This Court’s decision herein has the potential to determine the fate of not only the few dozen miles of Class II Community Connector snowmobile trails that are directly at issue herein, but also the hundreds of additional miles of such trails that the Defendants intend to build. Such an action would destroy hundreds of thousands of additional trees. The framers of Article 14 could never have imagined that after they ‘shut the door, and . . . close[d] it tight . . . to protect that great and magnificent forest from further spoliation’ such a level of destruction could be allowed to occur. Previously, any such action on the Forest Preserve has required a constitutional amendment. This Court should not change that now.”
Roger Downs, Atlantic Chapter Conservation Director, put it in the larger context of climate change:
"The Sierra Club was compelled to file our own amicus brief with the Court of Appeals because we are witnessing the erosion of the forever wild clause’s highest purpose and meaning. We are entering a new chapter in our state’s history, where the cataclysmic effects of climate change must be met with bold plans to protect our remaining wilderness for resiliency and adaption. Our future relies upon our wild forests to sequester carbon, protect drinking water and provide refuge in a rising tide of extinction. Violating this constitutional obligation, with plans to log and bulldoze tens of thousands of trees, miles into the wilderness — just to create highways for snowmobiles — sets an alarming precedent that betrays our understanding of Article 14 and all that must be done to secure New York’s forever wild legacy."
The Court of Appeals heard oral arguments in the case on March 23. Comments and questions from the justices reflected their clear recognition of the magnitude of the decision they were being asked to make. One justice commented, “. . . the purpose of the constitution [Article 14] was to preserve as much as possible of the forever wild nature of the Adirondack preserve . . . the State made a policy choice, and they’ve preserved it for over 100 years, to say that . . . economic benefits . . . while it may be a rational decision, result in a destruction of this forest and a compromise of the ecological validity, actually the gift we’ve been given by God to preserve . . . DEC’s position is rational, but not constitutional.” Another justice asked why, if a constitutional amendment was required for something like widening the ski trails at Whiteface Mountain, an amendment would not be required for construction of road-like trails for mechanized vehicles.
On May 4, the Court of Appeals, in a 4 – 2 decision issued its ruling: “We now affirm and hold that the planned construction of the Class II community connector trails would violate the constitution.” The court decision is very clear that if such trails are to be constructed, they, like past proposals to widen ski trails at State ski centers, must first be approved by a constitutional amendment, where "the people can express their will accordingly through the democratic process."
Professor Robinson noted, “Two years after the Sierra Club was founded in California, the People of New York in 1894 adopted the world’s first constitutional protection for wilderness. Today New York’s highest state court reaffirmed that the 3 million acres of the Adirondack and Catskill Forest Preserve must indeed be kept ‘forever wild.” The Club’s Atlantic Chapter celebrates Protect the Adirondacks’ landmark victory, preventing New York from cutting trees and creating “popular” mechanized snow mobile roads across wilderness lands. Each generation picks up the baton anew in the race to save wilderness. As we say in New York, Excelsior!”
This is a tremendous, precedent-setting victory. This court decision will govern State management of the Forest Preserve for decades “Forever wild” means a lot more today, and this will ensure that the Adirondacks are truly protected for the generations to come,” said Chuck Clusen, Chair of Protect the Adirondacks.
Congratulations and thanks to Protect the Adirondacks, and their attorneys, John Caffry and Claudia Braymer, for their dedication and determination to protect the Forest Preserve!!
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The oral arguments may be viewed here: https://youtu.be/QcGzEvLgILA
The Court of Appeals ruling may be viewed here: https://www.nycourts.gov/ctapps/Decisions/2021/May21/21opn21-Decision.pdf