In an op-ed run in the Albany Times Union on August 1, 2021, and in the Adirondack Almanack, Town of Indian Lake Supervisor Brian Wells got many things wrong about the recent historic forever wild court decision.
He makes serious accusations, yet he twists, bends, and distorts reality to fit his narrative. The one thing that he got right was that “Class II Community Connector Snowmobile Trails” were struck down by New York’s highest court because they violated Article 14, Section 1, of the State Constitution, the forever wild clause.
Here are a dozen ways that Brian Wells plays fast and loose with the truth.
One, he accuses Protect the Adirondacks of “sabotage” of an agreement between state officials, local government, and green groups when we successfully sued the Department of Environmental Conservation (DEC) and the Adirondack Park Agency (APA) for approving and starting to build a network of hundreds of miles of new, wide Class II Community Connector Snowmobile trails.
Wells writes rhetorically “Who wins when self-professed environmental groups sabotage a plan that would have provided a net benefit to the Forest Preserve, the people who come to enjoy it, and those of us who live and work here?”
Sabotage? That’s a strong accusation and it’s total bunk. The “plan” referenced is the state’s plan to build hundreds of miles of Class II trails in the Forest Preserve. I’m not sure how it is that Brian Wells could have missed the longstanding concerns of Protect the Adirondacks and others about the constitutional violations of Class II trails. In the late 1990s we were instrumental in forcing DEC actions against the Town of Indian Lake for illegally widening the Rock Lake snowmobile trail. The Town of Indian Lake had to replant trees for miles on that trail.
From 2000 to 2004, during Governor Pataki’s Snowmobile Focus Group, we consistently talked about our concerns that anything like a Class II trail would violate Article 14, Section 1. On constitutional grounds, among other concerns, we opposed the Snowmobile Plan in 2006, the Snowmobile Trail Guidance in 2009, and the Moose River Plains Wild Forest Unit Management Plan in 2010. We talked publicly about our positions on each of these matters.
When the state started to build the new Seventh Lake Mountain Trail in 2012 in the Moose River Plains, the first major new Class II trail, we were out in the field and documented our concerns in letters to the APA and DEC. We published accounts on our website. We widely publicized these views. How is it that when we made our position crystal clear year after year, we’re somehow guilty of sabotage?
The reality is that many folks simply refused to listen.
Two, how is standing up for the forever wild clause in the State Constitution sabotage? Thankfully, after our 8-year legal challenge, Article 14, Section 1, remains intact. The framers of the forever wild clause acted in 1894 to prevent the Governor, Legislators, and state commissions/agencies from making major decisions over the use of the Forest Preserve. Governors, Legislators, and state agencies are all acutely susceptible to outside pressures and influence to make various agreements, and the framers deliberately wrapped the Forest Preserve in unique constitutional protections to ensure that only the People would make the big decisions on its use.
Clearly, state agency leaders and Town Supervisors were content to use the Forest Preserve in the case of Class II trails as a bargaining chip. The Finch deal illustrates perfectly that the vision of the framers was just as important, if not more so, in 2021 as it was in 1894.
Three, how is it sabotage when we stood up for the rule of law? Protect the Adirondacks went to court as a last resort. We went to court when we had exhausted all other options. Again, we did everything we could to try and convince folks that Class II trails were unconstitutional, but nobody listened to us.
When Protect the Adirondacks relied upon the system of checks-and-balances governing, so important to American history and American life, where the courts are one branch that can hold accountable the other branches of government when they break the law, how exactly is that sabotage?
How is it sabotage when the system worked? Calling Protect the Adirondacks’ successful legal challenge sabotage simply does not add up.
Four, Wells talk a lot of about an “agreement” between local government leaders, the DEC, and some green groups around the adoption of the Essex Chain Lakes classification in 2013 and its Unit Management two years later. This was all done after Protect the Adirondacks went to court. This “agreement” was negotiated in secret. Nobody at the DEC or local government or the green groups involved has ever given me the same answer about the substance of this secret agreement.
Recently, the former DEC Commissioner would not even say there was an agreement; he called it a “concept.” One green group that participated said there was no agreement. If this agreement was so important, why was it not made public? Why was a written version never released? Why was this not a public document? Perhaps secret meetings that lead to secret deals that conspire to break the law are not the best way to do
Wells says that this agreement was made in “good faith.” In what universe is an agreement negotiated in secret, that’s based at its core on breaking the law, somehow a good-faith agreement? Adirondack Park decision making would truly benefit from greater sunshine.
Five, local government interests got plenty from the state beyond the Class II trails that were struck down. Let’s look at what local governments wanted and what they got around the state’s purchase of the former Finch lands. Brian Wells would have people believe that the only thing that local government wanted or received was the DEC greenlighting Class II trails. The reality is that there were many other parts to the Finch lands deal that were wholly unaffected by the recent Protect decision.
The State of New York purchased around 164,000 acres of the former Finch, Pruyn and Company lands. The terms of this purchase and subsequent recreational use were shaped by local governments. At their behest 95,000 acres were protected under conservation easements, not added to the Forest Preserve. The major recreational right purchased on the easements lands was for new snowmobile trails linking Indian Lake, Inlet, Newcomb, and Long Lake. The conservation easements purchased in 2010 secured dozens of miles of snowmobile trails for the Town of Indian Lake; on easement lands snowmobile trails can be as wide as anybody wants them. At the insistence of local government, private hunting camps were also retained on easement lands, which shortchanged other public recreational opportunities.
The purchase of 69,000 acres of former Finch lands as Forest Preserve was also shaped by local government leaders. Floatplane rights to First Lake on the Essex Chain and Pine Lake were transferred to local governments. This had never been done before, and this decision shaped Forest Preserve land classification options and decisions. Road maintenance easements on new Forest Preserve lands were also transferred to local governments. Again, this had never been done before.
Finch lands were also provided to expand the Town of Newcomb Golf Course. Other Finch lands were transferred to the Town of Long Lake. The cabin at Boreas Ponds and the Farmhouse on the Chain Lakes Road were retained, though neither the state or local government has a plan for what to do with them.
The Polaris Bridge over the Hudson River was retained and the Town of Indian Lake won approval for a second snowmobile bridge over the Cedar River, just a few miles downriver from an existing snowmobile bridge over the Cedar. Miles of motor vehicle roads–the Golf Brook Road, the Chain Lakes Road, and others within the Essex Chain–were kept open as new public Forest Preserve roads. Millions of dollars were provided to local governments in grants and road maintenance contracts.
And then there was the new $25 million Frontier Town Campground.
Protect the Adirondacks opposed many of these things, and agreed with some, but the reality is that these items were all local government priorities and none of these things have been changed by the Protect decision.
Six, Wells’ op-ed clearly illustrates that using secret deals is a poor way to make public policy: the courts will sometimes hold accountable those in power. Yet, it appears that when local government leaders were successful in working in secret to cut deals with the powers that be to rig the outcomes that they wanted everything was fine. When the DEC put its big thumb on the scales to approve local government priorities during the Essex Chain and Boreas Pond land classification processes, ignoring science and the long-established independent assessment procedures in the process, as well as public comments, all was fine. When Unit Management Plans were approved or revised, again with DEC’s big thumb on the scales, ignoring science and the long-established independent assessment procedures, as well as public comments, again local government had no problem with the process. When the DEC and APA weakened the Adirondack Park State Land Master Plan, for the first time in its 50-year history, for the Essex Chain Lakes Primitive Area, local government supported that too.
But when the system could not be rigged and the decision was taken out of the hands of the powerful and was put into the hands of independent judges on three different courts, where 8 of 12 judges found that the state violated the Constitution, then local government leaders have some really big complaints.
My golden rule as an advocate is to always say the same thing in public that I say in private and to always say the same things in private that I say in public. It would be truly wonderful, and a big step forward, if all other players in the Adirondacks did the same thing.
It’s time for a different way of doing business in the Adirondack Park. Perhaps recent events will inspire Team Cuomo and their Adirondack allies to change their ways and embrace openness and transparency. Cutting deals in secret isn’t working.
Seven, Wells complains about the definition of the word timber. Wells does himself and his cause no good with this debunked argument. Wells needs to read the trial record. He needs to read Adirondack history. He needs to read dictionary definitions from the 1890s. He needs to read the debate over forever wild from the 1894 Constitutional Convention where the words trees and timber and wilderness were used interchangeably. Timber in the historical context in the 1890s was defined as wooded lands, the whole forest. It was used by the framers as means to protect the whole forest and go beyond protections simply for trees.
The DEC and APA staked their whole case on a modern and narrow definition of the word timber. When the historic record clearly showed that the actual meaning of the word timber to the framers of Article 14 was something much more than simply big trees of commercial value, the state’s case became a house of cards and fell apart. Why is Wells doubling down on the state’s failed historic interpretation?
The State Supreme Court sided with Protect the Adirondacks on the meaning of the word timber and about what a tree is. The Appellate Division, Third Department sided with us on these two things too. The Court of Appeals, the state’s highest court, did not address the issue specifically but cited the fact that 25,000 trees were destroyed as part of its rationale for finding Class II trails illegal. The lower courts had established a firm factual record that 25,000 trees were destroyed by using a consistent and historic standard for the meaning of timber and for determining that a tree was a tree at 1 inch diameter at breast height or bigger.
Wells’ talk about “seedlings” is a total red herring. The trial record was clear that Protect the Adirondacks was never talking about “seedlings” and we went out of our way in trial testimony to show that “seedlings” were not part of the 25,000 trees cut down in the first 27 miles of Class II trails. There are simply no “seedlings” that grow up in a matter of months to a tree over 1 inch diameter measured at 4.5 feet off the ground. Wells is playing games here to try and muddy the waters. Wells can gripe about the decision all he wants – there are lots of US Supreme Court majority decisions that I gripe about – but deliberately distorting the decision with factual inaccuracies and misleading statements does nobody any good.
Eight, Wells talks about the “benefits” to the Forest Preserve from the DEC supposedly closing “interior” snowmobile trails and building new Class II trails on the periphery of a Forest Preserve unit. Again, Wells would benefit from reading the trial record and also getting out in the field.
During the trial in 2017, Protect the Adirondacks presented an analysis of every mile of these “closed” trails in the Moose River Plains Wild Forest Area and concluded that there was no ecological benefit to the Forest Preserve when compared with the damage caused by a brand new 12-mile-long, extra-wide Class II trail.
The snowmobile trails in the Moose River Plains that were “closed” included some “trails” that were overgrown and had not been used by anybody for anything for decades. The environmental benefit from these trail closures happened long ago. Other “trails” that were “closed” to snowmobiles remained open for public or administrative motor vehicle use, so there was no environmental benefit to the Forest Preserve from them. Other trails that were “closed” to snowmobiles remained open for hiking and mountain biking, but were dead-end trails that did not connect communities and had long since stopped being groomed for snowmobiling, so they were snowmobile trails on paper but not in fact. Two other trails “closed” to snowmobiles at Ice House Pond and Helldiver Pond were transformed and rebuilt to provide universal accessibility for the disabled.
Nine, Wells writes that “The Community Connector Trails agreement would have helped turn the page on decades of Adirondack Region job losses brought on by industry disinvestment and Forest Preserve expansion.” The reality is that every community in Hamilton County is caked with signs right now saying HELP WANTED, a trend that is mirrored throughout Rural America. Across the U.S., there are more jobs than people. This is especially true in Rural America, and it’s true right now in the Adirondacks.
When Wells talks about “decades of job losses” he’s making stuff up. While clinging to the notion that Forest Preserve acquisition has caused a loss of jobs, local government has never presented a sliver of data to back up their claims. Our long-term study on population and economic data found that the number of jobs in the Adirondacks had increased from 1970 to 2010.
Ten, Wells asks “Who benefits when a group tears up a good-faith agreement, but only after they got everything they wanted?” I know we’re all transfixed with the summer Olympics right now, but it’s true mental gymnastics for Wells to allege that Protect the Adirondacks could tear up an agreement that we never had a hand in making. How is it a good faith agreement when so many were excluded? By definition a secret agreement that excluded so many is hardly something that is made in good faith.
Eleven, let’s talk about who got what they wanted. For Wells to argue that Protect the Adirondacks somehow got everything we wanted is fantasy. There was plenty about the overall Finch lands deal that we had to swallow, that we strongly opposed. From the floatplane rights being given to local governments to the buildings and bridges and miles of motor vehicle roads opened, to the weakening of the State Land Master Plan, there’s a lot we objected to.
Yes, there is new Wilderness in the Hudson Gorge and around Boreas Ponds, and, yes, the Essex Chain Lakes are motorless, but had we truly gotten our way, suffice to say there would be plenty of things different.
Twelve, last, let’s talk about the need for “reflection.” Wells calls on Protect the Adirondacks to reflect on our legal challenge to uphold forever wild. Fair enough. Indeed, there are many hazards with legal challenges. That’s why we rarely undertake them.
In exchange, though, we earnestly hope that Brian Wells embarks on some reflection too, since his piece in the Times Union and Adirondack Almanack shows that he has not done his homework and relies on falsehoods and fabrications to support his narrative.
It’s time not only for state officials and state agencies to get serious about upholding Article 14, but also for the Cuomo Administration, its leaders at the DEC and APA, and its allies in local government and across the Adirondacks, to move decision-making out of the shadows, out of secret hand-picked groups, and into open, public, transparent forums where a diversity of voices are welcomed.
Sunlight will produce better results for the communities, residents, visitors, and the environment of the Adirondack Park and the forever wild Forest Preserve.
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