if yer not forest,
yer aginst us
Bruce Kershner
Ancient Forest Activist
Vanishing Forests

Bruce S. Kershner
heritage tree
preservation and protection act

an act proposed to the New York State Senate: S4637

introduced April 19, 2007

Bruce S. Kershner, who passed away in February, 2007, was a staunch advocate of our remaining old growth forests. He discovered over 300 old growth forests across the northeast, where no one believed they still existed. It is appropriate to recognize Mr. Kershner's work, with other advocates, to preserve and protect these remaining forests, including the Zoar Valley in Western New York.

S4637  RATH
Environmental Conservation Law
TITLE.... Provides for the preservation and protection of heritage trees

Add Art 9 Title 16 SS9-1601 - 9-1605, En Con L; add S97-hhhh, St Fin L
Provides for the preservation and protection of heritage trees;
includes definitions;
prohibits removal of heritage trees;
provides for preservation and protection assistance;
creates violations and penalties;
applicability and enforcement;
and creates the heritage tree preservation fund.

2007-2008 Regular Sessions
April 19, 2007

read twice and ordered printed, and when printed to be committed to
the Committee on Environmental Conservation

AN ACT to amend the environmental conservation law, in relation to the
Bruce S. Kershner heritage tree preservation and protection act; and
to amend the state finance law, in relation to creating the heritage
tree preservation fund

The People of the State of New York, represented in Senate and Assembly,
do enact as follows:

1 Section 1. Short title. This act shall be known and may be cited as
2 the "Bruce S. Kershner heritage tree preservation and protection act".
3 § 2. Legislative findings and declarations. The legislature hereby
4 finds and declares: (a) Most of New York's original old-growth forests
5 have been cut down. (b) Currently, no state or federal statute bans the
6 cutting of most old-growth trees in the state of New York. (c) New
7 York's remaining old-growth trees are a unique natural treasure. (d)
8 Individual old-growth trees are building blocks for restoring natural
9 forest structure and maintaining ecological diversity. (e) People from
10 all over the world enjoy the natural beauty of New York, and we should
11 promote and protect our heritage of old-growth trees, for our children
12 and the economic benefit to our state. (f) Whenever appropriate funding
13 sources are available, acquisition of old-growth forests from willing
14 sellers should be a priority for the office of parks, recreation and
15 historic preservation and other public agencies with land conservation
16 responsibilities, so that they may be protected for their environmental,
17 recreational, educational, and aesthetic values and for the enjoyment
18 and appreciation of present and future generations of residents and
19 visitors. (g) Each old-growth tree, living since the early colonial
20 presence in our state, has aesthetic and historic significance, often
21 providing significant benefits to land, air, water, flora, fauna, and
22 noise reduction. (h) The preservation and maintenance of old-growth

S. 4637 2

1 trees, native vegetation, and wildlife on forest land provide a biologic
2 reserve, and provide benefits to the biological diversity, resilience,
3 and productivity of forest land. (i) The people of the state of New York
4 encourage counties and cities across the state to preserve old-growth
5 trees within their jurisdictions. (j) The people of the state of New
6 York request that Congress, all federal agencies, and federal land
7 managers extend at least the same protections to old-growth trees on
8 federal lands in New York that this measure extends to old-growth trees
9 on nonfederal land.
10 It is the intent of the legislature that this act be construed in
11 accordance with the following primary objectives: (a) To protect old-
12 growth trees in the state of New York, in the interest of heritage pres-
13 ervation and ecosystem conservation, for the benefit of present and
14 future generations. (b) To maintain the ability of ancient and old-
15 growth trees to sequester carbon, thereby helping to avoid an increase
16 in the level of greenhouse gases in the atmosphere. (c) To maintain the
17 ability of ancient and old-growth trees to transpire water and to
18 provide shade and large woody debris to streams, rivers, and creeks. (d)
19 To provide habitat for endangered and threatened species that are
20 dependent on or associated with old-growth trees. (e) To encourage, as
21 appropriate, the retention of old, large, dead, dying or deteriorating
22 trees that provide necessary habitat for wildlife and nutrients essen-
23 tial for forest health, and retain moisture that enhances water quality
24 and quantity. (f) To ensure that timber operations and other operations
25 near heritage trees are modified and conducted to be consistent with
26 this act and to protect the integrity of the heritage trees.
27 § 3. Article 9 of the environmental conservation law is amended by
28 adding a new title 16 to read as follows:
29 TITLE 16
31 Section 9-1601. Definitions.
32 9-1602. Removal prohibited.
33 9-1603. Preservation and protection assistance program.
34 9-1604. Violations and penalties.
35 9-1605. Applicability and enforcement.
36 § 9-1601. Definitions.
37 The following definitions apply to this title:
38 (a) "Emergency" means a sudden, unexpected occurrence demanding imme-
39 diate action to prevent or mitigate loss of, or damage to, life, health,
40 property or essential public services. "Emergency" may include fire,
41 flood, earthquake, or other soil or geologic movements, as well as riot,
42 accident or sabotage.
43 (b) (1) (A) "Heritage tree" means an old-growth tree in an old-growth
44 forest, of a species listed in paragraph two of this subdivision, and
45 that either: (i) has a stem that existed in 1850; or (ii) has at least
46 the minimum diameter at breast height, measured outside the bark as
47 specified in such paragraph two for that species. (B) "Heritage tree"
48 also includes all stems of multistemmed trees in an old-growth forest,
49 of a species listed in such paragraph two, that either: (i) have a stem
50 that existed in 1850; or (ii) for which the sum of the cross-sectional
51 areas of all of the stems at breast height, measured outside the bark,
52 is equal to or greater than the area of a circle with the diameter spec-
53 ified in such paragraph two for such species. The "basal areas" and
54 "point counts" of heritage trees shall be limited to the value of the
55 minimum diameter at breast height for the species shown in paragraph two
56 of this subdivision.

S. 4637 3

1 (2) The minimum diameter at breast height is the following for the
2 following tree species:
3 (A) Eastern hemlock: 28"
4 (B) Eastern red cedar: 23"
5 (C) Eastern white pine: 40"
6 (D) white oak: 36"
7 (E) red oak: 45"
8 (F) swamp white oak: 35"
9 (G) chinquapin oak: 35"
10 (H) sugar maple: 32"
11 (I) red maple: 32"
12 (J) tulip tree: 48"
13 (K) sycamore: 48"
14 (L) American beech: 33"
15 (M) black cherry: 36"
16 (N) basswood: 32"
17 (O) yellow birch: 29"
18 (P) white ash: 45"
19 (Q) bitternut hickory: 32"
20 (R) black gum (tupelo): 20"
21 (S) black walnut: 27"
22 (T) bur oak: 39"
23 (U) hop hornbeam (ironwood): 13"
24 (V) Eastern cottonwood: 56"
25 (W) black oak: 45"
26 (X) chestnut oak: 28"
27 (Y) black birch (sweet birch): 28"
28 (Z) shagbark hickory: 32"
29 (AA) pitch pine: 14"
30 (BB) American holly: 15"
31 (CC) cucumber magnolia: 28"
32 (DD) flowering dogwood: 14"
33 (EE) sassafras: 20"
34 (FF) scarlet oak: 28"
35 (GG) red spruce: 24"
36 (HH) red pine: 24"
37 (II) white cedar (arborvitae): 23".
38 (c) (1) "Old-growth forest" means a convergence of several different,
39 yet interrelated, criteria that combine to differentiate old-growth
40 forests from other forested ecosystems. These factors include: an abun-
41 dance of late successional tree species, at least one hundred eighty to
42 two hundred years of age, in a contiguous forested landscape that has
43 evolved and reproduced itself naturally, with the capacity for self
44 perpetuation, arranged in a stratified forest structure consisting of
45 multiple growth layers throughout the canopy and forest floor, featur-
46 ing: (A) canopy gaps formed by natural disturbances creating an uneven
47 canopy; and (B) a conspicuous absence of multiple stemmed trees and
48 coppices. (2) Old-growth forest sites typically are: (A) characterized
49 by an irregular forest floor containing an abundance of coarse woody
50 materials which are often covered by mosses and lichens; (B) show limit-
51 ed signs of human disturbance since European settlement; and (C) have
52 distinct soil horizons that include definite organic, mineral, alluvial
53 accumulation, and unconsolidated layers. The under story displays well
54 developed and diverse surface herbaceous layers.
55 (d) "Breast height" means the height at which a tree was cut from the
56 stump if cut, or four and one half feet above the ground on the side

S. 4637 4

1 adjacent to the highest ground level, whichever is closest to the
2 ground.
3 § 9-1602. Removal prohibited.
4 (a) Except as authorized by this section, the following apply: (1) A
5 person shall not cut or cause a substantial probability of significant
6 harm to a heritage tree in this state. Timber and other operations shall
7 be modified and conducted to be consistent with this title and shall
8 protect the integrity of heritage trees. All forest practices, where
9 heritage trees are present, shall demonstrably protect the canopy,
10 trunk, roots, and wind-firmness of such trees.
11 (2) A person shall not use a heritage tree in a manner that signif-
12 icantly harms such tree.
13 (3) The commissioner shall not adopt a regulation pursuant to this
14 section or other provision of law that requires or authorizes the
15 cutting of, or significant harm to, a heritage tree.
16 (b) Prior to a pre-harvest inspection, all heritage trees within a
17 logging plan shall be personally marked for retention by a registered
18 professional forester.
19 (c) A heritage tree may be cut or harmed if it is necessary in an
20 emergency.
21 (d) A heritage tree may be cut or harmed under any of the following
22 conditions:
23 (1) The heritage tree poses an imminent danger of falling into a util-
24 ity line or facility.
25 (2) The tree poses an imminent danger to a utility employee or member
26 of the public.
27 (3) The tree poses an imminent danger of falling on a residence,
28 hotel, motel, lodge or other similar place of human habitation, regis-
29 tered historic building, or site of cultural or archaeological impor-
30 tance.
31 (e) Heavy equipment associated with timber operations is excluded from
32 within a horizontal radius of one hundred feet of any heritage tree,
33 except upon permanent roadways in existence on and after the effective
34 date of this title.
35 (f) Roads may be built within a horizontal radius of one hundred feet
36 of a heritage tree only if there is no other feasible routing that
37 avoids greater environmental harm, if the construction, maintenance, and
38 use does not endanger the stability, health, and longevity of one or
39 more heritage trees, and if the road is for the construction and mainte-
40 nance of any of the following:
41 (1) A permanent public road by a government agency.
42 (2) An access way or driveway to reach a government-owned facility.
43 (3) An access to a utility line or facility.
44 (4) A private road or driveway as the sole access to a structure for
45 human habitation.
46 (5) A public fire protection agency community fire break.
47 (g) A heritage tree may be sanitation logged if both of the following
48 criteria are met:
49 (1) A registered professional forester certifies in a form prescribed
50 by the commissioner that the tree is dead or dying.
51 (2) The commissioner concurs with the registered professional
52 forester's certification that there is a substantial likelihood of the
53 spread of disease or insect infestation to surrounding trees if the
54 diseased or infested tree is not immediately removed. If the commission-
55 er concurs with the certification, the commissioner shall sign the
56 concurrence.

S. 4637 5

1 (h) A prescribed burn for the purpose of reducing the risk of harm to
2 a heritage tree due to fire hazard, insects, disease, or invasive
3 species may be conducted at the direction of the governmental agency
4 responsible for fire suppression. Prior to the prescribed burn, accumu-
5 lated fuels shall be manually pulled away from each heritage tree within
6 the anticipated area of the prescribed burn to minimize the risk of harm
7 to the heritage tree.
8 (i) Measures including bracing, tree and limb cabling and guying,
9 cutting away and sealing of infected or infested tissues, balancing,
10 reducing windsail of branches, and applying or injecting protective
11 agents may be performed upon a heritage tree if solely for the bona fide
12 purpose of protecting, enhancing, and extending the wind-firmness,
13 stability, health or longevity of the heritage tree.
14 (j) All environmental documents shall indicate on the face of the
15 document whether a heritage tree is present within the area covered by
16 the environmental document. For purposes of this subdivision, "environ-
17 mental document" means an environmental impact report, non industrial
18 timberland management plan, modified timber harvesting plan, any other
19 timber operations plan, notice of emergency timber operations, other
20 notice of timber operations, plan amendment, categorical exemption
21 filing, or construction, grading or use permit application submitted to
22 a state or local agency.
23 (k) At the direction of an electrical corporation or local publicly
24 owned utility, a heritage tree may be pruned or cut as necessary to
25 comply with an order or tariff of the public service commission, the
26 federal energy regulatory commission, or the department of transporta-
27 tion's office of pipeline safety. In siting a new facility, consider-
28 ation shall be given to the proximity of heritage trees.
29 (l) As minimally necessary to minimize the vertical continuity of
30 vegetative fuels, heritage trees may be pruned from the ground to a
31 height and in a manner to be determined by the commissioner, when part
32 of a bona fide fuel break surrounding a structure for human habitation.
33 The pruning of a heritage tree shall be solely for the purpose of fire
34 threat reduction and be in accordance with a statute enacted, or regu-
35 lation adopted by the commissioner, in implementation of this section.
36 Pruning pursuant to this section may not significantly harm a heritage
37 tree.
38 (m) (1) A person who cuts or directs the cutting of a heritage tree
39 shall file with the commissioner a signed, written notice of cutting a
40 heritage tree, within two working days after the cut. The commissioner
41 shall prescribe the form for the notice, which shall require a
42 description of the location and the reason for cutting the heritage
43 tree. The commissioner shall provide notice of the filing of a notice of
44 cutting a heritage tree to a person who requests the notice in writing.
45 (2) This subdivision does not apply to a firefighter acting within his
46 or her official duties during an emergency, as referenced in subdivision
47 (c) of this section.
48 § 9-1603. Preservation and protection assistance program.
49 (a) An agent of the state who is responsible for allocating moneys,
50 credits, or other benefits for preservation of endangered species and
51 natural lands including, but not limited to, fee title acquisition,
52 conservation easements, purchases, and purchases of development rights
53 and other interests, may provide assistance to owners of heritage trees
54 in obtaining these benefits, if available. The benefits include, but are
55 not limited to, state partnership grants under section six of the feder-
56 al Endangered Species Act (16 U.S.C. § 1535), grants under Title VIII of

S. 4637 6

1 the federal Department of the Interior and Related Agencies Appropri-
2 ations Act of 2001 (Land Conservation, Preservation and Infrastructure
3 Improvement Act, P.L. 106-291), and grants under the federal Land and
4 Water Conservation Fund Act of 1965 (P.L. 88-578), or any successor
5 provisions of law, and moneys in the heritage tree preservation fund,
6 established by section ninety-seven-hhhh of the state finance law.
7 Moneys obtained from these or other sources, for the purpose of carrying
8 out this title, that are not distributed directly to property owners,
9 pursuant to this title, may be deposited into such fund.
10 (b) The commissioner shall spend moneys in the fund for the purchase
11 of fee title or of interests in real property of heritage trees
12 protected pursuant to this title. An interest in real property shall be
13 for a period of time that is not less than the natural life of the
14 heritage trees protected, in order to protect the integrity and value of
15 the heritage tree and to provide habitat for associated wildlife
16 species.
17 § 9-1604. Violations and penalties.
18 (a) (1) A person who performs, conducts, orders, or directs timber
19 operations or other action in violation of this title is subject to the
20 penalties of article seventy-one of this chapter, and an additional
21 civil penalty in an amount that is equal to the greatest of one of the
22 following:
23 (A) The amount of the proceeds, value, or income received or promised
24 in connection with the violation.
25 (B) The amount of the anticipated economic benefit to be derived as a
26 result of the violation, if the amount can be reasonably determined.
27 (C) Three times the fair market value of the tree affected by the
28 violation.
29 (2) Moneys collected from the additional civil penalty authorized by
30 paragraph one of this subdivision shall be deposited in the heritage
31 tree preservation fund, as provided in section ninety-seven-hhhh of the
32 state finance law. In addition to other penalties imposed by law, the
33 court may seize and confiscate the proceeds, value or income from the
34 sale of an illegally cut tree. If an illegally cut tree has not been
35 sold, the court may order the tree to be confiscated and sold. If an
36 illegally cut tree has not been removed from the forest or sold, the
37 court may order that the tree remain in the forest. All proceeds, after
38 actual expenses, from the sale of a tree pursuant to this subdivision
39 shall be deposited in such heritage tree preservation fund.
40 (b) The penalties and remedies of this section are concurrent with and
41 not an alternative to other civil, criminal, or administrative rights,
42 remedies or penalties for that violation.
43 (c) For purposes of this article the time period for commencing a
44 civil action subject to section two hundred fourteen of the civil prac-
45 tice law and rules shall be within three years after the cause of action
46 is deemed to have accrued. The cause of action is not deemed to have
47 accrued until the discovery by the department of the facts constituting
48 the grounds for commencing the action.
49 § 9-1605. Applicability and enforcement.
50 (a) All timber operations shall comply with this article.
51 (b) This title is enforceable by a state or local public officer
52 having appropriate jurisdiction.
53 (c) The commissioner shall adopt regulations that the commissioner
54 considers necessary to implement and to obtain compliance with this
55 title and to protect life, property, and the environment.

S. 4637 7

1 (d) The commissioner shall adopt regulations, initially as emergency
2 regulations in accordance with subdivision (e) of this section, that the
3 commissioner considers necessary to implement and to obtain compliance
4 with section 9-1602 of this title and subdivision (a) of section 9-1604
5 of this title, and to protect life, property and the environment.
6 (e) The emergency regulations adopted pursuant to subdivision (d) of
7 this section shall be adopted in accordance with the rulemaking
8 provisions of the administrative procedure act.
9 § 4. The state finance law is amended by adding a new section 97-hhhh
10 to read as follows:
11 § 97-hhhh. The heritage tree preservation fund. 1. There is hereby
12 established in the joint custody of the state comptroller and the
13 commissioner of environmental conservation a special fund to be known as
14 the "heritage tree preservation fund". Upon appropriation by the legis-
15 lature, the moneys in the fund may be expended by the commissioner of
16 environmental conservation for the purposes of implementing the heritage
17 trees preservation and protection program, as provided in title sixteen
18 of article nine of the environmental conservation law and for the admin-
19 istrative costs of such implementation.
20 2. Such fund shall consist of all moneys transferred to such fund
21 pursuant to law and all moneys required by the provisions of any other
22 law to be paid into or credited to such fund. The fund may accept gifts
23 for deposit. Proceeds from the sale of gifts, identified to support
24 heritage trees, of real property or interests in real property by the
25 commissioner of environmental conservation may be deposited into the
26 fund. The commissioner shall retain for public ownership gifts of real
27 property or interests in real property that would have qualified for
28 purchase under subdivision six of this section.
29 3. All moneys deposited in the fund and income generated by moneys in
30 the fund shall be available for expenditure by the commissioner of envi-
31 ronmental conservation to carry out the purposes of title sixteen of
32 article nine of the environmental conservation law.
33 4. An appropriation or expenditure of moneys in, or income generated
34 by, the fund for a purpose that is not authorized by such title is void.
35 5. Moneys in the fund shall not be appropriated or expended to repay
36 the principal of a bond, to pay the interest on a bond, or to refund a
37 bond. Moneys in the fund shall not be lent or pledged for any purpose.
38 6. Income generated by, and the principal of, the fund shall be
39 expended for the direct and permanent protection of heritage trees, as
40 defined in section 9-1601 of the environmental conservation law.
41 § 5. This act shall take effect immediately.

submitted in accordance with Senate Rule VI. Sec 1

SPONSOR: RATH                
An act to amend the environmental conservation law, in relation to the
Bruce S. Kershner heritage tree preservation and protection act; and to
amend the state finance law, in relation to creating the heritage tree
preservation fund

To protect the remaining old growth trees and forests in New York.

Section 1 - entitles the act as "The Bruce S. Kershner Heritage Tree
Preservation and Protection Act."

Section 2 - sets out legislative findings and declarations.

Section 3 - adds a new Title 16, Heritage Trees Preservation and
Protection, to the Environmental Conservation Law.

Section 9-1601 - sets forth definitions, including the definition of
"heritage trees" and "old growth forest".

Section 9-1602 - prohibits the removal of heritage trees except in
special circumstances, including emergency and safety situations, and
regulates the placement of heavy equipment and roads within proximity to
heritage trees and old growth forests.

Section 9-1603 - creates a Preservation and Protection Program to
protect and acquire old growth forest lands from willing buyers within
such funds as may become available.

Section 9-1604 - sets forth penalties for violations of Title 16, and
allocates the use of funds acquired through enforcement of this Title.

Section 9-1605 - sets forth applicability and enforcement.

Section 4 - adds a new section 97-hhhh to the Finance Law to create the
Heritage Tree Preservation Fund to be under the joint control of the
Comptroller and the Commissioner of Environmental Conservation.

Section 5 - provides that this act shall take effect immediately.

Although most of the primeval forests that once covered New York State,
and indeed the entire Northeast part of our country, were cleared many
years ago as settlers first moved west to develop farms and communities,
there still remain small vestiges of this original forest tucked away in
overlooked corners of our state. Originally most remained uncut because
the terrain where they are located was so challenging that logging was
impracticable and farming impossible. Over the years, owners have
continued to leave these woods essentially untouched either through
oversight or a desire to protect this unique asset. Many exist within
public lands across the state, including the Adirondack Park, Allegheny
Park and Letchworth Park. There are areas of old growth forest across
the state. For example, it is reported that there remain, in small
groves, about 200 acres of old growth forest across Albany, Schenectady
and Saratoga Counties. In Western New York, in addition to smaller
areas, the Zoal Valley, owned in large part by New York State, includes
over 700 acres, If these forests are allowed to be destroyed, they are
probably gone forever, and are certainly not replaceable within our
lifetimes, or the lifetimes of our children, grandchildren and great-

Bruce S. Kershner, who passed away in February, 2007, was a staunch
advocate of our remaining old growth forests. He discovered over 300 old
growth forests across the northeast, where no one believed they still
existed. It is appropriate to recognize Mr. Kershner's work, with other
advocates, to preserve and protect these remaining forests, including
the Zoar Valley in Western New York. It is important for all New Yorkers
that we protect the old growth forests that remain so that generations
to come can appreciate what existed in our state before the advent of
European settlement.

New bill.

To be determined.

This act shall take effect immediately.

Proposal protects NYS' oldest trees
heritage tree legislation
35 species in 400,000 acres
Albany Times-Union, May 11, 2007
help pass this
landmark legislation

make New York
a national leader
in ancient forest protection
and preservation
advocate for
our trees and forests

for more information
Fred Breglia
Landis Arboretum

TERRA: The Earth Restoration and Reforestation Alliancewww.ancientforests.orgupdated 2/3/2009