Thursday, June 15, 2017

Adirondack Wild: ‘Oppose A Constitutional Convention’

Article 14, Section 1 New York State Constitution Forever Wild clauseAs this year’s legislative session winds down, more public attention is focused on November’s vote whether or not convene a state constitutional convention in Albany.

As Article XIV – the “forever wild” clause –  is of particular relevance to both the Adirondack and Catskill Park regions, I offer the following resolution approved by Adirondack Wild: Friends of the Forest Preserve this spring.

Adirondack Wild: Friends of the Forest Preserve hereby resolves to:

  • oppose a constitutional convention in New York State, and;
  • encourage voters to vote “NO” in November 2017 on the question of whether there shall be a convention to revise the State Constitution.

 

The Question: On November 7, 2017 New York voters will be asked the question: Shall there be a constitutional convention to revise the state constitution and amend the same? Adirondack Wild: Friends of the Forest Preserve will encourage a “No” vote.

Forever Wild: Our “forever wild” 3 million acre Forest Preserve in the Adirondack and Catskill Parks rests upon the enduring strength of NYS Constitution’s Article XIV, Section 1. No other state in the country and no other government on earth mandates that so much of their public forests shall be “forever kept as wild forest lands.”

Adirondack Wild: Friends of the Forest Preserve considers it imperative that each generation vigorously defend the forever wild mandate, without which the Adirondack and Catskill Parks would be severely cut over, developed and fragmented. The biotic integrity, watershed, recreational and other unique and irreplaceable values of these great forest regions must be retained and embraced and, wherever possible, strengthened.

 Commercial Interests Still Oppose Forever Wild: There always have been and remain politically motivated and commercial interests in this State that would weaken or do away entirely with Article XIV Section 1 – if they could. Some of these interests are powerful. A key question before us is whether we can trust that 204 elected and appointed delegates would retain Article XIV Section 1 intact.

Deliberation is Essential: In considering this question, Adirondack Wild bears in mind the alternative method to amend the State Constitution achieved through the more deliberative, annual legislative process. Any amendment or exception to forever wild (or any other article) should receive careful deliberation and debate over a significant length of time and statewide in order to ensure that exceptions to forever wild are narrow in scope, small in size, serve a very clearly justified public purpose, and are not undertaken to benefit commercial, corporate or parochial interests.

Between 1895 and 2013, Article XIV Section 1 has been amended to authorize 19 exceptions – such as the building of I-87 Northway, the construction of Whiteface, Gore and Belleayre Ski Centers, the safety of state highways bordering on Forest Preserve, and for many relatively small land exchanges. Each and every amendment must be considered and approved by two separately elected State Legislatures, and then survive a vote of the People in referendum. This deliberative process gives the public several years at minimum to debate an amendment.

In 2016 the importance of extensive deliberation was underscored when, after months of discussion limited to the NYS Senate, the NYS Assembly introduced important amendments to a public health and safety land account authorizing limited but vitally important utility installations and highway and bridge safety improvements along local Adirondack and Catskill highways bordering on the NYS Forest Preserve.

Studies are Needed: Moreover, for each amendment sufficient time must be granted – over the course of several years in some cases – to study the lands in question and conduct natural resource, wilderness and other assessments to inform a statewide decision whether or not to amend Article XIV.

Haste must be avoided: Over 150 amendments have been proposed since 1895 and due to the deliberative nature of this process and great public concern for Article XIV the vast majority have been rejected by the State legislature or by the voters.

By contrast, delegates at a constitutional convention could take as little as one day to consider, debate and potentially approve one or more amendments to Article XIV before that amendment or package of amendments was sent to the people for a vote. Even a few months of convention deliberation is insufficient to ensure that amendments are sufficiently studied and debated.

Cost of a Constitutional Convention: The cost of campaigning, electing and convening 204 delegates at a Constitutional Convention over the course of two years (starting from a 2017 vote, concluding with a 2019 Convention and Referendum) would be significant – conservatively estimated in the hundreds of millions of dollars when factoring in delegate campaigning, elections, advertising, promotion, a convention itself, and the subsequent ballot questions.

On balance, while there are many important societal reasons to amend the New York State Constitution, and while there may be in fact be ways to improve on Article XIV, Sections 1-5 without in any way weakening its mandate, the legislative process for achieving this is preferable to a convention process because of the time the State Legislature provides for public consideration, study, debate, deliberation and improvements of any proposed amendment.

_________________________________________________________________

APPENDIX 1

Article XIV, the Conservation Article in our State Constitution, directs in Section 1 that the Forest Preserve shall be forever kept as wild forest land and cannot be leased, sold or exchanged, or taken by any corporation, public or private. Section 1 is the bulwark protection behind the “forever wild” Forest Preserve in the Adirondack and Catskill Parks. Its broad mandate – 54 words – has never been amended since first approved in 1894. However, 19 exceptions to that Section 1 mandate for site specific development activities or land exchanges have been approved by the voters since 1895, the latest in 2013.

Article XIV Section 2 contains what remains of a 1913 amendment to allow 3% of the Forest Preserve to be used for municipal water supplies and for the State canal system.

Article XIV Section 3 allows, among other things, parcels of Forest Preserve 100 acres or smaller outside of the Adirondack and Catskill park boundaries to be rededicated to other purposes, or in extreme cases sold.

Article XIV Section 4 creates a Nature and Historical Preserve outside of the two parks and directs that it shall be the policy of the state to conserve and protect its natural resources and scenic beauty.

Article XIV Section 5 allows any citizen to sue in the courts to enforce Article XIV by permission of the Appellate Division of State Supreme Court.

APPENDIX 2

Adirondack Wild: Friends of the Forest Preserve’s position regarding amendments to Article XIV (from: Adirondack Park at a Crossroad, A Road Map for Action, 2015)

All future amendments of Article 14 including land exchanges should be narrowly defined, specific in purpose and limited in scope. They must serve a well-documented need for public facilities or public services that cannot be provided in ways other than through an amendment. They should not be for the purpose of benefiting a private or public corporation and should never take public land for corporate or commercial purposes;

►Prior to consideration of first passage in the Legislature (or at a Constitutional Convention), the purpose, scope and public benefits of any proposed amendment to Article 14 should be discussed in public and in advance with legislative sponsors, and within the DEC Forest Preserve Advisory Committee;

► Public hearings should be scheduled across the state to discuss and debate the merits of amendment proposals prior to a statewide referendum;

►Prior to consideration of second passage, all lands affected by the amendment through a land swap, for example, should be competently surveyed and assessed by a team of scientists whose reports should be made public and be provided in a timely manner prior to consideration by the Legislature or a Constitutional Convention;

►If the amendment takes the form of a land exchange, it should be determined that the lands to be received for the Forest Preserve are actually available for transfer into the Forest Preserve, and be greater in acreage and in ecological, recreational or stewardship value than the lands to be removed from the Forest Preserve;

►During consideration of second passage, the important details of implementing legislation should accompany a constitutional amendment joint resolution; these details should be carefully considered in any vote on second passage.

► The State should never again attempt to auction off State Land in the Adirondack and Catskill Parks to the highest bidder. If there is ever any doubt about Forest Preserve status or the constitutionality of any action, an opinion by the State Attorney General should be sought.

APPENDIX 3

For Immediate Release

May 9, 2017

Contact: David Gibson or Dan Plumley

(518) 469-4081 or (518) 524-7771

Adirondack Wild to Oppose a Constitutional Convention

Will urge a “No” vote on the question of whether or not to hold a convention

At its spring board meeting, the nonprofit organization Adirondack Wild: Friends of the Forest Preserve resolved to urge voters to vote “no” on the question of whether or not to hold a constitutional convention. That question will appear on the November 7 ballot.

“We’ve concluded that New Yorkers should not entrust our unique, 125 year-old “forever wild” constitutional protection of the Adirondack and Catskill Forest Preserve to 204 politically well-connected delegates meeting for a brief period of time in Albany,” said Adirondack Wild’s David Gibson.

“While we very much entrust Article XIV to the people, the rules governing election of delegates to a convention favor the well-connected and the well-funded who may not appreciate or be inclined to enthusiastically support the vital watershed and other non-commercial values of the Forest Preserve in both the Adirondacks and the Catskills,” he said.

“In reviewing such an important public policy as Article XIV, haste should be avoided,” said Adirondack Wild’s Dan Plumley. “Sufficient public deliberation and debate over several years is essential to analyze any amendment or exception to our ‘forever wild’ Forest Preserve. A convention does not allow nearly enough time for that to take place.”

“New Yorkers who honor and safeguard Forever Wild should vote ‘no’ on a convention and continue to work the legislative process whenever amendments may prove absolutely necessary,” he added.

“New York already has a process for amending Article XIV when deemed necessary and in the public interest,” said Adirondack Wild’s Vice Chair Chris Amato.  “In stark contrast to a constitutional convention, the current amendment process requires passage by two successive legislatures followed by a public referendum.  This type of transparent and considered process is far superior to the one-shot political wheeling and dealing that would characterize a constitutional convention.”

There are also concerns about the cost of a convention. Adirondack Wild estimates that the cost could be very high, in the hundreds of millions of dollars.

“That cost cannot be justified given that constitutional questions and amendments can be considered through the annual legislative process,” Amato added.

Roughly 150 amendments have been proposed since 1895, but due to the public’s strong support for Article XIV most have been rejected in the State Legislature or at the polls. There have been just 19 amendments to Article XIV, Section 1’s directive that the lands constituting the forest preserve “shall be forever kept as wild forest lands,” and “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.”

For example, amendments have authorized the construction of the Adirondack Northway and of Gore, Whiteface and Belleayre ski centers. These and the many land exchanges have all been approved through the multi-year legislative amendments, not through a convention. There are approximately three million acres of Forest Preserve inside the Adirondack and Catskill Parks, and a much smaller amount outside the Parks but within defined Forest Preserve counties. All Forest Preserve is fully taxable. Annual tax payments support small towns, villages and school districts in the Adirondacks and Catskills.

Adirondack Wild’s policy is that amendments or exceptions to “forever wild,” including land exchanges should be narrowly defined, specific in purpose, limited in scope and serve a documented need for public facilities or public services that cannot be provided in ways other than through an amendment. Amendments should never be for the purpose of benefiting a private or public corporation and should never take public land for corporate or commercial purposes.

Further, Adirondack Wild expects that scientific surveys be done on Forest Preserve affected by a proposed amendment to determine if the lands harbor valuable natural resources or wildlife habitats. Those scientific surveys require time to complete and the results considered, considerably more time than a constitutional convention would allow.

“On balance, the legislative process is much preferred to a convention because of the time two legislatures allow to consider, deliberate, study and decide if exceptions to our irreplaceable Forest Preserve are in the public’s interest,” Adirondack Wild’s Gibson concluded.

Adirondack Wild: Friends of the Forest Preserve is a not for profit, membership organization which advances New York’s “Forever Wild” legacy and Forest Preserve policies in the Adirondack and Catskill Parks, and promotes public and private land stewardship consistent with wild land values through education, advocacy and research. For more information, click here.

[SR1]Be consistent in spelling out “Article” and also in using either XIV or 14 (Appendix 2)

Photo: Article 14, Section 1 New York State Constitution Forever Wild clause.


David Gibson

Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for nearly 25 years, much of that time as Executive Director of the Association for the Protection of the Adirondacks and then as first Executive Director of Protect the Adirondacks.

During Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history.

Currently, Dave is a partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.




29 Responses

  1. Paul says:

    This is a very one issue view of the matter.

    You say these few words on everything else:

    “On balance, while there are many important societal reasons to amend the New York State Constitution”

    Then thousands of words on your particular issue of interest.

    I agree that for article 14 a convention may not be ideal, but given the ethics reform that we need I am inclined to vote yes.

    It may actually be the best way to deal with the over influence of the commercial interests that you are concerned about.

  2. Bruce says:

    “Legislative process preferable” How long has the rail/trail story been going on? Is this what you mean by the legislative process is preferable. While movement has occurred in the rail/trail debate, there are still those who believe the compromise solution (part rail, part trail) is no solution at all, and are still fighting this tooth and nail. How long must New Yorkers wait for something concrete to be done? How much has this back and forth wrangling cost the taxpayers?

    • Boreasfisher says:

      Sure, it is never ending. That’s called democracy, the noisy and frustrating will of the commons.

      If the cure is to eliminate legislative process, count me out. Rather we should be doing exactly what Wild is advocating, encouraging a process that is deliberative, properly researched, and responsive to the considerations of an informed (not inflamed) public.

      I for one am grateful for their efforts to articulate publicly a well considered point of view on this subject.

      • Paul says:

        A constitutional convention is within the confines of the “democracy”. To suggest otherwise is not accurate.

      • Bruce says:

        No one is suggesting the “legislative process” be done away with. There is a big difference between a process which moves along, eventually reaching a reasonable conclusion, and keeping it going for the sake of “if I can keep this going, I might win.”

        Paul is correct, constitutional conventions are a very real part of the legislative process and Democracy itself.

        Of course if we feel threatened by some aspect of it, we should set it aside, similar to what was suggested concerning the Electoral College after the last election. You don’t set the Constitution aside because it doesn’t meet your needs at any particular time.

        • Boreas says:

          How long should the discrepancies between the DEC and the popular vote continue to be simply ignored? The reason it keeps being brought up is because it is questionable whether it is serving the will of the voters.

          The authors of the US constitution were able to throw together a constitution in a fraction of the time than a single amendment takes today. They had to start somewhere, but I believe most of them realized it was imperfect and would be massaged over time. I believe Jefferson even suggested it be scrapped (gasp!) at regular intervals if it didn’t seem to be serving the people.

          I believe criticism of any constitution is a healthy thing. Whether citizens (real ones, not just ‘corporate’ citizens) act on these problems is going to depend on if they can look up from their TV and smartphones long enough to have a meaningful debate with people harboring different opinions and play an active role in government.

          • Bruce says:

            Boreas,

            Yes, we can question the Constituti8on. It’s been done over 11000 times since the US Constitution came into being.

            What I’m saying is we also have to question the motives of those who suggest bypassing a long-held constitutional process of potentially great import to all the people of New York, on a single issue. I have a feeling there is a lot more at stake here than the Forever Wild clause.

          • JohnL says:

            Re: The Electoral College. The electoral college is the only thing keeping us from being governed by a few heavily populated cities and states. Think about it. If the Presidency is an ‘automatic’ based on how these few states and urban centers vote, then the House and Senate would be rendered almost helpless. The Founders may have thrown it together in a summer, but to my way of thinking, they knew what they were doing. BTW, criticism is welcome at all times in this country (and state). In fact, it’s needed in a healthy Republic.

            • Boreas says:

              “The electoral college is the only thing keeping us from being governed by a few heavily populated cities and states.”

              The EC only picks the president. The president alone doesn’t govern the country – but is only a part of one branch of government. There are red cities and blue cities across the country. States with high populations have more electoral votes. In presidential elections everyone’s vote should carry the same weight as far as I am concerned.

          • Paul says:

            Public comment is not the “popular vote”.

  3. M.P. Heller says:

    This piece reads like what it is. Special interest propaganda cooked up by a one trick pony. Evidently the author lives under a rock and hasn’t come to an understanding that there is a global anti-establishment movement underway which will make it easy for voters to convene a convention this November. Perhaps rather than focus on the extremely narrow and self-serving view presented here, WILD should be focusing it’s efforts on lobbying for INCREASED protection for the forest preserve at the convention instead of spreading fear of democracy.

    Terrible article Comrade Gibson. Shame on you.

    • Jim S says:

      That seems to be an awfully harsh reaction to an opinion piece from someone who’s job is to advocate for the Adirondacks. In terms of what a convention’s impact might mean for the forest preserve, I wholeheartedly agree with Mr. Gibson.

      • M.P. Heller says:

        Well now you know my opinion of Dave’s opinion.

        • Jim S says:

          Do you oppose “Forever Wild” or do you really want a constitutional convention?

          • M.P. Heller says:

            Everyone wanting a Constitutional Convention is not anti Forest Preserve. Saying that we can’t possibly afford to hold a Constitutional Convention because of the potential risks to the Forest Preserve is a pedantic red herring. Totally obtuse thinking.

          • Bruce says:

            Jim S,

            “Do you oppose “Forever Wild” or do you really want a constitutional convention?”

            Couching things in these kind of either/or terms is a way of trapping people, and is best not answered. The truth offers way more possibilities than this kind of question leads us to believe.

            Let’s see if I have this straight: delegates at a Constitutional Convention come up with proposals for new amendments or changes to amendments; then these proposals are put to the voters (the people). It was suggested that the “will of the people” will somehow be subverted if there is a CC. How is that possible if the voters have the final say?

  4. Paul says:

    “the Forest Preserve shall be forever kept as wild forest land and cannot be leased, sold or exchanged, or taken by any corporation, public or private.”

    Curious this says that FP land cannot be “sold, leased, exchanged, or taken” – BY…

    This reads – sold by

    Why does this not read – TO for “sold”? Might need to fix that? For a sale this law reads that a company cannot be the seller of FP lands. Why could they not be a buyer given this wording?

    Should read – sold to

    • Paul says:

      I guess perhaps it covers just the taking?

    • Peter says:

      Paul:

      You have not quoted the provision accurately. You left out a word, and by doing so changed the meaning of the text you quoted.

      At the risk of sounding a bit pedantic, here’s the way I think it should be read. The text of the second sentence of Article XIV, as shown in the copy attached to the article is “They [the forest lands referred to in the first sentence] shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor . . .” You left out the word “be” before “taken”. There are two distinct clauses and the addition of the word “be” makes that clear.

      The first clause says that the forest lands shall not be leased, sold or exchanged. That restricts actions by the state, and it does not limit the prohibition to sales to a corporation. It would equally cover a sale to an individual, a church, a town, or any other entity that one could imagine.

      The second says the forest lands may not be taken by any corporation, public or private. Unlike the first clause, this one does focus on the recipient of the lands, and expressly excludes corporations. I am not sure why, but it does.

      The word “by”, on which you have focused, only modifies the verb “taken” and not the earlier verbs “leased, sold or exchanged”.

  5. Dave Mason says:

    If there is a Constitutional Convention, I doubt the Adirondacks will be the issue that attracts voters. The primary issue for voters will be the ongoing saga of ethics troubles and corruption in State legislature.

    A convention will likely be pitched to voters on issues of ethics, corruption and reforms in Albany. It is the only way for voters to work on this issue without the legislature involved. The lack of action on these issues after the conviction of the leaders of both the Assembly and the Senate is too much to ignore.

    • JohnL says:

      Right on Dave Mason. The issues will (and should be) ethics, corruption, and my personal favorite, term limits. In the grand scheme of all things political needing immediate attention in NY, the Adirondacks would be way down on the list.

  6. Avon says:

    I couldn’t agree more with Dave Gibson about preserving Article 14.

    But I agree with Paul for once, in that we need to call the constitutional convention.
    We only get one chance per decade to call a constitutional convention, and some issues cry out desperately for one.

    Paul cites ethics standards, the regulation of which I don’t think belongs in a Constitution … but then NYS’s constitution is a fat and encyclopedic document that already micro-manages an appalling range of stuff. The convention can’t possibly get to agreement on more than a small number of issues, and I don’t think there’s a lot of traction right now for un-Greening America and gifting to corporate interests.

    My issue is the byzantine and gridlocked court system. Even Hamilton County (pop. 3000), with a courtroom/chambers (a workroom area in a government office in Indian Lake) that’s required to be a family court, criminal court, supreme court, district court, county court AND probate court, sometimes all with just one judge, which could often be asking for trouble. Here in Kings County (pop. 2.8 million) we have 100-200 judges for that, but the turf issues are wasteful and toxic, and legal pitfalls for the unwary, which is just about everyone. I wrestle with them every day. Every other county has both those problems to some degree. The state’s court system and both political parties are in general consensus as to what to do about it. We need the constitutional convention to get it done.

    David Gibson’s piece is our primer and resource for defending Forever Wild if the need arises at a convention. Let’s not be overly paranoid/pessimistic as to assume it’ll be “all about us” as opposed to the short list of purposes the convention proponents have on their agenda. Let’s go for the good.

  7. Merry says:

    I’ve long considered any constitutional convention to be quite risky. It makes every part of a constitution vulnerable to change. Meanwhile, there is very little that cannot be addressed legislatively. Therefore, considering changing the NYS constitution puts so much at stake and potentially in jeopardy, I would argue and vote against it, most especially in the current politically charged environment. Furthermore, I very much fear Gov. Cuomo’s intentions regarding the Forever Wild protections of our treasured park.

    • Boreas says:

      I admittedly don’t know much about the NYS constitutional conventions. Perhaps these conventions would be a lot less risky if they had a stated purpose and agenda – which would leave other issues out of the discussion and safe. I guess it would be more like an amendment as opposed to a power grab once the lock is removed from the box.

      • Avon says:

        Boreas, almost no one actually does “know much about the constitutional conventions”! There hasn’t been any in several decades.
        It’s not like a referendum to approve/reject a specific constitutional amendment, the text of which is final months before the vote. It really does open the convention floor to any agenda items, to competing proposals, and to counter-proposals from the floor regarding any issues offered in advance. (This year, I’ve noticed developers’ or others’ wishes to weaken “Forever Wild,” and also the statewide bipartisan organizations that have developed a Courts restructuring proposal.) As with any Legislative process to enact statutes – which such a convention isn’t! – there are advantages as well as disadvantages to announcing an issue and proceeding directly to an up-or-down vote on it.

        What’s on the ballot this fall, as required every 10 years by the State constitution, is an invitation to either hold such a constitutional convention, or not. We’ll all vote Yes or No. The great majority who don’t understand the invitation are likely to just vote No, which is why there hasn’t been a convention in so long.
        And we thought it was tough to get people to understand whether Yes or No on the infinitely more specific Forever Wild “land swap” type proposal a few years ago would be voting for wollastonite mining in Lewis! My own brother voted for the proposal to add new Preserve land, not realizing what would happen to the swapped-out Preserve land … and he had made an effort to study it and vote for Forever Wild. (At least, in a Convention, tricky language can be kiboshed or at least explained.)

    • Bruce says:

      Merry,

      I’m curious…you seem to be saying that the current politically charged environment is something you don’t like, yet you seem to be in favor of these same politicians making long-term policy legislatively (which can be changed at a later date by them, and generally without a public vote). Constitutional policy is much more difficult to change.

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