Tuesday, July 6, 2010

Commentary: Land-Banking is Poor Public Policy

It is purposefully difficult to change our Constitution. In thinking about Article XIV of the New York State Constitution, the “Forever Wild” clause, amendments have to undergo tests in two separately elected legislatures. Ill or hastily considered measures to weaken or dilute its legal mandate to ensure a wilderness forever in the Catskills and Adirondacks are weeded out. Overly complex measures are tied up in committee.

Ultimately, the voting public decides whether an amendment constitutes a significant shift away from the mandate of 1894, which is to make the Forest Preserve safe from exploitation as an enduring wilderness for people and wild nature, and a haven for the ultimate expression of our human partnership with nature.
Time after time, the voters have affirmed “Forever Wild” at the polls, and rejected amendments which would significantly alter its purpose. Voters have ratified defined amendments of limited geographic scope that were viewed to be in the public interest without in any way affecting the broader wild mandate. The Northway, Whiteface and Gore Mountain Ski Centers, even the airport at Piseco, an expanded cemetery in Keene and new groundwater supply for Raquette Lake (and about 25 other amendments since 1895) met with the voters’ approval, and were developed. About ten others were defeated.

North Country Senator Betty Little is the latest in a long line of officials who have chaffed under the need to obtain a constitutional amendment for any activity that would violate Article XIV. Instead, her argument goes, amend “Forever Wild” to create a “land bank.” Each time somebody wished to do something unconstitutional, like mine underneath the wilderness for minerals, some unlucky commissioner would judge it suitable or not, the “bank” would release land, administratively permit the activity to go forward, while other lands would be eventually added to the preserve in compensation. This is the worst kind of policy because in each case it takes responsibility out of the hands of the voters, and gives it to administrators to figure out. Imagine a beleaguered DEC Commissioner, with a short political leash, trying to decide what types, how and where commercial or other development should be permitted on our Forest Preserve. The concept is also bad policy for another reason: each time the voters are asked to decide on a site specific exception or amendment, they are, in effect, asked to reaffirm the overall value of “Forever Wild” in their own lives. A land bank covering multiple, undefined uses of the Forest Preserve would deprive them of that right.

Let’s move to a specific example. A hunting club near Northville, Town of Benson, has long sought motorized access across a Forest Preserve parcel (part of the Silver Lake Wilderness Area) to gain access to their camp beyond. Forest Preserve hems in the property from all directions. I first got to know members when they phoned me shortly after they acquired the property in 1988 to seek support for a temporary revocable permit that would allow them to cross the Wilderness lot by car, truck or ATV on a preexisting dirt road. I knew that a state permit would be neither temporary nor revocable; once issued, the permit would establish a pattern of motorized entry that could never be revoked. NYS DEC agreed, and urged the owners to prove they had permanent rights of way. Unfortunately for the club, it was unable to prove that a right of way existed. During this dispute, the club closed one of their 80-acre parcels that led to the summit of Cathead Mountain to the hiking public. In the twenty years since, they have used this closure as leverage to gain the motorized access they sought in an exchange.

Since 2007, Assemblywoman Theresa Sayward has sponsored numerous meetings with the club owners, Forever Wild groups and the State. I really like the few members of the club whom I have met. They are good people who seek a land exchange that would give most of their land – more than 500 acres – to the publicly owned Forest Preserve, and access to Cathead in exchange for just 80-acres and motorized access to their existing camp, as well as the right to build another one. There are other details which I leave out for brevity’s sake. It seems a more than fair exchange, but still remains a legislative proposal.

Then, I think about stubborn constitutional questions. Would an actual amendment be in the public’s interest? Is there a public service gained or need satisfied, or is this merely serving a private club which knowingly bought a landlocked parcel? Is the land exchange of sufficient public importance, including to the Town of Benson, to merit statewide consideration and vote? By approving, would the voters create a permanent inholding within a Wilderness area? Would a yes vote encourage other inholders to pressure their representative for a similar vote, or to buy landlocked property on the assumption that they had some future right to drive to it?

First, I am glad this proposal will live or die on its own merits, and not as part of any land bank. Furthermore, I feel no pressure to answer my questions. Only if and when two separately elected legislatures have debated the question, voted affirmatively in committees, and then in Senate and Assembly will I get the chance to consider it – in the fall of 2011 at the earliest. That’s a good thing. Popular whim, political expediency, commercial opportunism will always seek to divert, hijack or dilute the mandate of “Forever Wild.” None can sneak past vigilant New Yorkers. That’s why we still have a Forest Preserve that is worthy of the name, and the envy of the rest of the world.

Photo:Forest Preserve near Upper Fish Pond, Wilcox Lake Wild Forest, Warren County

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Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest PreserveDuring 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 managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.

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