Wednesday, February 2, 2011

Dave Gibson: Little’s Forest Preserve Logging Amendment

I’ll risk it and take the bait in responding to Senator Betty Little, Assemblywoman Teresa Sayward and others concerning a proposed constitutional amendment to permit logging and forest product utilization on newly acquired Forest Preserve.

Their simplistic ecological arguments for the amendment, such as wanting to see more rabbits on the Forest Preserve, or expecting that logging the Preserve would help the climate are being made up as they go along and will not withstand serious scrutiny. I prefer to focus more on their constitutional hurdles.

The Senator is clearly motivated to keep the Finch lands and Follensby Pond out of the Forest Preserve. Unstated may be a desire to maintain certain leaseholders occupying the Finch lands – such as the politically influential members of the Gooley Club west of the Upper Hudson. These are at least rational positions to take and, while I have a different viewpoint, I can respect theirs. They will also attempt to accomplish their objective of keeping the lands out of the Forest Preserve through legislation, and one would think that an easier step than a constitutional amendment. Perhaps they think not.

They apparently believe a good way to accomplish their objective is to create a separate class of Forest Preserve that on some date certain, after a constitutional amendment is approved by the voters some years hence, and after new Forest Preserve is acquired will permit the practice of forestry on the new land. They may feel that the public would accept this, knowing that the existing three million acres would still be “forever wild.” They may believe that all they need to do is neatly sidestep a sticky clause in Article 14, Section 1 of the Constitution, and exempt new lands from its provisions. That clause states: “nor shall the timber thereon be sold, removed or destroyed.”

But that’s not all they have to do. Theirs is no technical amendment. By attempting to exempt only new Forest Preserve from the strictures of Article 14, they must amend all 54 words of Section 1 of Article 14. They must roughshod over the very constitutional language which voters have refused to change – despite given numerous opportunities to do so – in 116 years.

Perhaps they are betting on a constitutional convention virtually doing away with Article 14 as we know it, and I’d say that’s a poor bet.

Section 1 unifies the Forest Preserve. Its first sentence states that “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.” A simple exception clause for new acquisitions after some date would not do the trick. “Hereafter acquired” means just that. “Forever kept” means forever. The words pertain to any lands owned before, or acquired after the effective date of Section 1 of January 1, 1895. They were reaffirmed at the 1938 and 1967 constitutional conventions, and on many other occasions in the 20th and 21st centuries through passage of over 30 limited, site specific amendments which nonetheless preserve the overarching language of Section 1.

The second and final sentence of Section 1 is just as problematic for the Senator. “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.” Allowing DEC, a public corporation, to supervise and control logging on newly acquired Forest Preserve would constitute a clear taking of the lands. The legal agreements to permit logging activity by private parties on any parts of the Forest Preserve might likely constitute a lease, further violating that provision. The third and final clause of that sentence – the one that the Senator may think is the only hurdle – speaks for itself.

I conclude that pretty much all 54 words of Section 1 would need to be amended, rewritten and stripped of their present and historic meaning in order to achieve a separate class of Forest Preserve managed for forest products. The public may be willing to make occasional, limited, site specific amendments to Article 14 for worthy objectives that both meet a legitimate public purpose and enhance the Forest Preserve. However, the voters have demonstrated over a very long period that they are unwilling to make substantial changes to the “forever wild” policy because the Forest Preserve as now constituted provides such enormous benefits. It is the envy of the world. It distinguishes New York from all other states and from all other nations. It is woven into our social fabric, as well as our laws. It provides billions of dollars in ecological and recreational services. It pays taxes for all purposes. The voters would be especially unwilling when the reasons for doing so, on economic, ecological, social and public policy grounds, are so questionable.

Prior to 1983, Senator Little’s amendment might have a better public policy rationale and more public appeal. That was when the conservation easement legislation was approved that permits the State to acquire rights in land without the land becoming Forest Preserve, and which has been so effective in keeping forest management and forest employment alive in the Park, which are the stated objectives for the amendment. Putting more resources into effective programs like this would be the more realistic way to achieve them.

Photo: Article 14, Section 1, NYS Constitution.

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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 Preserve

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 managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.




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