Sunday, February 15, 2015

Peter Bauer: New Criteria For Forest Preserve Amendments

Article 14, Section 1 - croppedArticle XIV, Section 1, of the New York State Constitution states: “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. 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.”

These words, approved by New York voters in 1894 and unchanged ever since, should be amended only under extraordinary circumstances and only to secure a clearly identified and significant public benefit.

The NYCO Minerals, Inc., Constitutional Amendment passed in 2013 was the most controversial in the last 50 years. It passed by a narrow margin and was aided by the strong support from the Department of Environmental Conservation (DEC), which acted as a private lobbyist for NYCO, and unprecedented spending by NYCO of over $600,000.

The legislative review of the NYCO Amendment was poor. Substantial issues were glossed over, such as how the amendment would be implemented, alternatives to selling Forest Preserve, and the ecological quality of both the Forest Preserve lands targeted for sale and the replacement lands. Few in the Legislature were prepared to fully evaluate the benefits and negative consequences of the proposal. Far from an independent and honest broker, the Department of Environmental Conservation (DEC) zealously and relentlessly made the case for the NYCO deal.

Because more proposals are coming, it’s important that a much better filter be created to evaluate future proposals to amend Article XIV.

The Common Ground Alliance, DEC, and the Governor’s Office are working on a new amendment for possible first passage in the 2015 legislative session. It would create a new community land bank of Forest Preserve lands modeled after the successful highways land bank administered by the Department of Transportation (DOT) to enable road maintenance in the Adirondacks.

The community land bank would authorize the removal of some Forest Preserve lands – estimates for the bank size range from 250 to 2,000 acres or more – which could be used for various community or municipal projects. The details have not been finalized yet for the scope or administration of this amendment. Another possible draft amendment would look to clarify the right for various utilities to utilize highway corridors; here too, details have not been finalized.

Four Article XIV Constitutional Amendments have been approved since 2007, making this period the most active in the history of the Forest Preserve for such changes. While the two amendments discussed above are being crafted, other ideas are brewing in various corners of the Adirondacks and conference rooms in the State Capital.

The NYS Constitution requires that an amendment be passed by two successive Legislatures and then be approved in a public referendum. Many amendments have failed to receive first or second passage and died in the Legislature. The NYCO amendment showed how the process has changed with the enlistment of big money lobbyists and the DEC taking an advocacy position and committing its leaders and program staff to intensive lobbying.

Here are criteria that Protect the Adirondacks will use to evaluate a proposed Article XIV Constitutional Amendment. They will protect the Forest Preserve, provide better information to legislators and the general public, and bring greater sunshine to a closed process driven heavily by a single state agency. We will encourage the Cuomo Administration, DEC, and Legislative leaders to use these criteria in their review.

1. The proposed amendment must be drafted by the State Legislature and not by any State agency.

2. No amendment shall result in land being transferred out of the Forest Preserve to public or private corporations or to unincorporated businesses, private clubs, families, or individuals, or any other private legal entity.

3. A clear justification must be provided for the amendment, and it must serve only a public purpose and not result in private or commercial gain.

4. The amendment must be accompanied by legislation that explicitly describes the process for implementation of the amendment if the voters approve it.

5. There must be a complete, independent biological and ecological assessment of any lands that are subject to removal from the Forest Preserve as part of an amendment. No mature forests, old growth forests, or parcels of ecological significance shall be removed from the Forest Preserve.

6. In the case of land exchanges, the land offered in return for a parcel of Forest Preserve must be precisely and explicitly identified, must be independently determined to be of higher ecological and fair-market value than the land to be transferred out of the Forest Preserve, and must enhance the character of the Unit Management Area from which the Forest Preserve land is being removed.

As required by Article VII of the State constitution, neither the Department of Environmental Conservation nor any other State entity shall advocate for or against a proposed amendment during legislative review or between the time any amendment is given second passage and the referendum. These agencies may provide only factual, legal, and other educational information during such process.

 

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Peter Bauer is the Executive Director of Protect the Adirondacks.

He has been working in various capacities on Adirondack Park environmental issues since the mid-1980s, including stints as the Executive Director of the Residents' Committee to Protect the Adirondacks and FUND for Lake George as well as on the staff of the Commission on the Adirondacks in the Twenty-First Century. He also worked at Adirondack Life Magazine. He served as Chair of the Town of Lake George Zoning Board of Appeals and has served on numerous advisory boards for management of the Adirondack Park and Forest Preserve.

Peter lives in Blue Mountain Lake with his wife and two children, enjoys a wide variety of outdoor recreational activities throughout the Adirondacks, and is a member of the Blue Mountain Lake volunteer fire department.

Follow Protect the Adirondacks on Facebook and Twitter.




18 Responses

  1. Bill Ingersoll says:

    Good analysis Peter.

    Did Protect endorse the Township 40 amendment in 2013? I ask because your guideline #2 seems to suggest that you would not support such an exchange in the future, by saying that no exchange “shall result in land being transferred out of the Forest Preserve to … private clubs, families, or individuals, or any other private legal entity.”

    Also, the guideline that no exchange shall involve “public or private corporations” as trading partners pretty much eliminates nearly all possibility of a land exchange of any kind. The term “public corporation” includes government-directed organizations, not just those with stocks traded on Wall Street. My interpretation of this guideline, therefore, is that Protect would only support an exchange between two state agencies, such as DEC and DOT.

    Rather than stating that there should be no private benefit to a land exchange, I have argued that there should be a clear public benefit on each side of the exchange. For instance, I voted for Prop 4 (Township 40) because the lands being ceded by the state had disputed titles, and were of limited public value. I voted to approve the Tupper Lake utility line because it benefited the community with limited impact to the Forest Preserve; the alternate to that exchange was a power line routed for several miles through the backcountry.

    And had I been of legal voting age in 1979, I would have supported the Perkins Clearing land exchange. I’ve seen the pre-exchange property maps, and even though the land swap benefited International Paper, I also know from my firsthand experiences today that the West Canada Lake Wilderness is a much wilder place. Although some of the state lands in the old checkerboard land pattern may have contained old growth stands, the only other pro-wilderness resolution would have been a full buyout of IP’s lands. An opportunity for such a purchase probably would not have occurred for another 25 years, when IP sold its holdings to Lyme. Therefore the Perkins Clearing land exchange resolved a land ownership pattern that was unworkable for all parties AND it added sensitive, high-elevation lands and waters to the Forest Preserve.

    The **ONLY** scenario in which I might have considered supporting the NYCO amendment in 2013 would have been if the mine had held a preexisting title interest in Lot 8, meaning that the state did not have full ownership of the property. In this case, the public would be ceding an administrative headache in exchange for a clear title to an alternate property. Obviously, that was not the case. There was no public motivation to give up Lot 8, and some of the new lands being offered in exchange are properties that could have been acquired anyway by other means. This is what made the NYCO amendment repugnant to me, and why I now refuse to support the “green” organizations that leant their names to this outrage.

    Therefore I differ on Protect’s guidelines #2 and #3. In my commentary from September 2013 (http://www.adirondackalmanack.com/2013/09/bill-ingersoll-nyco-amendment-value-forest-preserve.html) I argued that all Forest Preserve amendments should be motivated by a public need, and that there should be tangible public benefits on both the giving and receiving ends of a land exchange. Land acquisition alone is NOT an acceptable justification.

    As for guideline #1, this is why I have doubts about the Common Ground Alliance group. On the one hand it is good to see the various Adirondack Park interest groups and government bodies working together and cooperating to resolve **mutual** issues that are within their powers to control. For instance, if CGA was about the Adirondack Mountain Club, Essex County, and the town of North Elba working out a maintenance plan for the road to Heart Lake, then great! This would be an example of the parties working together to find “common ground” on an issue of direct importance to everybody involved.

    But when these or similar organizations get together and draft constitutional amendments, that crosses a serious line. The utility land bank amendment proposed last summer was drafted by a CGA “working group” consisting of Neil Woodworth (executive director of ADK), Karyn Richards (DEC Forest Preserve coordinator), David Mason (CGA/Adirondack Futures), Bill Farber (Morehouse town supervisor, chair of the Hamilton County Board of Supervisors), Sherman Craig (APA board member, retired teacher), and a few other names I don’t recognize. I am not casting aspersions at any of these individuals, but as a voter in New York State I can’t recall granting any of them the authority to draft a constitutional amendment. By doing so, they are acting well beyond their authority. This should be investigated and questioned, not praised as “seeking common ground.” Neither the CGA nor any of its working groups should view itself as a sort of “Adirondack congress” in which Forest Preserve policies are hammered out.

  2. Greg M says:

    * DEC is “Far from Honest”

    * “amendment must be drafted by the State Legislature and not by any State agency.” to me undermines unquestionably undermines democracy.

    * Coupling most of the others (#2, #3-private & commercial parties have gained in every amendment, it’s just a matter of degree) company just masking the fact that you support no public amendment.

    * “There must be a complete, independent biological and ecological…” — Independent? Are you saying the DEC is incompetent?

    Reading this and thinking of the Denton article makes me wonder if the pot is calling the kettle black.

  3. Dave Mason says:

    For interested parties, the output of the CGA effort was a white paper posted in June 2014. It generated lots of questions and input, as hoped, and the group produced a FAQ document that captured most of the feedback. Both can be found here:

    http://adkfutures.org/2014/06/26/faq-about-the-amendment-proposal/

    The drafting of legal language was beyond the scope of the working group. All we did was produce these 2 documents.

    The idea we proposed had 2 parts. One was a land bank as has been written about and is actually suggest in the current SLMP document. The other was to allow common utilities to be buried in road ROWs where they pass through the Forest Preserve. Since 1996, it has been illegal to bury a pipe or cable under a road, e.g a State Highway.

    To Bill Ingersoll’s point, the working group was not appointed by anyone to do anything at all. But, collectively, they were willing to spend some time working on these truly complicated issues, so we did, and the 2 documents were the work product of the effort. We hope we made a contribution sufficiently well formed that others can build upon it and carry forward as a formal legal proposal.

    The white paper was also written about here:
    http://www.adirondackalmanack.com/2014/06/commentary-a-sensible-amendment-to-article-xiv.html

    An article about it appeared in the Adirondack Explorer as well.

  4. Jim Bullard says:

    Too bad that process wasn’t scrupulously followed for the NYCO amendment.

  5. Paul says:

    “1. The proposed amendment must be drafted by the State Legislature and not by any State agency.

    What expertise does legislature have in this regard? They depend on the agencies for guidance.

    “2. No amendment shall result in land being transferred out of the Forest Preserve to public or private corporations or to unincorporated businesses, private clubs, families, or individuals, or any other private legal entity.

    Peter, why not, if it increases the size of the forest preserve who cares who the deal is made with? Private landholders seem like an obvious source of land to increase the size of the FP.

    “3. A clear justification must be provided for the amendment, and it must serve only a public purpose and not result in private or commercial gain.”

    Increasing the size of the Forest Preserve serves a public purpose.

  6. Colvin says:

    Had Mr Bauer’s criteria been in place throughout history no amendment to Article XIV would ever have passed–no amendment has ever satisfied these criteria. Not the DOT road bank, not the Keene cemetery, not Township 40, not even the Route 56 power line Amendment which Mr. Bauer so very actively supported. These criteria are unworkable and unreasonable and would kill every future amendment proposal, regardless of its merit (unless, of course, the amendment were to be favored by Protect, in which case the criteria would conveniently be ignored).

    So, Mr. Bauer trusts only the legislature to write constitutional amendments? Seems to me that it is far preferable to have amendments written by a group of people, like Common Ground, who are a mix of diverse interests with understanding of the relevant issues. This is the first time in a long time that I have heard anyone say they trust the legislature to do anything.

  7. Curt Austin says:

    Protect generally attempts to elevate one of many passages in an ordinary state constitution to the status of immutable scripture. I’m not comfortable with that psychological tactic; it interferes with thoughtful decision-making. Mr. Bauer offers some elements to thoughtful decision-making here – good to see, and some are reasonable – but I fear their combined effect is the same: thou shalt not make amendments to Article 14.

    It would be good to see Mr. Bauer come right out and say he is OK with burying a cable underneath a road, that an environmental impact statement would not be necessary. I don’t see how he can, though, since it would violate scripture.

  8. Bruce says:

    Peter, great article.

    Unfortunately, it is more commonly becoming “money talks, everything else walks” especially where politicians are concerned. These days, it’s an unusual politician indeed who works for the real benefit of the people and not him/herself first. Contrary to the belief of the party faithful, this transcends party lines.

  9. Tony Hall says:

    Peter, can you elaborate upon:
    1. “The proposed amendment must be drafted by the State Legislature and not by any State agency”…. ?
    I know the Assembly drafted the language for the NYCO amendment; are there amendments that were written by an agency and adopted without changes by the legislature before being placed on the ballot?
    And number 4: “The amendment must be accompanied by legislation that explicitly describes the process for implementation of the amendment if the voters approve it.”
    How and where would that be published?

    • Peter Bauer says:

      Tony,

      In my review of materials provided by the DEC through FOIL (one cannot FOIL the Legislature as you know), staff from Stec and Little’s offices were asking for bill language, amendments, bill memos, and talking points from the DEC, which were provided in a steady flow. The DEC was clearly quarterbacking the legislative efforts for 1st and 2nd passages in all phases. DEC bill language/amendments/bill memos were sent to bill drafting with nary a change. In doing all this, the DEC clearly stepped over the line from a provider of technical information to an advocate.

      It seems clear to me that the Assembly/Senate adopted whatever the DEC gave them.

      As to implementing legislation, the Township 40 amendment had a bill that was passed simultaneously with the amendment that enumerated a process for how this complicated amendment would be administered if approved. There was no such accompanying bill for NYCO. We think that such bills should be standard practice.

      • Colvin says:

        How many amendments have simultaneously been accompanied by detailed implementing legislation? Any others besides Township 40?

        I could care less who drafts an amendment. What matters to me is the merit of the proposal.

      • Tony Hall says:

        I was not aware of the extent of DEC’s involvement in the drafting of the NYCO amendment. As I may have mentioned to you, I was told the Assembly Democrats drafted the language as it appeared on the ballot in such a way that it would be voted down, or so they hoped or believed. Making the public aware of how any amendment would be implemented if approved is, of course, an excellent idea and Protect’s proposal would at least make that a more likely possibility.

  10. Chris says:

    Cracks in the dam….

  11. Charlie Baudinet says:

    If only the legislature can be trusted, as opposed to agencies or private citizens, should Sheldon Silver draft the legislation?

  12. Tony Goodwin says:

    I agree with Bill Ingersoll that Protect’s requirements are overly strict and would have prevented some necessary and beneficial amendments from being passed. There is no question that IP benefitted greatly from the Perkins Clearing land exchange, but as Bill pointed out the West Canada Lakes Wilderness Area also benefitted greatly. Furthermore, National Grid benefitted from having the length of their power line to Tupper Lake shortened, but it kept the line next to an existing highway rather than running it through otherwise relatively undisturbed terrain.

    As for the CGA proposals to allow common utilities to be buried within the right-of-way of a highway through the Forest Preserve, that should be no problem if we can have a major above-ground transmission line on the Forest Preserve next to a highway.

  13. Henrietta Jordan says:

    These criteria are good. I wonder if they would be enhanced by a prohibition on fragmentation of intact forest blocks and disruption of established wildlife corridors. But perhaps these ideas are already embedded in them. Thanks for starting this important conversation.

  14. common sense says:

    Green groups exchanged smooth purchase of Finch lands for no hassle on NYCO amendment. This Gov is all about image and jobs. DEC was just doing what they were told. It is a poor system for trying to protect land.

  15. mike says:

    The criteria I find odd is the one that only the legislature can write a proposal.

    Given the many corruption issues, only most recently Mr. Silver, the idea that this body is equipped to write something like Township 40 is nuts. Of all the bodies of government in Albany, they’re the least knowledgeable and, history suggests, the most corruptible.

    On this point, Protect should be careful about what it wishes for.

    I don’t think it matters where amendment work comes from. What matters is that it is well thought out and, in the end, a net benefit to the Forest Preserve, its ecosystem and it’s communities.

    And for a laughing point, isn’t Bob Glennon part of Protect these days? I can’t imagine him suggesting the legislature in this role. They must have tied and gagged him what they took a vote on this [just kidding Bob].