What follows is the first of three essays about the vote coming this November on whether New York State will hold a Constitutional Convention.  This first commentary in support is by Christopher Bopst and Peter Galie. Part two of Bopst and Galie’s essay will run Sunday morning, followed by an essay opposing a convention by Adirondack historian Philip Terrie on Sunday afternoon.

On November 7, 2017, New Yorkers will be asked whether they want to convene the state’s tenth constitutional convention, to consider amendments and revisions to the state’s 120-year old constitution. The question, which is automatically placed on the ballot every 20 years (N.Y. Const., art. XIX, sec. 2), causes considerable angst among those concerned a convention may jeopardize protections currently enshrined in the constitution, such as the beloved forever wild provision. The first part of this article will provide a brief history of the forever wild provision, and in particular how this provision has been treated at state constitutional conventions. The second part of the article will discuss how and why the provision has remained over one hundred years after its adoption a viable and vital part of our constitutional tradition while other constitutional prohibitions have not. The viability and vitality of the provision augur well for the likelihood that it will retain its significance should a convention be called in 2017.

Before we get to the forest preserve, however, we need a brief primer on the state constitutional amendment process. The New York State Constitution may be amended by two methods. One method is legislative amendment (N.Y. Const., art. XIX, sec. 1). In this method, a proposed amendment is passed by a majority of the elected members of each house of two consecutively elected state legislatures. The amendment is then placed on the ballot, and if it is approved by a majority of voters voting on the amendment, it becomes part of the state constitution.

The second method by which the state constitution may be amended is by a constitutional convention (N.Y. Const., art. XIX, sec. 2). A convention call is placed on the ballot either by the legislature or pursuant to the automatic call procedure (which occurs every twentieth year after 1957). If the call is approved by a majority of voters casting ballots on the question, a convention is held. In the November following approval (in this case, November, 2018), a total of 204 convention delegates would be elected, three from each of the state’s 63 senate districts and 15 elected statewide. The convention would meet in April, 2019, and would likely submit its work to the voters in November, 2019. Any changes to the state constitution proposed by the convention would need to be approved by the voters. The convention may either submit to the voters separate amendments to the existing constitution or an entirely new constitution.

Enactment of Forever Wild

The New York Constitution has an entire article dedicated to Conservation, Article XIV. The centerpiece of this article is the forever wild provision (N.Y. Const., art. XIV, sec. 1). Added by the 1894 convention, the crux of the provision provides:

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. When this language was added to the constitution, it marked the first time a state constitution protected a natural resource. As with many constitutional changes, it had a long gestation period.

Early Europeans viewed the Adirondacks as an economic resource, and by the middle of the 1800s, New York was at the forefront of the nation’s timber industry. Wood was also needed to power forges for iron mines. As the area became decimated to satisfy these commercial needs, calls arose to protect the forest preserve. In 1857, S.H. Hammond, in his Wild Northern Scenes; or Sporting Adventures with the Rifle and the Rod (New York: Derby & Jackson, 1857) stated:

“Had I my way, I would mark out a circle of a hundred miles in diameter, and throw around it the protecting aegis of the constitution. I would make it a forest forever. It should be a misdemeanor to chop down a tree, and a felony to clear an acre within its boundaries. The old woods should stand here always as God made them. . . (p. 83).”

The person whose efforts to protect the forest preserve were most critical was Verplanck Colvin, a man whose many career positions included Superintendent of the Adirondack Survey. Colvin was worried that the cutting of the Adirondack forest would deplete the water in New York’s canal system and jeopardize downstate rivers, while at the same time cause flooding in other areas. In 1870, he argued, in the interests of commerce and navigation, for the creation of an Adirondack Park or timber preserve, under the charge of a forest warden and deputies (Regents of the University of the State of New York, Twenty-Fourth Annual Report on the New York State Museum of Natural History (Albany: Argus, 1872), p. 180).

The legislature entered the picture in 1872 when the assembly appointed a commission to recommend ways to protect New York’s watershed. Eleven years later (an example of the glacial pace legislation sometimes takes), the state passed a law prohibiting the state from selling state-owned lands in ten counties (Laws of New York, 1883, ch. 13), and in 1885 the legislature created the forest preserve (Laws of New York, 1885, ch. 283). At the time of its creation, the preserve constituted approximately 681,374 acres in 11 Adirondack counties and approximately 34,000 acres in three counties in the Catskills.

In 1893, the legislature backtracked on its previous work, enacting what became known as the “Cutting Law.” (Laws of New York, 1893, ch. 332). This law allowed the state’s forest commission to sell trees from any part of the forest preserve, all but undoing the prior laws. That statute led to the realization that the only way to insulate the forest preserve from legislative whim would be to give it constitutional protection. That insulation was provided at the state’s sixth constitutional convention, in 1894.

The 1894 convention appointed a Special Committee on State Forest Preservation to consider and report amendments to the constitution for the preservation of the state forests. David McClure, a lawyer from New York City, was chosen to chair the committee. The committee heard testimony from, among others, Verplanck Colvin and John H. Washburn, of the New York Board of Underwriters. On August 23, the committee recommended the forever wild amendment (Revised Record of the Constitutional Convention of the State of New York, 1894, vol. 2, p. 1201). After some modest amendments and some unsuccessful attempts by logging interests to block the proposal, the forever wild provision was unanimously approved on September 13 and became part of the state constitution (Revised Record, 1894, vol. 4, pp. 708-09). At the time it was adopted, the provision read:

“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.”

Since its adoption, the provision has been amended 19 times, including by the 1938 constitutional convention, going from one of the shortest sections in the constitution to one of the longest (N.Y. Const., art. XIV, sec. 1). These amendments have, among others:

• Permitted the construction and maintenance of reservoirs for municipal water supply and canals (currently lodged in N.Y. Const., art. XIV, sec. 2);
• Permitted the building of ski trails;
• Allowed the construction of the Northway;
• Permitted the erection of power lines.

One of the amendments, allowing an acre of land to be conveyed to the Town of Long Lake for the siting of drinking water wells for the municipal water supply of Raquette Lake, was approved three years after the wells had actually been drilled (with the consent of the Department of Environmental Conservation)!

Treatment of Forever Wild by Subsequent Conventions

Notwithstanding the numerous amendments approving specific exceptions to the forever wild provision, the core of the prohibition has remained intact. Since 1894 there have been three constitutional conventions: in 1915, 1938 and 1967. None of these conventions has resulted in any changes that have eroded the spirit of the original provision.

In 1915, the convention retained the 1894 convention’s provision but made a few changes. It added the words “trees and” before the word “timber” as well as provisions allowing reforestation, the construction of fire trails, the removal of dead trees and dead timber solely for the purposes of reforestation and fire protection, and the construction of a state highway from Long Lake to Old Forge. (Journal of the Constitutional Convention of the State of New York, 1915, pp. 692-93). The convention defeated an attempt by lumber interests to allow timber to be cut in areas other than on mountaintops, streams and rivers.

The 1938 convention moved the existing prohibitions to a separate article (Article XIV), where they currently reside. The convention made and the voters approved two changes to the forest preserve. First, the convention strengthened the state’s commitment to the policy of wildlife conservation and reforestation. A 1931 amendment requiring the legislature to make annual appropriations of specific amounts to acquire land outside the “Blue Line” for reforestation purposes had been routinely disregarded in the face of the financial exigencies occasioned by the Great Depression. The 1938 convention declared forest and wildlife conservation to be policies of the state, and authorized, but did not require, the legislature to appropriate moneys to acquire land outside the Adirondack and Catskill parks for these purposes (Peter J. Galie, Ordered Liberty: A Constitutional History of New York (New York: Fordham University Press, 1996), pp. 253-54). Any land so acquired was not subject to the strictures of forever wild, but was prohibited from being sold, exchanged or taken by any public or private corporation (N.Y. Const., art. XIV, sec. 3(1)). Second, the convention authorized the legislature to sell isolated portions of forest preserve land of up to ten acres (later increased to 100 acres in 1973) outside the “Blue Line,” with the proviso that any funds generated from such sale had to be paid into a special fund which could only be used for the acquisition of additional forest preserve lands inside the Blue Line (N.Y. Const., art. XIV, sec. 3(2)). These revisions have contributed to the growth of the forest preserve from 681,374 acres in the Adirondacks and 34,000 acres in the Catskills to 2.6 million acres in the Adirondacks and 286,000 acres in the Catskills (New York State Department of Environmental Conservation, “New York’s Forest Preserve,” (accessed April 9, 2017)).

The 1967 convention approved an amendment proposed by Judge Charles Froessel to legalize public campgrounds in the forest preserve. The language provided that the forever wild prohibitions would not apply to “the use of such lands for public campsites of the kind presently constructed and maintained, and in areas similar to those in which they are presently located.” (Proceedings of the Constitutional Convention of the State of New York, 1967, vol. III, pp. 765-770). Although Froessel viewed this amendment as simply sanctioning what had up to that point been the de facto practice of the Conservation Department, environmentalists feared that this provision would allow the department to clear forest preserve land to permit building of any structures deemed suitable within its discretion (e.g., ski lodges, warming huts, etc.). A proposal to create a Forest Preserve Board of Trustees, tasked with developing recreational facilities, laying out trails and roads, establishing procedures for conservation and reforestation, providing for the development of wildlife habitat, and protecting the lands from forest fires was soundly defeated (Henrik N. Dullea, “We the People,” in Making a Modern Constitution: The Prospects for Constitutional Reform in New York (Rose Mary Bailly & Scott N. Fein, eds., 2016), p. 43.

The constitution proposed by the 1967 convention (including Judge Froessel’s amendment) was rejected by the voters.

The forever wild provision of the constitution has been one of the most successful in the New York Constitution. It has accomplished what it set out to do: keep the forest preserve free from legislative interference absent the consent of the people, and has endured with its central protections intact through three subsequent conventions. Part II of this Article will focus on why it has succeeded while other provisions in the constitution with a similar “thou shalt not form” have not had long-term success. That analysis will help in predicting the future of forever wild should voters authorize a convention in November 2017.

Christopher Bopst is Chief Legal and Financial Officer at Sam-Son Logistics in Buffalo, New York. He is the co-author with Peter Galie of The New York State Constitution (Oxford University Press, 2012), and co-editor with Peter Galie and Gerald Benjamin of New York’s Broken Constitution: The Governance Crisis and the Path to Renewed Greatness (SUNY Press, 2016).

Peter Galie is Emeritus Professor of Political Science at Canisius College in Buffalo, New York.  He is the author of Ordered Liberty: A Constitutional History of New York (Fordham University Press, 1996), co-author with Christopher Bopst of The New York State Constitution (Oxford University Press, 2012), and co-editor with Christopher Bopst and Gerald Benjamin of New York’s Broken Constitution: The Governance Crisis and the Path to Renewed Greatness (SUNY Press, 2016).

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