Wednesday, March 13, 2019

Bauer: ORDA Should Not Play Games With Article XIV

Mt Van Hoevenberg Recreation AreaIt’s not every day that one gets to see a well-worn aphorism ring true. The philosopher George Santayana wrote, “Those who cannot remember the past are condemned to repeat it.”  In the Adirondacks this is now playing out at the Mt. Van Hoevenberg Recreation Area.

The Olympic Regional Development Authority (ORDA) manages this area for a variety of winter Olympic sports – cross-country skiing, biathlon, bobsled, and luge, among others. It’s also a popular cross-country ski area for the public, and starting in 2018 it became the staging area for a new trail to Cascade Mountain, where the public can start hiking in a safe parking area. The facility is located partly on land owned by the Town of North Elba Park District and partly on the State Forest Preserve. The Forest Preserve lands are protected as forever wild by Article XIV of the State Constitution.

The problem today is that ORDA is planning to undertake a series of improvements and upgrades to its facilities, which would involve the cutting of 3,528 trees on about 5 acres of the Forest Preserve. This count includes only trees of 3” diameter or more at breast height (DBH), because this is the size that the State of New York has heretofore considered to be legally a “tree” or “timber” under the Constitution. Many thousands of smaller trees would also be cut as part of the project.  The expanded facilities on the Forest Preserve would include widening cross-country ski trails, building new trails, expanding the parking lot, upgrading the biathlon stadium, and improving the driveway to the main lodge. ORDA sought a legal analysis of its plans from the Department of Environmental Conservation (DEC), which green-lighted the project.

Ironically, these facilities are located at Mt. Van Hoevenberg the site of the most important legal decision upholding Article XIV, Section 1, the forever wild clause, known as Association for the Protection of the Adirondacks vs. MacDonald. Alexander MacDonald was the Commissioner of the Conservation Department (DEC’s predecessor) in the late 1920s and early 1930s, and as such was in charge of the care and custody of the Forest Preserve for the State of New York. A 1929 law passed by the Legislature directed MacDonald to construct a new bobsleigh run on Forest Preserve land on the western side of the Sentinel Range. This would have seen the cutting of 2,500 trees over a 4.5-acre area. The Association (a predecessor of Protect the Adirondacks!) sued to uphold Article XIV.  The Appellate Division, Third Department, and the Court of Appeals both found that the State’s proposed actions would violate the forever wild clause. These decisions have provided some of the most articulate writing about the importance of Article XIV in our history.

Article XIV, Section 1 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.”

The Association decision was issued by the Court of Appeals in March 1930. The result was that the State shifted its planning for the bobsleigh run from the Forest Preserve to the land on Mt. Van Hoevenberg that is now owned by the Town of North Elba. Today, ORDA manages the Mt. Van Hoevenberg facility on lands that straddle Town land and the Forest Preserve. The majority of the facilities, such as the bobsled and luge track, biathlon range, most of the ski trails, and the stadium area are on Town lands, where ORDA can operate without constitutional restrictions, while the parking lots, main lodge, and other facilities are on the Forest Preserve, where ORDA must comply with Article XIV as well as the Adirondack Park State Land Master Plan.

The record of the Association decision in the late 1920s and 1930 is not perfect. The stipulated record materials provided tables of trees to be cut for the bobsleigh run itself that included both “Live Timber” and “Dead Timber,” which totaled 1,710 trees of 3” DBH or more. The courts estimated that another 800 or so trees would be cut for the return road, but there is no actual count or record of their size. No data was given for trees under 3” DBH. Other papers in the record provide tables of the amount of board feet of some of the trees that were scheduled to be cut. The Court of Appeals decision stated: “It is estimated that the construction will necessitate the removal of trees from about 4 1/2 acres of land, or a total number of trees, large and small, estimated at 2,500.”

The Appellate Division, Third Department, initially blocked the State’s plans for the bobsleigh run and tree cutting on the Forest Preserve.  The Appellate Division, mustering perhaps the greatest legal statement about the forever wild provision, stated in its decision:

Giving to the phrase “forever kept as wild forest lands” the significance which the term “wild forest” bears, we must conclude that the idea intended was a health resort and playground with the attributes of a wild forest park as distinguished from other parks so common to our civilization. We must preserve it in its wild nature, its trees, its rocks, its streams. It was to be a great resort for the free use of all the people, but it was made a wild resort in which nature is given free rein. Its uses for health and pleasure must not be inconsistent with its preservation as forest lands in a wild state. It must always retain the character of a wilderness. Hunting, fishing, tramping, mountain climbing, snowshoeing, skiing or skating find ideal setting in nature’s wilderness. It is essentially a quiet and healthful retreat from the turmoils and artificialities of a busy urban life. Breathing its pure air is invigorating to the sick. No artificial setting is required for any of these purposes. Sports which require a setting that is man-made are unmistakably inconsistent with the preservation of these forest lands in the wild and natural state in which Providence has developed them. This bobsleigh run and return-way require the clearing of four or five acres of forest lands, the cutting of 2,600 trees which must unquestionably be regarded as of “timber” size and the blasting of some fifty cubic yards of rock from their natural state, to say nothing of the cuts and fills of earth and rock which will be required to make the slide an even and safe surface for the sport and the return-way possible up a steep slope to the top of the slide. If clearings of timber from lands owned by the State in the Forest Preserve are sanctioned for such a purpose, they are equally sanctioned for the construction of public automobile race tracks, toboggan slides, golf courses, baseball diamonds, tennis courts and airplane landing fields, all of which are out of harmony with forest lands in their wild state. There will be no limit to such encroachments that will crowd through the door of such precedent, if established. As we view it, the Legislature has no power to open that door. If the People desire to use their great park for such recreation a constitutional amendment is necessary.

The Conservation Department then appealed to the Court of Appeals, New York’s highest court.  Its subsequent decision affirmed the Appellate Division’s.  It talked about the importance of the Winter Olympics to the state and the region. It referenced the legislation that designated Lake Placid as the site of the games and provided state support. Nevertheless, it then stated:

Words are but symbols indicating ideas, and are subject to contraction and expansion to meet the idea sought to be expressed; they register frequently according to association,or like the thermometer, by the atmosphere surrounding them.The purpose of the constitutional provision, as indicated by the debates in the Convention of 1894, was to prevent the cutting or destruction of the timber or the sale thereof, as had theretofore been permitted by legislation, to the injury and ruin of the Forest Preserve. To accomplish the end in view, it was thought necessary to close all gaps and openings in the law, and to prohibit any cutting or any removal of the trees and timber to a substantial extent. The Adirondack Park was to be preserved, not destroyed. Therefore all things necessary were permitted, such as measures to prevent forest fires, the repairs to roads and proper inspection, or the erection and maintenance of proper facilities for the use by the public which did not call for the removal of the timber to any material degree. The Forest Preserve is preserved for the public; its benefits are for the people of the state as a whole. Whatever the advantages may be of having wild forest lands preserved in their natural state, the advantages are for every one within the state and for the use of the people of the state.

The Association decision references various allowable state management decisions on the Forest Preserve, both those authorized by previous constitutional amendments, and those authorized by state agencies, where limited tree cutting was permitted for “proper facilities for the use by the public which did not call for the removal of the timber to any material degree.” The decision stated “The framers of the Constitution, as before stated, intended to stop the willful destruction of trees upon the forest lands, and to preserve these in the wild state now existing; they adopted a measure forbidding the cutting down of these trees to any substantial extent for any purpose.” The Court of Appeals concluded:

Tobogganing [bobsledding] is not the only outdoor sport. Summer sports in the Adirondacks attract a larger number of people than the winter sports, simply for the reason, if no other, that the summertime still remains the vacation period for most of us. The same plea made for the toboggan slide in winter might be made for the golf course in summer, or for other sports requiring the use or the removal of timber. In other words, this plea in behalf of sport is a plea for an open door through which abuses as well as benefits may pass. The Constitution intends to take no more chances with abuses; and therefore says the door must be kept shut. The timber on the lands of the Adirondack Park in the Forest Preserve, or that on the western slope of the Sentinel range, cannot be cut and removed to construct a toboggan slide simply and solely for the reason that section 7, article 7 of the Constitution [now Section 1, Article XIV] says that it cannot be done. Consequently … permitting the erection of this bobsleigh slide and the destruction of the trees is unconstitutional …”.

The question facing ORDA and the DEC today is: if the cutting of 2,500 trees on 4.5 acres for a winter sports facility was found to be unconstitutional in 1930, why is the cutting of 3,518 trees on 5 acres for a similar facility somehow allowable today?

The Mt. Van Hoevenberg facility is important for the region. ORDA makes a strong case that it must upgrade its facilities to meet minimum standards so that it can host world class events. Rather than playing games with Article XIV, ORDA should investigate a constitutional amendment that would remove acreage from the Forest Preserve and transfer it to the Town of North Elba so that it can undertake a variety of upgrades and expansions without running afoul of the Constitution.

ORDA should make a case for whatever acreage it needs for its long-term planning, and offer to acquire replacement lands to be added to the Forest Preserve. Such a course of action would not only uphold Article XIV, but also ensure that the Mt. Van Hoevenberg facility has what it needs to succeed and support the Adirondack economy.

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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.




14 Responses

  1. James M Schaefer says:

    Peter Bauer’s challenge to ORDA, to uphold Article XIV is right on concerning the proposition of upgrading the Mt. Vanhovenberg facility by removing thousands of trees and changing the natural landscape. Were my late uncle, Paul Schaefer, around — he would be fuming at the prospect of such a proposal. Moreover, he would likely be chary to see a mitigation process whereby an offset of land acquisition might be considered “sufficient.”
    We know how “apples to alligators” can work. One person’s mitigation is another’s nightmare. Let’s be sure than any approved land acquisition reflects a strict interpretation of Article XIV of the Constitution, and is as close to an “apples to apples” trade as possible. The forest lands around Mt. Vanhovenberg are not insignificant. Uncle Paul would probably insist on that!

  2. Dean D Lefebvre says:

    Good article Peter

    As they say “what’s good for the goose is also good for the gander”

    The State has no more right yo infri ge upon Article XIV of its constitution than do I

    Land swap is a great idea

  3. Ryan Finnigan says:

    It’s too sad when the one Department we have to rely on to protect our Forest Preserve forever is the very one facilitating it’s permament destruction.

  4. Tony Goodwin says:

    I will note that there is a significant difference between the 1930 decision and ORDA’s current proposal. The bob run on the Sentinel Range (I think Scarface was also considered) would have completely changed the character of an otherwise undeveloped area. By contrast. all of the current tree cutting is on the periphery of existing parking lots or the edges of long-established ski trails. The entire plan to upgrade Mt. Van Hoevenberg’s ski trails to current World Cup/Olympic standards (they’ve changed a lot since 1980) maximizes use of Town of North Elba land even though there might be better terrain on adjacent Forest Preserve. Given where the boundary line is located, it was unavoidable that some tree cutting had to happen on the Forest Preserve. I don’t know what the total tree count might be for this upgrade. I have, however, looked at all the flagging in the woods on North Elba land while trying to figure out just what sort of courses have been designed, and there will be way more than 3,000 trees cut on that land.

  5. Hawkeye says:

    Tony,
    These moves are closer than you acknowledge. Rather than debate the similarities or differences here, ORDA should seek an opinion from the Attorney General or a constitutional amendment similar to the permission for Whiteface, Gore and Bellayre. An opinion from DEC isn’t persuasive because the two agencies have a management agreement that means DEC is interpreting for its own benefit. Do it right

  6. Kyle Scott says:

    “The question facing ORDA and the DEC today is: if the cutting of 2,500 trees on 4.5 acres for a winter sports facility was found to be unconstitutional in 1930, why is the cutting of 3,518 trees on 5 acres for a similar facility somehow allowable today?”

    Because lawyers are even bigger BS artists then ever before and politicians 10K times more corrupt?

  7. Edward Zahniser says:

    Bravo, Peter! ORDA has proven it is not an elephant, for an elephant never forgets. Well, maybe ORDA just hopes the public and the courts are not elephants, who never forget.

  8. Tony Goodwin says:

    While past wrongs do not necessarily make the current proposal “right”, it is worth noting that the entire lot where the five finger parking lots were constructed in 1962 has been Forest Preserve since1922. Is there any record of the decision-making process that led to that major parking upgrade? Additionally, the entrance road was relocated and widened from its original 1932 configuration. I am pretty sure that not every piece of land crossed between Rt. 73 and those lots was Forest Preserve at the time, but further deed research could easily determine that.

    Remember also that all of this Forest Preserve is classified as Intensive Use, a classification that has permitted the construction of 30 miles of cross-country ski trails and several buildings – some with private commercial activity. These include a lodge to accommodate public skiers plus other building to facilitate competitive events. Given all the tree cutting that has already happened on this Intensive Use Area (since that became a designation in the State Land Master Plan), I do not see the current proposal as a dangerous precedent that will lead to any unwarranted incursion into the Forest Preserve.

  9. Scott says:

    Ah, I didn’t realize the land is classified intensive use, like Whiteface. That ends the issue, I would think.

  10. Tony Goodwin says:

    Page 32 of the SLMP states, “The Mt. Van Hoevenberg intensive use area should be maintained as a winter sports facility meting international standards for bobsled, luge, biathlon, and cross-country skiing under developed, competitive conditions.”

  11. James M Schaefer says:

    And Tony, somehow that Page 32 language trumps the guidance of the Consititution’s Article XIV? What about remote parking with shuttle service instead of expanding (levelling) more on site parking? Don’t fringe trees buffer wind, sun and related weather conditions important to the track/course efficiency?

    Frankly, as old-timers have pointed out years ago, the entire wintersports facilities of the Lake Placid/Whiteface/Mt. Van Hovenberg Complex suffer from being in a classic “snow shadow” on the leeward side of the High Peaks. How many flat cars of snow were brought by train from the Old Forge area by train to save the 1932 Olympics? How many have suffered the brutal cold, wind and ice conditions of the famed Whiteface slopes? Just sayin. Jumping through more hoops in the name of World Games is just the latest exercise in futility. Unfortunately money continues to talk in New York.

  12. Tony Goodwin says:

    I agree that the Intensive Use classification does not totally “trump” Article XIV, but clearly there is more leeway on these relatively small areas of “intensive Use” Forest Preserve. Interpreting Article XIV strictly as written, no trees could be cut even for a simple hiking trail. Intensive Use permits wide, grass-covered ski trails not to mention even wider paved roads at most state campgrounds.

    I don’t know, and suspect no one knows, how many trees on the Forest Preserve were cut to create the current 30-miles of cross-country ski trails at Mt.Van Hoevenberg. Clearly it was tens of thousands. The proposed cutting along the edges of the existing parking lots and existing ski trails will have absolutely no effect on snowfall or wind. And these improvements are not in any way just for the World University Games – these are changes needed to keep these facilities current with the ever-changing international standards as indicated in the plan. Mt. Van Hoevenberg will never look like the Holmenkollen in Oslo, Norway or any of the other major ski stadiums in Europe; but it should continue to have courses that can and should occasionally host world-class athletes for competitions.

  13. James M Schaefer says:

    So the task is to find a world class replacement of equal or better forested land to swap. We’ll be watching.

  14. Tom Miller says:

    My question for all of you who agree with Mr. Bauer is why doesnt this go both ways. My point is you hear all the time about the state land purchases that get added into the park, why is there not an equal amount of land else where being given back for recreational use. The reason for these upgrades far out way the lost of some trees that have already been replaced with new land purchases.

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