Monday, July 29, 2019

Forever Wild, ORDA and Adirondack Legal History

There are more than three million acres of Forest Preserve in the Adirondack and Catskill Parks today. Yet, the most consequential New York State Court decision restricting the ways we can develop and use the “forever wild” Preserve was all about a few acres of land below Mt. Van Hoevenberg, close to Lake Placid.

There, in 1929, the state planned a “bobsleigh run or slide on state lands in the forest preserve.” About 2500 trees would need cutting to create the bobsled course for the 1932 Olympics. The lower court, the Appellate Division, Third Department, ruled that this activity was unconstitutional on grounds that this was wild forest and therefore must be preserved in its wild state, stating that “we must preserve it in its wild nature, its trees, its rocks, its streams. It must always retain the character of a wilderness.”

The Court of Appeals upheld the lower court in the Association for the Protection of the Adirondacks v. McDonald (Conservation Commissioner for NYS). Our highest court used more matter-of-fact language than the lower court. The run could not be built on forest preserve, stated the Court of Appeals, because “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 cannot be cut and removed to construct a toboggan slide simply and solely for the reason that Section 7, Article VII of the Constitution says that it cannot be done. Consequently, Chapter 417 of the Laws of 1929 permitting the erection of this bobsleigh slide and the destruction of the trees is unconstitutional” (Note: Section 7 of Article VII was renumbered Section 1 of Article XIV in 1938).

The 1932 bobsleigh or sled competition subsequently took place on Town of North Elba land on which the state took an easement for this specific purpose. The area covered was for the run itself, 1.5 miles in length, the return road, the starts at one-half mile, one mile and one-and-one half miles, and the finish area.

Today, that small acreage of the 1932 bobsled competition, and more than 650 acres around it comprise the Mt. Van Hoevenberg Recreation Area operated by the Olympic Regional Development Authority, ORDA, created in 1982. About one half of the 650 acres are the Town lands where the bob/luge and other runs are located, all encumbered by a permanent conservation easement.  The other half, approximately, is forest preserve classified under the State Land Master Plan as Intensive Use.

If only it were that simple! The 350 acres north of the easement were bought by NYS under a 1960 and 1962 recreational bond act approved by the voters. The former NYS Conservation Department wanted these lands to develop for a wide variety of recreation. They did not want the potential activities there to be hobbled by Article XIV. So, they went around the Constitution.

These lands were acquired for “Ski Centers and Special Uses” and the deed to most parcels specified that the land was not to be used (or protected) as Forest Preserve. How could a real property instrument like a deed over-ride the clear mandate of the NYS Constitution, stating as it does, that the lands of the state, now owned or hereafter acquired in the Forest Preserve counties, “shall be forever kept as wild forest lands”? That’s part of a long 20th century story of courts, the legislature and the agencies evading the plain meaning of “forever wild.”

The Conservation Department relied on a 1966 NYS court decision, never challenged, known as the “Hamilton County Case” (Town of Indian Lake, vs. State Board of Equalization and Assessment, 271 N.Y. Supp. 2d 501, App. Div. 3rd Dept.). The question in that case was the tax status of several parcels of land which the state had acquired.  Only forest preserve was taxable. But the Court went on to give NYS a huge loophole for non-Forest Preserve activity in the Adirondack and Catskill Parks. All that was required was for NYS to indicate on the deed that the parcel was not subject to the restrictions of the Constitution. “It is essential, however, that the deed of conveyance or the appropriation in each instance adequately indicate the purpose of the acquisition,” wrote the Court. Again, this unconstitutional ruling was never challenged in court.

Today, the NYS Dept. of Environmental Conservation no longer routinely violates the Constitution in the egregious way sanctioned in the Hamilton County Case. When the state and a private owner wish to obtain or retain the rights to include activities which Article XIV prohibits, they craft a negotiated conservation easement so that the land itself remains in private hands. In the 1960s, the State lacked legislative authority to do that. That easement authority was provided in 1983.

ORDA is a development authority and its activities have run up against Article XIV many times. For example, in 1992 the Adirondack Mountain Club and the Association for the Protection of the Adirondacks learned that ORDA intended to pave the biathalon trail at Mt. Van Hoevenberg to encourage off-highway roller blading.  In researching this particular parcel acquired in the 1960s, ADK discovered that someone in the Conservation Department forgot to specify on the deed of this particular parcel of land that it was not to be treated as forest preserve. Employing the unconstitutional standard of the court in the Hamilton County case, it was, therefore, forest preserve by omission. Widening and paving the trail for high speed rollerblading here would violate the McDonald court’s interpretation of Article XIV, and so we argued to Governor Mario Cuomo’s DEC Commissioner (DEC is a key member of the ORDA board). I remember that the commissioner was furious with us but ultimately the trail was not paved and we did not have to litigate the matter.

Today, pursuant to an approved UMP amendment ORDA is constructing a whole lot more than a new biathalon trail at Mt. Van Hoevenberg. These are all approved and important upgrades to facilities in order to attract and keep international training and competition, and for local and regional employment and economic development. Underway this summer on the conservation easement lands are new ski trails with lighting and snowmaking, a welcome center/base lodge, snowmaking reservoir, alpine coaster, funicular, new trailheads to the High Peaks, and much, much more.

On the forest  preserve’s 350 acres will go a new biathalon stadium, new sewage  treatment plant, lighting in parking lots and much more that is hardly in line with Article XIV. Plenty of trees have already been cut down for these and other purposes, as the photos show. I appreciate, however, that ORDA’s leadership took the time to consider, re-plan and reduce the number of trees to be cut by several thousand trees this spring.

As you can see, a whole lot of what I and others view as unconstitutional activity has occurred and will continue to occur on these 350 acres at Mt. Van Hoevenberg.  Forest preserve watchdogs have not always been able or willing to block all of it. We’ve tried, sometimes successfully, to persuade DEC and ORDA not to do certain blatantly unconstitutional things here.  At other times, there were many competing priorities to claim advocates attention and facilities got built that should not have. Because the State once considered this acreage non-Forest Preserve, for a long time state agencies never thought a constitutional amendment at Mt. Van Hoevenberg was necessary. Now, after 39 years of recreational development and no longer any dispute that some of the land is forest preserve, the idea of amending Article XIV to constitutionally “clean up” Mt. Van Hoevenberg has emerged. We shall see where that idea goes.

Meanwhile, I am grateful to those long before who achieved, for a tiny piece of the forest preserve in North Elba, the court decisions rendered in McDonald v. Association for the Protection of the Adirondacks. The application of those decisions 90 years later remain highly relevant and Park-wide in size and in scope – as just demonstrated by the Appellate Division Third Department in its July, 2019 ruling for the plaintiff Protect the Adirondacks that the cutting of many thousands of trees to construct snowmobile community connector mini-roads throughout the Preserve is unconstitutional.

My thanks to Norman J. Van Valkenburgh, former Director of the DEC’s Division of Lands and Forests, for his scrupulous attention to Article XIV throughout the Adirondack and Catskill Parks during his career. For this post I referred to his booklet The Forest and the Law II (Van Valkenburgh and Forsyth, authors, published by the Association for the Protection of the Adirondacks in 1996).

Norm Van Valkenburgh concludes his 1996 booklet The Forest and the Law II  with these words: “So I ask the question again. Is eternal vigilance really necessary to assure the foreverness of the Forest Preserve? The answer is obvious.”

Photos, from above: Ongoing construction activity pursuant to the UMP by ORDA at Mt. Van Hoevenberg; and construction at Mt. Van Hoevenberg going on this summer pursuant to the UMP.

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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.

13 Responses

  1. Paul says:

    If this is unconstitutional, what is needed is a faster way to get approval for what to do on intensive use land rather than needing a constitutional amendment. The amount of IU land is minuscule in comparison to the other categories and obviously extremely important for local economic development type projects. These venues are very important for attracting people to the area including ones that will use and see the other more protected lands and fight to make sure they remain well protected. I would concentrate my legal efforts elsewhere.

  2. David Gibson says:

    Thanks. As I hoped I made clear in the post, we have concentrated legal efforts on wilder, larger Adk landscapes. Where we can persuade ORDA not do undertake blatantly unconstitutional projects, we do that. As for an Art 14 amendment to “clean up” Mt. Van Hoevenberg, I am not advocating for that here. But it has come up.

  3. Tony Goodwin says:

    Several comments on the above article:

    For the 1932 bob run case, my source is Hal Burton, an early proponent of the amendment that allowed construction of Whiteface Mt. Ski Area and one who worked closely with NYS on other winter sports issues. He said that the court case was just a way for Godfrey Dewey of the Lake Placid Club to sell the land owned by the Club without having it appear that he or the Club secured the Winter Olympics just for their personal benefit. Now Hal wasn’t always accurate, but this seems quite plausible.

    I thought that the SLMP in 1972 pretty much ended the issue of non-Forest Preserve state acquisitions by creating the Intensive Use classification. According to Eleanor Brown, the actual facilities built on these lands were classified Intensive Use while any land not needed for the facility became full Forest Preserve.

    Finally Dave, we had a conversation when the biathlon trail paving was proposed. I noted that there were paved roads at most state campgrounds and that Mt. Van Hoevenberg had the same Intensive Use classification as those campgrounds. In that conversation, you didn’t indicate that all that pavement should be torn up, so what was the problem with a bit more pavement that would be used for non-motorized athletic training? I have doubted whether the money that had been donated would have been sufficient to build a paved trail that would have survived more than a winter or two, but in principle it could have bee done.

    I agree that there remains a need to be vigilant about intrusions onto the Forest Preserve, but somehow the tiny fraction the is classified as Intensive Use does not need the same degree of vigilance

  4. Paul says:

    Anything that gets more people off the devices and doing things like cross country skiing should by constitutional!

  5. Bob Glennon says:

    I thoroughly researched the so-called “non-Forest Preserve” issue for the Berle Commission, and wrote a lengthy, quintessentially exquisitely boring Technical Paper on it. In plain English, the “Hamilton County Case” is simply wrongly decided; there was colloquy at the 1894 Constitutional Convention about inserting the immortal words “now fixed by law” in the draft constitutional provision, the delegates discussing they were doing so to prevent future legislatures from changing the definition: “The law is contained in the statute of 1893.” That statute defines the preserve as the lands of the State, now owned or hereafter acquired, within certain counties. If I recall correctly (I’m sitting in a two-hour delayed, grounded United flight on the tarmac at O’Hare), there were a few limited exceptions, like the prison lands in Altona and Dannemora, but there’s another boring legal principle known as expressio unius that translated from Latin means if the Legislature states some things it means to exclude others. In plain English (I hope): the 1893 definition is the one “fixed by law,” and the definition can’t be monkeyed with by the Legislature or State bureaucrats.

    THANKS Dave!

    • Todd Eastman says:

      As the 1893 definition predates zoning and land use planning, the Preserve would have to mean that administrative structures like trails, bridges, locks, fire towers, parking lots, the DEC and APA buildings would not be in compliance…?

    • Todd Eastman says:

      If “now fixed by law” means what Bob indicates, then the Preserve could have nothing built, nor trees cut in any parcels brought into the Preserve since 1893…?

      • Bob Glennon says:

        No; the MacDonald decision specifically allows a very considerable use of the woods, and says so, as long as a material degree of “timber” is not removed.

        BTW, the July 3 decision of the Appellate Division, Third Department, to which Dave refers, agreed with an unnamed “historian” witness (Phil Terrie) and Protect’s ecological experts that “timber” does not mean only merchantable stuff. First, trees under 3″ doh can be 75 years old; second, all sizes contribute to the ecological health of the Preserve (DEC had been considering only stuff over 3″ when doing tree counts for Forest Preserve projects).

        Lotta yipping and yelping out there that the State must appeal; it has ’til mid-August to do so. Stay tuned.

  6. Big Burly says:

    I’ve always wondered about the 1893 statute and how much land was actually NY State owned at the time … or was it a ‘taking’ of lands as understood in clause 2 of the 5th amendment to the US Constitution? Anyone care to comment?

  7. Blaikie Worth says:

    Thanks, Dave, and other knowledgeables. Slogging through these legal thickets
    will always be essential to protect the Preserve.

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