The proposed zip line on Whiteface Mountain faces Constitutional questions

May 22, 2017

One project hyped in Governor Andrew Cuomo’s budget announcements early in 2017 was a zip line that would run in three stages from near the summit at Whiteface Mountain, near where the gondola brings passengers, to the base of the mountain. This was proposed as a way for Whiteface to rival zip lines at other ski areas in the northeast U.S. that were trying to expand summer tourism and resort operations.

One of Governor Cuomo’s press releases billed the Whiteface zip line as “one of the longest zip lines in North America.”

The budget approved last month includes $20 million in funding for capital projects for the Olympic Regional Development Authority (ORDA), which has no shortage of projects to expand and improve existing facilities as well as simply to maintain three ski areas, one cross country ski area, the ski jumps and Olympic Arena. For ORDA there are always roofs to replace, infrastructure to rebuild, and new code items to meet.

In promoting the zip line at Whiteface, Governor Cuomo never mentioned any constitutional hurdles to surmount. He never mentioned any issues with Article XIV, Section 1, the forever wild provision of the NYS Constitution. This is a key omission by the Governor because in my reading of the NYS Constitution a zip line is not authorized in the amendment for the construction of the Whiteface Mountain Ski Center.

Article XIV, Section 1, of the NYS Constitution is a covenant between the governed and their government for the management of the Forest Preserve. Major decisions for the Forest Preserve are not to be made by state government leaders or state agency bureaucrats, easily swayed by political influences and special interests, but are to be directly made by the people of the State of New York. Simply put the people of the state make the big decisions over the people’s lands. It appears to me that when the people of the State of New York approved the amendment for the Whiteface Mountain Ski Center in 1941, they did so to approve a downhill ski area and not a summertime amusement park.

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.”

Article XIV, Section 1 was amended in 1941 to include “constructing and maintaining not more than twenty-five miles of ski trails thirty to two hundred feet wide, together with appurtenances thereto, provided that no more than five miles of such trails shall be in excess of one hundred twenty feet wide, on the north, east and northwest slopes of Whiteface Mountain in Essex county.”

“Appurtenances” has consistently been taken to mean only the infrastructure that supports downhill skiing. The phrase “together with appurtenances thereto” is used not only for Whiteface Mountain, but also for similar amendments for the Gore Mountain and Belleayre Mountain ski areas that were similarly approved. The infrastructure to support downhill skiing has been taken to include ski lifts (from T bars to chair lifts to gondolas), snowmaking systems of pumps, sprayers, and water pipes, base lodges, maintenance buildings, ski racing association buildings, and parking lots.

Merriam Webster’s Collegiate Dictionary, 10th ed., says an appurtenance is (a) “an incidental right (as a right-of-way) attached to a principal property right and passing in possession with it,” (b) “a subordinate part or adjunct,” and (c) “accessory objects.”

A zip line can hardly be considered a subordinate part or accessory object of a downhill ski area. Using it does not require skis, nor is it part of the sport of skiing. A zip line at Whiteface Mountain is not covered under the 1941 constitutional amendment. As with the proposed bobsleigh run that was found to be unconstitutional in Association for the Protection of the Adirondacks v. MacDonald, 253 N.Y.2d 234 (1930), a zip line would violate Article XIV, Section 1. The only way that a zip line could be constructed at Whiteface Mountain would be through a new amendment to Article XIV, Section 1.

Before it undertakes any expense for planning, engineering or design for a zip line on Whiteface Mountain, ORDA should request a formal opinion from the New York Attorney General about the constitutionality of a zip line. New York Attorney General Eric Schneiderman should step up the plate and issue an opinion on Governor Cuomo’s zip line on Whiteface Mountain.

ORDA’s top priorities for its new $20 million for capital projects in the budget are to rebuild base lodges at Gore and Whiteface as well as to improve the kids ski schools at each facility, undertake a complete rebuild of the Saddle Lodge at Gore Mountain, convert the old gondola building at the top of the Straight Brook Chair on the summit of Gore Mountain into a warming hut/restroom facility, as well as other key infrastructure needs at the Mount Van Hoevenberg Ski Area and Olympic Arena.

A zip line at Whiteface Mountain is hardly a burning priority. ORDA should not only seek a formal opinion from the New York Attorney General but also from the Department of Environmental Conservation (DEC) and Adirondack Park Agency (APA). These agencies should go on record with their assessments. If the Cuomo Administration resolves to move ahead with a zip line regardless of constitutional implications, ORDA will need to undertake public comments and environmental impacts under the State Environmental Quality Review Act and develop an amendment to the Whiteface Mountain Unit Management Plan, which will then need to be reviewed and approved by the APA.

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