ORDA Should Not Play Games With Article XIV

March 13, 2019

It’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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