Most people probably agree it’s not the intent of the original drafters of the state consitution to allow totally unbridled development in the forest preserve. Article XIV Section 1 of the State Constitution 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. [… exceptions removed]

It’s pretty clear that on Forest Preserve lands that the following is totally inappropriate:

• Commerical facilities, such as shopping or amusements.
• Government facilities that are not primarily rustic in character (i.e. wooden administrative cabins and barns that lack plumbing and electricity)
• Highly developed recreation facilities, such as large metal or concrete luge tracks, ski slopes
• Asphalt roads, and those roads designed for movement of vehicles not exclusively for the forest preserve use, or for speeds greater then 25 MPH.

Controlling Principles Of Recreation in the Forest Preserve.

I think most people can agree forest Preserve must have an essentially wild character. Indeed, that is what the Court of Appeals upheld in Association for Protection of Adirondacks v MacDonald (253 N.Y. 234, affg 228 App Div 73, 1930), as I shared earlier this week. If you missed this earlier in the week, this case’s essence is cited in Balsam Anglers Club v. DEC (153 Misc. 2d 606, 1991).

Respondents adopted the UMP in furtherance of the Catskill Park State Land Master Plan, which was adopted in order to provide classifications and guidelines for the uniform protection and management of State-owned lands within the Catskill Forest Preserve. Under the UMP, respondents intend to construct a number of small parking areas providing access to trails and primitive campsites, to relocate certain trails to avoid private lands and to construct new trails within the Balsam Lake Mountain Wild Forest area. Since respondents must necessarily cut a certain number of seedlings, saplings and trees to complete such projects, petitioner contends that the UMP is in violation of article XIV, § 1 of the New York State Constitution. p>The Constitution provides, “[t]he 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.” Petitioner contends that the cutting of as many as 2,000 “trees”, most of which are less than three inches diameter at breast height, constitutes the removal or destruction of timber.

This specific constitutional issue has rarely been litigated. The Court of Appeals and the Appellate Division in Association for Protection of Adirondacks v MacDonald (253 N.Y. 234, affg 228 App Div 73) addressed legislation authorizing the construction of a bobsled run within the Adirondack Forest Preserve for the 1932 Winter Olympics.

The Appellate Division addressed the legislative history of the New York State Constitution and found an intent to prevent any actions “which might convert this preserve into anything but a wilderness” (228 App Div, at 79). However, the Appellate Division found that the framers of the New York State Constitution obviously distinguished between “timber” and any form of tree or wood. They quoted the framers as stating, “[a]ny campers that cannot pick up something on the shores, that will not be timber, to warm themselves with, would better either carry in their fuel or stay out” (supra, at 78). (emphasis added)

The Appellate Division also discussed the 1915 Constitutional Convention which sought to change the wording of the New York State Constitution to “trees and timber” (supra, at 79). Thereafter, the Appellate Division found that the project involved “the cutting of 2,600 trees which must unquestionably be regarded as of `timber’ size” (supra, at 82).

Based upon an 609*609 agreed statement of facts, all 2,600 trees were in excess of 3 inches diameter at breast height, 480 trees were in excess of 8 inches and 33 trees were in excess of 20 inches. The project involved total clearing of between 4 and 5 acres, some of which constituted first growth hardwoods and involved the removal of some 60,000 board feet of timber. The Appellate Division held the legislation unconstitutional based both upon the substantial destruction of timber and the nature of the proposed project.

The citation of Helms v. Reid, 90 Misc. 2d 583 gives further incite into the Assocation for the Protection of Adirondacks vs McDonald case:

The major case interpreting the “forever wild” clause is Association for Protection of Adirondacks v MacDonald (228 App Div 73, supra). The question before that court was whether a statute passed by the Legislature providing for the construction of a bobsled run on forest preserve land and the necessary cutting of some 2,600 trees was violative of section 7 of article VII of the Constitution (presently art XIV, § 1). The Appellate Division had carefully traced the adoption of the forest preserve language and then made a careful inspection of the record from the 1894 Constitutional Convention where the “forever wild” clause language was adopted as a proposed amendment to the Constitution. The Appellate Divison concluded that the constitutional mandate was clear and in declaring the statute unconstitutional stated at page 81: “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 595*595 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 unmistakeably inconsistent with the preservation of these forest lands in the wild and natural state in which Providence has developed them.”

What About Developing More Modest Recreation Facilities in Forest Preserve?

Certainly building a bob sled run would have been a massive project with visible impacts on the mountain vistas where the timber was removed, the steel infrastructure of the bob sled run, and the general changes the wild forest character. But what about more minor projects, e.g.

• Scenic Vista Cut Along Trails
• Primative tent campsites, along lakes, streams, or in the woods.
• Roadside campsites with vehicular access.
• State Campgrounds with Flush Toilets and Showers.
• Horse stalls and horse barns.
• Construction of hiking trails that require the cutting of brush or a de minis amount of timber.
• Construction of snowmobile trails that potentially could involve cutting a larger amount of timber.
• Horse trails that require the cutting of brush or a de minis amount of timber.

The Case Law on Recreational Facilities in the Forest Preserve.

We learn in Helms v. Reid, 90 Misc. 2d 583 some of debates surrounding adoption of Article XIV Section 1 of the State Consitution, and how the Consitutional Convention of 1894 intended not to prohibit “all things necessary” to provide public access and not damage the forst preserve.

The Court of Appeals decision in MacDonald is of great importance and must necessarily be the guiding light in the analysis of the “forever wild” clause which this court must follow in rendering its opinion. At page 238 Judge CRANE states: “The words of the Constitution, like those of any other law, must receive a reasonable interpretation, considering the purpose and the object in view. (State of Ohio ex rel Popovici v. Agler, 280 U. S. 379.) 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.”

This language sets forth that the purpose of the “forever wild” clause was to prevent the commercial exploitation of the forest preserve which had previously been sanctioned by the Legislature, and it appears to be the court’s feeling that some cutting is permissible as long as it is not a substantial amount. Continuing on page 238: “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.”

This language indicates the court’s recognition of the fact that even though the Constitution was intended to protect and preserve our natural forest lands, such protection does not prohibit use and enjoyment of the areas by the people of the State. Such a principle is based upon the theory that the forest preserve was for the use and benefit of the people and was not to be an isolated area in which no man would wander. (People v Adirondack Ry. Co., 160 N.Y. 225, affd 176 US 335). (emphasis added)

While the Court never ruled on these matters in Helms, plantiff Herbert R. Helms cited that the State Conservation Department, made major changes and “man-made improvements” to the Adirondack Forest Preserve, over the past 50 years, many of them of questionable consitutional virtue under McDonald, abit never challenged in court.

The first cause of action in the complaint sets forth the “forever wild” clause and then lists various uses undertaken within the forest preserve in the past and present by the New York State Department of Environmental Conservation (ENCON), which the plaintiffs contend destroy the wild forest nature of the preserve because they all entail cutting significant amounts of timber and over use of the forest preserve area. The purported misuses are as follows: construction of 42 or more public campsites; dirt access roads to these campsites, along with various outbuildings, facilities, boat launchings, sewage disposal systems and the maintenance thereof; construction of hundreds of lean-tos, trails, jeep trails, fire roads 587*587 and paved roads other than those specifically authorized by the Constitution; construction and maintenance of ranger stations, fire watch towers, telephone and electrical transmission lines, as well as other utility lines; construction of boat launchings, parking lots and tent platforms; overuse and misuse of backwoods causing unreasonable widening of trails, littering and defoliation of areas, and finally allowing private individuals to adversely possess forest preserve lands to the preclusion of other citizens.

Helms cites McDonald in saying limited development and recreation is allowed in the park, as long as it’s primarily primative in nature:

“What may be done in these forest lands to preserve them or to open them up for the use of the public, or what reasonable cutting or removal of timber may be necessitated in order to properly preserve the State Park, we are not at this time called upon to determine. What regulations may reasonably be made by the Commission for the use of the park by campers and those who seek recreation and health in the quiet and solitude of the north woods is not before us in this case. The Forest Preserve and the Adirondack Park within it are for the reasonable use and benefit of the public, as heretofore stated. A very considerable use may be made by campers and others without in any way interfering with this purpose of preserving them as wild forest lands. (See `The Problem of the Wilderness’ by Robert Marshall in `The Scientific Monthly’, Feb. 1930, p. 141.)”

Helms goes further to state:

If we assume that a constitutional amendment is not necessary for every use in the preserve which requires a cutting of timber, then we must apply our reasonableness standard to proposed uses. The question then becomes, who is to apply this standard?

It would appear that although the Constitution has deprived the Legislature of any power to authorize a cutting of timber in the forest preserve for commercial purposes, it has not deprived that body of its power with respect to public purposes. The MacDonald decision has allowed the Legislature the power to make reasonable regulations as to this public use and preservation, and such use and preservation must necessarily include some cutting of timber.

Since the Legislature still retains at least this limited authority, it may properly delegate this authority to the administrative agency best adapted to applying the principles heretofore enumerated. This is precisely what our Legislature has done by the creation of the Adirondack Park Agency. (emphasis added)

While ultimately Helms went on to decline an attempt to overturn float plane restrictions in newly designated “Wilderness” areas, first implemented by Governor Rockefeller’s Environmental Conservation Commissioner, Henry Diamond, it did include this important note:

In the discussion of the “forever wild” clause it was pointed out that the preserve was not to be closed to the public, but was to be held open for all of the public to enjoy in its natural wild state. Therefore, plaintiffs’ main theory is correct, and any regulation which arbitrarily restricts public access to or a reasonable public use of the lands in the preserve is violative of section 1 of article XIV.

The principle of limited development of the Adirondack and Catskill Forest Preserve, to enhance public access was upheld most recently in Balsam Lake Anglers Club v Department of Environmental Conservation (upheld on Appeal to 2nd Appelate Division). It states:

Respondents adopted the UMP in furtherance of the Catskill Park State Land Master Plan, which was adopted in order to provide classifications and guidelines for the uniform protection and management of State-owned lands within the Catskill Forest Preserve. Under the UMP, respondents intend to construct a number of small parking areas providing access to trails and primitive campsites, to relocate certain trails to avoid private lands and to construct new trails within the Balsam Lake Mountain Wild Forest area. Since respondents must necessarily cut a certain number of seedlings, saplings and trees to complete such projects, petitioner contends that the UMP is in violation of article XIV, § 1 of the New York State Constitution.

The Constitution provides, “[t]he 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.” Petitioner contends that the cutting of as many as 2,000 “trees”, most of which are less than three inches diameter at breast height, constitutes the removal or destruction of timber.

This specific constitutional issue has rarely been litigated. The Court of Appeals and the Appellate Division in Association for Protection of Adirondacks v MacDonald (253 N.Y. 234, affg 228 App Div 73) addressed legislation authorizing the construction of a bobsled run within the Adirondack Forest Preserve for the 1932 Winter Olympics. The Appellate Division addressed the legislative history of the New York State Constitution and found an intent to prevent any actions “which might convert this preserve into anything but a wilderness” (228 App Div, at 79). However, the Appellate Division found that the framers of the New York State Constitution obviously distinguished between “timber” and any form of tree or wood. They quoted the framers as stating, “[a]ny campers that cannot pick up something on the shores, that will not be timber, to warm themselves with, would better either carry in their fuel or stay out” (supra, at 78). The Appellate Division also discussed the 1915 Constitutional Convention which sought to change the wording of the New York State Constitution to “trees and timber” (supra, at 79). Thereafter, the Appellate Division found that the project involved “the cutting of 2,600 trees which must unquestionably be regarded as of `timber’ size” (supra, at 82). Based upon an 609*609 agreed statement of facts, all 2,600 trees were in excess of 3 inches diameter at breast height, 480 trees were in excess of 8 inches and 33 trees were in excess of 20 inches. The project involved total clearing of between 4 and 5 acres, some of which constituted first growth hardwoods and involved the removal of some 60,000 board feet of timber. The Appellate Division held the legislation unconstitutional based both upon the substantial destruction of timber and the nature of the proposed project.

The Court of Appeals in affirming the Appellate Division determination rejected the absolutist argument that not even a single tree or even fallen timber or deadwood could be removed and stated that the constitutional provision must be interpreted reasonably. “[A]ll 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. Unless prohibited by the constitutional provision, this use and preservation are subject to the reasonable regulations of the Legislature” (supra, 253 NY, at 238-239). It is thus clear that the Court of Appeals determined that insubstantial and immaterial cutting of timber-sized trees was constitutionally authorized in order to facilitate public use of the forest preserve so long as such use is consistent with wild forest lands.

With respect to the relocation of the Hardenberg Neversink Trail challenged herein, petitioner contends that the amount of cutting is of constitutional dimension. The relocated trail is in excess of two miles long and is approximately six feet wide. With the trail approximately 80% completed, 73 trees of timber size, that is three inches or more, have been cut, including one nine-inch tree and one six-inch tree which was dead. The remaining trees are three, four or five inches in diameter. It is estimated by the court that the entire cutting, including trees not of timber size, that is, less than three inches, amounts to little more than one cord of firewood. The great majority of such cutting will be completely decomposed within a few years leaving no trace of their existence but 610*610 providing increased growth opportunity for the remaining trees in the forest.

It is therefore determined the amount of vegetation, seedlings, saplings and timber-sized trees destroyed so far in the construction of the relocated Hardenberg Neversink Trail is not constitutionally prohibited, nor is the number of trees planned to be removed to complete such relocation. While the actual route for the Millbrook Ridge Trail has not been chosen and it is not known how many trees, saplings, seedlings and other vegetation must be destroyed, it may be presumed that the Department of Environmental Conservation, pursuant to its regulations concerning the construction of trails and the destruction of trees and timber, will comply with the provisions of the New York State Constitution. In the event that the Department of Environmental Conservation does not comply, petitioner could certainly challenge the specific trail route or construction techniques at an appropriate time.

Petitioner also contends that the construction of new trails in the Balsam Lake Mountain Wild Forest area violates that portion of the New York State Constitution which requires that forest preserve lands “be forever kept as wild forest lands”, arguing that new trails will increase human activity, thereby necessarily making such areas less wild. Based upon the decisions of the Appellate Division and Court of Appeals in Association for Protection of Adirondacks v MacDonald (supra), it appears that the framers of the New York State Constitution intended not to prevent or hinder public use of the forest, but to allow forested areas to revert to their natural or wild state without human interference with the natural succession of different types of trees, selective cutting or thinning to “improve” the timber, or the harvesting of any mature timber. There is no indication of any intent to maintain the forest in an “absolutely” wild state with no organized human alteration or intervention at all.

The Court of Appeals specifically held that facilities consistent with the nature of the forest preserve could be constructed for the use by the public, including camping and hiking. Such use facilitated by the construction of new trails or increasing parking and camping areas will almost certainly degrade the pristine quality of certain areas of the forest preserve. While it may be desirable to initiate a policy to refrain from actions which will have the effect of increasing human activity, such issues are not of constitutional dimension unless significant cutting of timber is involved. Accordingly, it is declared that the Unit Management Plan adopted for the Balsam Lake Mountain Wild Forest area does not violate the provisions of article XIV of the New York State Constitution.

What is the Standard Held This Cases?

Over the years, the courts have created a certain principles on recreation facilities in Adirondacks. Distilled down, one can probably agree that courts in NY State hold:

• Any project to be constructed in forest preserve must cut as few trees as possible, particularly of timber-grade trees, those larger then 3″ in diameter. Any project requiring significant timber cuts are unconstitutional.
• There is a clear preference towards development of facilities in natural meadows and brushy areas, locating paths, trails, and roads on existing old woods road rather then cutting new roadways or trails through the woods.
• Limited timber cutting is allowed for essentially wild forest purposes, such as campsites and trail location. It must be as limited as practical.
• Any developed facilities must be rustic in nature (wood, painted brown), and must exist solely to complement forest preserve uses such as primative camping, hiking, hunting and fishing.
• Intensive use areas are allowed, such as developed state campgrounds or firetowers, but they can not change the forest character or require the excessive removal of timber.

… the courts have sought a balance between recreational demands and keeping the primarily wild nature of forests wild.