In a huge win for the New York State Forest Preserve, and those like me who love it, the Court of Appeals this morning held that the State’s destruction of thousands of trees to build 12-foot wide community connector snowmobile trails throughout the Adirondack Park violates the Forever Wild clause of the New York Constitution. The Court made clear that the Constitution forbids the State from unilaterally permitting projects like this one to be built in the Forest Preserve, without first giving the People of this State an opportunity to decide by voting on a constitutional amendment.
Starting with the legislative background that led up to the adoption the the Forever Wild clause of the Constitution, the majority noted that legislative attempts to protect the wild forests in the Adirondacks had proven ineffective. With that understanding, the majority noted, the delegates to the 1894 constitutional convention “were determined to maintain the wild forest nature of the Preserve—’these wide-spread evergreen woods’—both because of their value as a ‘great resort for the people of this State’ and as a singular ‘capacious cistern, extending over this region’” (Opn, at 6-7). The intent of the Forever Wild clause drafters was clear:
The proposal was revised to ban the leasing of the land and the removal or destruction of timber. As revised, the amendment garnered unanimous support from the 1894 Constitutional Convention delegates and was submitted to a vote of the electorate and approved by the people of the State of New York. The drafters conceived that any use of the Forest Preserve contrary to the constitutional mandate may only be accomplished by an amendment approved by the electorate. The legislature, by more than a century of popular referenda proposing constitutional amendments for projects large and small within the Forest Preserve, confirmed and honored the Convention’s solution. Thus, since becoming law in 1895, the people of New York have voted to amend article XIV, § 1, a total of 19 times to permit specific encroachments on the Forest Preserve.
This intent is seen in the Forever Wild clause’s plain language: “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.” That is a strict prohibition.
And although the Court had recognized nearly 100 years ago that the Forever Wild clause’s commands must be interpreted reasonably to permit nonsubstantial and nonmaterial removal of trees, the intent that a constitutional amendment is required every time a substantial project is proposed in the Adirondacks and Catskills has remained unchanged. Indeed, the majority reasoned,
Notably, the majority rejected the State’s attempt to introduce a balancing test that would have allowed the DEC to balance policy interests against environmental preservation in determining whether a proposed development project in the Forest Preserve is permitted under the Forever Wild clause. The interest in providing more access to the Adirondacks is laudable, the majority noted, but the Forever Wild clause protects the forest in its most primitive state. That is precisely why the 1894 constitutional convention delegates took that decision out of the hands of bureaucrats in the first place. It is for the People to decide when a proposal is so worthwhile that the Constitution should be amended to permit it.
This is a strong decision that will go a long way to ensure that New York’s wild forests in the Adirondack and Catskill Preserves are protected by the will of the People for centuries to come. And that is exactly how it should be.
**Disclaimer: My firm and I were proud to represent the Adirondack Council and Adirondack Wild: Friend of the Forest Preserve in filing an amicus brief in this case. A copy of our amicus brief is here:
New York Appeals 