In the Adirondacks, forever wild vs. the dead hand

Photo:  Daniel Case via creative commons Wikipedia

Photo: Daniel Case, Creative Commons, some rights reserved

Last week, voters across New York state voted by a narrow margin to approve a controversial land deal in the Adirondack town of Lewis, allowing NYCO minerals to mine roughly 200 acres of “forever wild” forest preserve land.

The proposal — known as Prop 5 — divided environmentalists, with three of the state’s largest green groups supporting its passage, and a coalition of smaller groups vehemently opposing the measure.

As a journalist, obviously, my job isn’t to take sides.

In this case, even privately, I remain conflicted after months of listening closely to and reporting on the passionate debate that unfolded before and after the vote.

I’ve heard strong arguments for and against the project.

But I also find a fascinating ideological tension at play, one that transcends the specific merits and demerits of this deal.

On the one side stands a reasonable argument that Article XIV of the state constitution – the “forever wild” provision — is meant to be very close to a locked box.  The language of the article is very specific.

It states that the lands of the state in the Adirondacks “shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold.”

The reasons for this kind of no-fudging-allowed clarity are found in the often troubled history of the Adirondacks.  The landscape inside the blue line was ravaged in the 1800s by over-harvesting of timber.

State officials allowed a wide variety of questionable practices on public and private lands, many of them carried out by the Conservation Department itself.

There were repeated pushes to crack open the Park’s forest preserve for development, including an effort to create a network of hydro dams and reservoirs on the upper Hudson River in the late 1960s.

So when green groups draw a fierce ideological line in the sand, they can point without hesitation at the Park’s ecological vulnerability, and at the very high constitutional threshold established more than a century ago to curtail abuses.

“If [the principle of] forever wild can’t be saved from the jaws of a mining company to be clearcut, blasted and mined, then when can it be saved?” asked Protect the Adirondack’s Peter Bauer after Proposition 5 was approved.

Set against this hard but principled stance is the idea that the Adirondacks is a “peopled park” and the understanding – also clearly established in the state constitution – that there will be times and places where flexibility and nuance are needed.

The principle here is just as important as forever wild.  It holds that the “dead hand” of past decision-makers shouldn’t rule absolutely and in perpetuity over the lives of future Adirondackers and New Yorkers.

Making changes to the “forever wild” forest preserve isn’t easy – such an act requires a full-blown amendment to the state constitution – but it is possible.  And that’s by design.  It’s not a loophole or an oversight.

This tension between two equally vital concepts is hard-wired into our system.

Neil Woodworth, an attorney who heads the Adirondack Mountain Club, argues that in rare instances it will make sense to allow private individuals and companies to gain chunks of state land for private use.

He points to past instances where International Paper and National Grid took ownership of parcels of the forest preserve – with more than 8,000 acres of wild lands being transferred to IP.

Last week, the Township 40 vote also offered title to small pieces of forever wild land to dozens of home- and business-owners around Racquette Lake.

“You couldn’t have done this without the whole [constitutional amendment] process, two consecutive passes by the legislature, and then a referendum by voters,” Woodworth noted.

Critics of the NYCO deal argue that in this case a constitutional amendment wasn’t warranted or justified.  Fair enough.

The language of Article XIV clearly urges New Yorkers to set a very high bar for making transfers of this kind in the Adirondacks, especially in cases involving private corporations.  It’s perfectly reasonable to question whether the standard was met here.

But supporters of the NYCO project were able to garner enough backing – including from prominent environmentalists, Republicans, Democrats, union leaders, local elected officials, and others – to make it through the long gauntlet of the amendment process.

It’s significant and it’s worth repeating that lawmakers and state officials didn’t just “sell” the two hundred acres of park land in question.

Instead, there was a long debate, involving a wide cross-section of New York society.  The proposal survived a series of very high hurdles, bipartisan action by both houses of the state legislature, followed by a democratic vote of all the state’s people.

It may be, of course, that we collectively got it wrong.

A lot of people will be watching NYCO to see if the land deal produces economic and environmental gains as promised.  We’ll see if it unleashes a flurry of other “land swap” proposals involving corporations, as critics have warned.

Whatever else happens, however, we know that one important principle was maintained last week.

That principle holds that the forever wild protections in the Adirondacks are important and worth defending with very strict constitutional thresholds.

But it also holds that in a democracy we get to continue making decisions — even bad ones, on occasion — about our lives and the policies and laws that shape our world.

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46 Responses to “In the Adirondacks, forever wild vs. the dead hand”

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  1. Will Doolittle says:

    I think they’re proposals, not propositions.

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  2. The Original Larry says:

    Like it or not, there is no “locked box” in the NY State Constitution, nor in any other constitution, for that matter. It’s that whole of the people, by the people, for the people thing, and it is clear what the will of the people is in this case. The real danger is that one group might dictate to all how things are going to be. Glad that didn’t happen here.

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  3. Brian Mann says:

    Will – Corrected, thanks. -Brian, NCPR

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  4. Walker says:

    Larry, there is, indeed, a locked box embodied in Article XIV.

    Locks have keys, and can be unlocked. In this case, the key is the constitutional amendment.

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  5. I guess where I disagree with ADK (of which I am a member) and Adirondack Council is this. It is not my priority to expand the overall size of the forest preserve now and forever more. I don’t want the forest preserve to encompass the entire Adirondack Park. My priority is to ensure that the land the public already owns is properly taken care of according to the Original Intent of Article XIV. I have to admit to being shocked that the two above organizations would support essentially revoking Forever Wild and replacing it with Temporarily Wild. People generally accept making constitutional exceptions for things like the National Grid land swap a few years ago. There is far less controversy about using public land for public benefit. But public land for private benefit is more controversial. NYCO is the sort of deal that Article XIV was deliberately worded to specifically bar. It violates Article XIV which is why it had to be done via amendment. The mining interests followed the correct procedure for making this exception and I’m not going to engage in Tea Party-style nihilism because things didn’t go the way I wanted. I’m okay with a certain degree of cooperation between green groups and business interests. But when those green groups abandon their will to defend Forever Wild, that’s where they lose me. Cooperation shouldn’t mean capitulation on the single core element of your raison d’etre.

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  6. Pete Klein says:

    If it were impossible to amend a constitution, any constitution, we would still have slaves.
    Feel free to add to that long list.

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  7. Will Doolittle says:

    Respect for the process is an issue with Prop. 5 and a lot of issues nationwide. It’s one thing to oppose a change, to fight the change and once the change is made, to fight to reverse it. It’s another to claim the process is invalid, especially after you’ve lost. We’ve seen some of that with Prop. 5 from people who didn’t want the state Constitution amended now saying the amendment process is flawed, or Article 14 has been somehow irrevocably damaged by a legal amendment, or the legislators and public were misled by corporate propaganda. Nationally, there is a whole lot of that going on — people who don’t like decisions that were legally arrived at trying to argue the democratic process by which those decisions were reached is invalid.

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  8. Paul says:

    I count seven bullet holes in the Wilderness sign. I like the anti-APA sticker on the one when the trail to Pine Pond crosses the SL Wild Forest-McKenzie Mt. Wilderness boundary. The trail with all the 4 wheelers tracks. Brian (the musing one) I agree that the focus should be on proper management and protection of the Forest Preserve land we already have. In this case it is a swap so there isn’t too much more or less to protest or more or less to manage.

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  9. The Original Larry says:

    Some people just don’t seem able to accept the fact that not everyone agrees with them and that the majority might actually want to do something else.

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  10. Peter Bauer says:

    It is not my intent in this post to argue the vote. My side lost. I respect that. I’m proud of the efforts on the vote no side, but we all know the result.

    But, the passage of Proposition 5 (or Proposal 5) was done with great sloppiness and slickness where major legal issues were nakedly deferred until after the vote.

    Many issues were hidden or glossed over during the Legislative process. When I lobbied this deal in the Legislature in the spring of 2013 and raised the issue of NYCO’s second mine I was told there was no second mine. High ranking officials at DEC had no idea there was a second mine. Nor did the media scrutinize this until very late in the game. During the two years of debate in the Legislature the DEC never produced a forest inventory or ecological assessment of the Lot 8 forest. When I got involved we were deep into the 2nd passage debate and this kind of information should have been widely known.

    Further, nobody in state government ever produced a legal assessment about how drilling on the Forest Preserve would be undertaken. When I raised the issue about the absence of accompanying enabling legislation with the NYCO amendment to manage this process I was told that would be completed after the vote. Talk about cynicism of the political process.

    What was clear to me in working on the two amendments with state leaders is that the NYCO amendment was treated wholly different than the Township 40 amendment. My feeling was that the state could extract a whole lot more from private landowners than they could from a corporation with top lawyers, lobbyists and powerful political backers.

    So, the NYCO amendment was passed without any enabling legislation, unlike Township 40, that clarified the legal process and the legal issues involved to finalize this deal. As a consequence, while there is a clear process going forward for the Township 40 lands resolution, the process ahead for the sale of part of the Forest Preserve to NYCO is anything but clear. In fact, it’s a complete muddle.

    But that’s how NYCO and the state wanted it. They did not want to complicate things while the NYCO amendment was being sold as a “jobs” program.

    Now, moving ahead there are many serious legal issues that need to be resolved.

    Please don’t read this that Protect the Adirondacks is going to sue.

    But, please be open to the fact that there are plenty of state laws that NYCO and the state need to obey as they drill on and effectuate the sale/purchase of the Forest Preserve. Some, unfortunately I fear, will involve tremendous legal gymnastics that will leave environmental protections further weakened.

    Here’s one. NYCO was granted the right to drill on the Forest Preserve in the State Constitution.

    Perhaps somebody would be kind enough to show me where the Adirondack Park State Land Master Plan authorizes drilling on the Forest Preserve?

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  11. Paul says:

    Peter, As far as litigation goes. Why would you not pursue it given some of the comments that you have made on this matter? It seems that you clearly feel that the proper procedures were not followed, the law is being broken, and you certainly have made it clear that you feel the outcome is devastating to the constitution. You must follow through if what you have been telling us is what you really feel is true?

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  12. Will D: Just because one says the Prop 5 undermines Article XIV does not constitute a rejection of the process. Disagreeing with the result or stating its probable impact does not equate to a rejection of the process. It constitutes wishing the result had gone differently. Sorry but people don’t need columnists’ permission to do that.

    People whine about election results all the time, even self-righteous saints like Original Larry. Far more often than not, they do so while accepting the legitimacy of the process. There are exceptions of course but this is still the norm.

    Now, those who care about the environmental health of the Park need to move beyond this and refocus their efforts in this regard to ensuring than NYCO actually fulfills its promises.

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  13. Paul says:

    “self-righteous saints” nice. Rather than re-focus maybe you should try and cool off.

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  14. Paul: Some people make real contributions to discussions on this blog, even though I disagree with them. Others limit themselves snide one-liners and snark. I don’t see a problem with calling out the latter but maybe you’re right that I should limit my responses to the former and stop feeding the trolls. Fair point.

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  15. The Original Larry says:

    Brian, you should stop trying to be so clever; you aren’t that good at it.

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  16. Peter says:

    Brian, is the land swap mechanism part of article XlV? What’s the history and legal standing on the land swap?

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  17. Peter says:

    The thing I find most disturbing is that “protecting” forest preserve land isn’t the best thing for the environment; managed forests are protected forests, and managed forests absorb at least 300% more CO2 than mature natural succession forests.

    At the very least, I’d like to see an amendment to article XlV to allow forest protection, through forest thinning & tree removal if necessary.

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  18. Henrietta Jordan says:

    As Brian M. observes, the debate was long and involved many stakeholders. As Peter B. observes, not all of those stakeholders undertook the due diligence they arguably should have. But the most chilling observation of this process, I think, is that one side spent over half a million dollars to persuade New Yorkers, the vast majority of whom were not privy to the legislative hearings, DEC findings, or even the articles and commentary on NCPR, Adirondack Almanack and other local news sources, to vote “yes.”

    Such is the world we live in, alas, where the merits of one side’s arguments can be buried in the other side’s PR blizzard. Yes, 501(c)(3) nonprofits can engage on direct and grassroots lobbying (a PR campaign aimed at non-members would generally qualify as the latter). but they are subject to financial limits (a certain % of their overall budget), and even if PROTECT and other groups HAD $500k to spend on the Prop 5 campaign, I’m pretty sure they would have endangered their nonprofit status by doing so.

    Time will tell whether Prop 5 was wise or foolhardy, but all of us who love the Forest Preserve (even those who voted FOR Prop 5) should recognize that when a private corporation not subject to any limits on grassroots lobbying can mount a PR campaign of this magnitude, there is danger ahead. I was in NYC right before the election and heard countless radio ads telling me that voting “yes” on Prop 5 was a vote to preserve the Adirondacks, with no mention of NYCO, mining interests, jobs, or even the land swap Prop 5 authorizes. If I lived in NYC, Westchester, or on Long Island, and that was the only message I heard about Prop 5, I probably would’ve voted for it.

    And yet, in today’s world, $500k is not very much to spend on a campaign to promote a constitutional amendment. What if an even bigger private interest had an even greater profit incentive to acquire Forest Preserve land and decided to spend, say $2 million–or even 5 or 10? I’d like to think that New Yorkers would be smart enough to reject such an attempt to hijack Forever Wild, but when I watch what goes on when big money hits the table, I’m not so optimistic.

    Again, time will tell whether the majority voters were right or wrong on Prop 5. But let us look down the road with our eyes wide open and resolve right here and right now that no one will ever be able to “buy” a constitutional amendment to Article 14.

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  19. Walker says:

    “Brian, is the land swap mechanism part of article XlV? What’s the history and legal standing on the land swap?”

    Peter, the amendment process is a part of the New York State Constitution. But the original language of Article XIV says that the land of the Forest Preserve “shall not be leased, sold or exchanged” so the swap is very much not a part of the article. That said, the amendments are presumably legal.

    As to allowing “forest protection,” that’s a concept that is an invitation to abuse– that’s exactly why the authors of Article XIV wrote it as they did. That, and because they wanted to preserve Wilderness, not a managed forest. There is a world of difference.

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  20. Paul says:

    Brian, I agree. Who likes snarky comments? But sometimes it only take a line to make a point. What Larry posted is actually a valid point. I also can’t stand some of the long diatribes that some folks submit.

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  21. Paul says:

    It is also interesting to note that many of the original supporters of Article 14 were trying to drive lumber prices up and increase the value of their Adirondack timberlands which they got in spades. The electorate basically gave a few individuals a monopoly on the Adirondack timber business.

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  22. Paul says:

    It is a locked box with a complicated combination.

    Walker, that is a good question. I don’t think there was any swap for Whiteface of the bobrun? A swap isn’t necessary. That is one reason that the NYCO deal isn’t that bad. If the precedent is that a swap is required for a commercial entity and it adds 7.5 times more land than it removes from the Forest Preserve it doesn’t seem as horrible as some described?

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  23. dave says:

    Two thoughts…

    First, implying that simply because something was done legally, or using legal procedures, that it is therefore above reproach and should not be questioned, is a very naive view of legal systems.

    It is the duty of citizens in a democracy to always be actively reviewing the legal systems and procedures to make sure they are accomplishing the goals they were designed to accomplish and protecting the things they were designed to protect. And if they are not, to question and criticize and try to tighten them up.

    Second, while driving back and forth to downstate last week I listened to about 10 hours of talk radio – ranging from Howard Stern to sports radio to local political programming – and everyone was talking about the election. I did not hear a single host or call-in listener express anything approaching a reasonable understanding of Prop 4 or 5. Most of the comments about them were actually pretty hilarious. Things like: “I think those had something to do with some woods upstate… either way, I just voted yes” (Don’t worry, I didn’t hear any of this silliness while listening to NPR)

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  24. Pete Klein says:

    Dave,
    Your observation about talk radio and people saying “I think those (prop 4 and 5) had something to do with some woods upstate” goes to show most people outside the Adirondacks don’t know much about the Adirondacks and could care less.

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  25. Paul says:

    I think it was Woody Allen who said that “the woods are where potpourri comes from”! That is what many folks from NYC know about the Adirondacks.

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  26. Paul says:

    “It is the duty of citizens in a democracy to always be actively reviewing the legal systems and procedures to make sure they are accomplishing the goals they were designed to accomplish and protecting the things they were designed to protect. And if they are not, to question and criticize and try to tighten them up”.

    No better opportunity to do this than the process involved with a constitutional amendment.

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  27. knuckleheadedliberal says:

    I am fascinated by Original Larry’s sudden conversion toward a liberal reading of the Constitution, or any ole Constitution you care to name. A very interesting perspective I’ll have to tuck away for later reference.

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  28. Paul says:

    Dave, the friends that I have in NYC actually asked me about this amendment and they were thinking differently. They heard about “mining” and were wondering if a no vote might be in order no matter the context.

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  29. Paul says:

    Knuck, good point. And remember to include the Supreme Court decisions regarding the same. I am thinking specifically about things like DC vs. Heller that you have mentioned as “judicial activism”.

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  30. knuckleheadedliberal says:

    Actual quote from my lawyer once in a discussion about a property:
    “are you from Jersey? No? Well, I’m from Jersey and anything north of Albany is the arctic tundra.”

    I think that is pretty much true for NYC too.

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  31. dave says:

    “No better opportunity to do this than the process involved with a constitutional amendment.”

    The constitutional amendment process as a means to fix the constitutional amendment process… Joseph Heller approves of this.

    “the friends that I have in NYC actually asked me about this amendment and they were thinking differently. They heard about “mining” and were wondering if a no vote might be in order no matter the context.”

    Everyone I know from downstate, and most of the people I heard on these talk shows, were taken in by the math. They didn’t know what NYCO was, didn’t know about Article 14, they just saw the -200 +1500 and assumed it must be a good deal. Absent additional background information, which I have to imagine was true of a heck of a lot of voters, I can understand how that math was very persuasive.

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  32. The Original Larry says:

    KHL,
    Of all the unkind and scurrilous things people have said about me, the intimation that I may have converted to liberalism is absolutely the worst. I deny it without qualification.

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  33. knuckleheadedliberal says:

    Geezum, I though it made you seem kind of warm and fuzzy.

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  34. Paul says:

    Knuck, did the wording of the amendment even include the acreage numbers for the swap? The vast majority of voters don’t have the time to read all the stuff that we did about this. They just saw the amendment when they were voting or maybe while they were waiting to vote. Like I said several people I know down here in the finger lakes saw that it included “mining” and they were concerned for that reason. This is a very liberal area where I live. NO is the default position.

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  35. knuckleheadedliberal says:

    Paul, you will notice I haven’t commented directly on the issue since there are lots of people on here with much better knowledge of the proposal than me. I wasn’t sure how I would vote going into the booth. I am swayed to some extent by the “what is it about Forever that you don’t get?” argument.

    But I also think that in the very long term this case will probably not be a precedent for future development – at least I hope so. I dont believe the Park was created to be a pristine biosphere reserve. There has been mining in the past, and lots of it, but I believe that this particular mining will not be incredibly detrimental to the Park in the short term and in the long term the Park is expanded. Nature does after all include us, and the real problem is not in trying to separate us from nature but in integrating our activities in a way that is as harmless as possible.

    I voted yes.

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  36. The Original Larry says:

    Now “warm and fuzzy”? That might be worse than liberal. I might have to change my screen name.

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  37. Paul says:

    I was going to vote no on this since I did not see why the company had to give us 7.5 times as much land in the swap. The precedent is already there so I didn’t see that as an issue. The other proposal in Raquette Lake was also giving 216 private entities, some of them commercial, and any of them with commercial potential in the future, and that one was broadly supported. I don’t think those opposed had really thought it through. Maybe it was just a marketing thing sine they are trying to position their groups as the radical alternative. I didn’t even consider the jobs thing.

    This swap increased the size of the forest preserve involved a commercial entity that will eventually pack up shop and leave and give the rest of their land to the state. Big deal. I voted Yes also.

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  38. Peter: Article XIV specifically bans land swaps of this sort, which is why the NYCO deal required a constitutional amendment.

    Paul: Yes, sometimes it takes only a line to make a point. And sometimes issues do not lend themselves to pat one-liners. OLarry’s original point was self-evident but not really pertinent to the debate in question… which, I now admit, is why I should’ve ignored it.

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  39. Pete Klein says:

    One last comment on the constitutional amendments.
    Article 14 says “Forever Wild.” It does not say “Forever Wilderness.”
    You can call it whatever you want to call it but it is still just the woods.
    When people come up here, all they see are mountains, lakes, rivers and forest. They see a lot of trees. They don’t care how the APA classifies the trees. All they see are trees. That’s what they like to see.

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  40. The Original Larry says:

    This was my original statement:

    “Like it or not, there is no “locked box” in the NY State Constitution, nor in any other constitution, for that matter. It’s that whole of the people, by the people, for the people thing, and it is clear what the will of the people is in this case. The real danger is that one group might dictate to all how things are going to be. Glad that didn’t happen here.”

    I wrote that in response to Brian Mann’s statement “the “forever wild” provision — is meant to be very close to a locked box.”

    I don’t see how that isn’t relevant. What I do see is a silly ass baiting me because of a difference in philosophy or perhaps frustration with the outcome of the vote. Maybe it has to do with my calling out the propensity some groups have for dictating to others. Whatever it is, it is tiresome, obnoxious and adds nothing to the debate. I take the bait, Brian, and will continue to answer in kind, unless you take your own advice and ignore me or take my advice and shut up until you have something constructive to say.

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  41. Paul says:

    Larry, he isn’t talking about that comment.

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  42. The Original Larry says:

    Then he ought to be clearer before he starts insulting people and questioning their motives.

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  43. knuckleheadedliberal says:

    Larry, liberal isn’t a dirty word, especially not in the context of interpretation of the Constitution. It is just a different way of looking at things than the way I expect from you. The comment that I insulted you is more on the order of what I expect – you getting on a high horse over nothing.

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  44. knuckleheadedliberal says:

    I wish you liberal helpings of turkey, gravy, and pie for Thanksgiving. Especially the pie. Get it with a liberal scoop of vanilla ice cream, mmmmmm–mmmm!

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  45. The Original Larry says:

    What you need to get, KHL, is a sense of humor. I didn’t for a minute think you were serious and neither was I in the comments I made to you.

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  46. knuckleheadedliberal says:

    touche!

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