Adirondack Forest Preserve Survives Constitutional Assault

In the latest of a series of challenges to the integrity of New York's Adirondack Park, a New York Supreme Court judge has upheld the "reasonable" regulation of public lands within the Park that are constitutionally protected as "forever wild." The ruling reinforces earlier New York decisions affirming the validity of the Park and its management but raises potentially troublesome legal and tactical questions about the Park's future. In light of the Park's controversial and innovative nature, renewed challenges are certain but it now appears that discretionary administration of the Park will be insulated to the satisfaction of neither preservationists nor developers and residents.

Protection of the Adirondack Park

The Adirondack Park in upstate New York — comprised of about six million acres between Albany, Lake Champlain, Rochester, and Canada — is the largest wilderness area in the eastern United States.¹ A patchwork of public and private lands, it is dotted with inaccessible lakes, several high (for the East) mountains, and has about 125,000 permanent and 90,000 seasonal residents. About 3.7 million acres in the Park are privately owned. Indeed, only one percent of landowners own over 50 percent of private lands; historically, these large landowners have been wealthy families and timber companies. Also, nonresidents own 60 percent of the private land in the Park.

Public lands in the Park — the forest preserve — constitute about 38 percent of the area, or about 2.3 million acres. This land benefits from a unique protection — the New York Constitution's "forever wild" clause, which states in part:

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.²

This provision was added to the New York Constitution in 1895 to protect the state forest preserve from depredations of commercial timbering that had occurred in the late 19th century. Surprisingly resistant to weakening by commercial interests for many succeeding years, the constitutional mandate was implemented only in 1971 when the New York legislature countered increasing pressures on the Park — brought about by completion in 1967 of Interstate 87 linking Montreal and New York City — by enacting the Adirondack Park Agency Act.³

The Act established the Agency and commanded it to draw up a master plan for the state lands classified according to their capacity to withstand use and reflecting actual and potential uses on adjoining private lands, prepare a land use and development plan and establish permissible uses on private lands, and review proposed developments in the Park. The State Land Master Plan⁴ was approved in 1972 and set up seven use categories, the major ones being wilderness (about 45 percent of the lands; one million acres), wild forest lands (about 51 percent), and primitive (four percent; to be eventually upgraded to wilderness status). The plan specifies permissible activities, structures, and maintenance functions for each category. The Department of Environmental Conservation administers the plan for state lands and has promulgated implementing regulations, one of which, concerning seaplane landings on public land-surrounded lakes, was the subject of the latest challenge to the Act's constitutionality.

Constitutional Attack

As might be expected, these regulations did not remain unquestioned for long. The owners of an air taxi service that flies hunters and fishermen into remote lakes in the Park brought a three-count complaint against the Commissioner of the Department and the Chairman of the Adirondack Park Agency alleging that (1) various activities in and uses of the Park, including campsite construction, roadbuilding, and trail maintenance, violated the "forever wild" clause by allowing substantial timber curring, (2) the Master Plan's classification of the forest preserve lands into seven categories violated the "forever wild" clause, and (3) the plaintiffs' seaplane activities were no more deleterious than activities detailed in count one and therefore the prohibitory regulation was a violation of the "forever wild" clause. In Helms v. Reid,⁵ Judge Edmund L. Shea of the New York Supreme Court for Hamilton County granted defendants' motions for summary judgment against the second and third causes of action and held over the first cause for trial on the fact issues of whether the enumerated uses violate the "forever wild" provision.

In its argument on defendants' motion for summary judgment as to the second count, plaintiffs asserted, depending on one's point of view, either a strict construction or a constricted construction of the Adirondack's constitutional protection. From a preservationist viewpoint, eliminating all or most human activity in the Park would preserve its wild character, but from a managerial perspective, any human use of the Park requires some, though small, amount of disturbance of the forest preserve. Plaintiffs in essence were saying that if they could not fly seaplanes into the Park then no one else would have access to or use of the Park. This interpretation, if sustained, would certainly have had adverse political repercussions and possibly jeopardized the Park's existence.

Fortunately for the Park administrators, the court was [7 ELR 10149] not compelled to construe literally the quite direct constitutional mandate in the constricted manner suggested by theplaintiffs. Relying on dicta in the 1930 court of appeals decision in Association for the Protection of the Adirondacks v. MacDonald,⁶ which held that a statute authorizing construction of a bobsled run involving the cutting of 2,600 trees violated the "forever wild" clause, Judge Shea declared that:

Reasonable cutting and removal of timber is permitted, as well as reasonable regulations promulgated by the body in charge of the Adirondack Park so that campers and others may receive their full recreational benefit from the area, always remembering that such enjoyment must not harm or injure the wild forest nature of the preserve in any way.⁷

Judge Shea relied on MacDonald's statement that the constitutional protection must be construed reasonably in light of the evil — commercial timbering and exploitation — it was designed to remedy. Therefore, he concluded, a constitutional amendment is not required for each tree that is cut in the foest preserve. As public use was a guiding principle of the "forever wild" clause's inception, reasonable tree cutting to facilitate reasonable public use is allowable.

The judicial gloss in MacDonald made the Helms v. Reid court's rejection of plaintiffs' constriction argument nearly a foregone conclusion. It also supplied easy support for the court's finding that the legislature's limited authority to foster public use of the forest preserve was properly delegated to the Department of Environmental Conservation and the Adirondack Park Agency.⁸ Furthermore, the court was quickly able to answer the second count's more difficult question of whether the classifications in the State Land Master Plan met the reasonableness criterion. Taking declarations in the plan regarding the paramount intent of preserving the Park at face value, the court concluded that mere classification of state lands into different use categories, depending on their carrying capacity, was reasonable and constitutionally permissible. In essence, the court had to bypass the constitutional prohibition in order to defer to the managerial discretion of the administrative agencies in charge of the Park.

Plaintiffs' third count was a fallback position in which they alleged that prohibiting seaplane uses in the forest preserve arbitrarily restricted public use of the Park. This ingenious argument, which essentially resolves into a "but why me?" complaint, sought to take MacDonald's dicta regarding public use to its logical extreme. The court in Helms had previously determined, in a statutorily-based lawsuit complaining that the seaplane prohibition was arbitrary and capricious, that the regulation was within the department's statutory authority. Therefore, the constitutional question, for summary judgment purposes, of whether the department had the authority to issue the regulation could be answered in the affirmative under the analysis used in count two. Again, the "reasonableness" gloss on the constitutional language encompassed the administrative discretion to which the court readily deferred.

The Challenge in Perspective

In Helms v. Reid, Adirondack Park supporters took the somewhat unusual stand of arguing on behalf of administrative discretion to manage the Park. This cuts against the grain of several recent federal cases in which environmental advocates have insisted on the letter of the law to preserve wilderness designation,⁹ prevent clearcutting in the national forests,¹⁰ and preserve a small endangered fish, the snail darter, in the face of dam construction that would destroy the fish's habitat.¹¹ The tactical consequences of "going to the barricades" can be serious. The clearcutting decision caused substantial revisions in the laws concerning national forest management¹² and the snail darter decision energized opponents of the Endangered Species Act¹³ to seek to weaken the Act in the current session of Congress.¹⁴ For the present, Park preservationists may side with the managers, but such a convenient marriage may not survive the pressures of day-to-day managerial compromise.¹⁵

Helms v. Reid is merely the latest in the fusilade of unsuccessful challenges to the Park's implementation. Thus far, the New York courts have rejected the argument that the Adirondack Park Agency Act is a per se taking of private property.¹⁶ Also, any popular hopes [7 ELR 10150] that the Act illegally disregards local control prerogatives must have been dashed by a recent court of appeals decision declaring that the Act, as a regional planning statute, does not infringe upon the home rule protections of the New York Constitution.¹⁷ Furthermore, prohibition of development in the Park on purely aesthetic grounds has been upheld.¹⁸ Helms, by insulating state lands in the Park from depredations by private commercial interests, cements another brick in the wall of regulation for the Park.

Unfortunately, Helms may signal a corresponding insulation from judicial review of administrative management of the Park. This result is defensible only so long as the administrators conscientiously maintain a strong, protective posture, which seems likely given their constitutional and statutory mandate. The lack of a similar mandate has caused administrative confusion concerning the direction of management of the national parks.¹⁹ Considering the present judicial and administrative experience in New York, it appears that a similar fate does not immediately await the Adirondack Park.²⁰

1. See generally NATURAL RESOURCES DEFENSE COUNCIL, LAND USE CONTROLS IN NEW YORK STATE 10631 (E. Moss, ed. 1975); Booth, The Adirondack Park Agency Act: A Challenge in Regional Land Use Planning, 43 GEO. WASH. L. REV. 612 (1975); Davis, Land Use Controls and Environmental Protection in the Adirondacks, 47 N.Y. ST. B.J. 189 (1975); Kissell, Permissible Uses of New York's Forest Preserve Under "Forever Wild," 19 SYRACUSE L. REV. 969 (1968); Lewis, New York's Adirondacks: Tug of War in the Wilderness, 42 PLANNING NO. 8, at 9 (Sept. 1976).

2. N.Y. CONST. art. XIV, § 1.

3. N.Y. EXEC. LAW art. 27, § 800 et seq.

4. ADIRONDACK PARK AGENCY, ADIRONDACK PARK STATE LAND MASTER PLAN (1972).

5. 7 ELR 20519 (N.Y. Sup. Ct., Hamilton Cty. May 11, 1977).

6. 253 N.Y. 234 (1930), aff'g 228 App. Div. 73.

7. Helms v. Reid, 7 ELR 20519, 20523 (N.Y. Sup. Ct., Hamilton Cty. May 11, 1977).

8. See N.Y. EXEC. LAW art. 27, § 816(3).

9. Parker v. United States, 448 F.2d 793, 1 ELR 20489 (10th Cir. 1971).

10. West Virginia Div. of the Izaak Walton League v. Butz, 522 F.2d 945, 5 ELR 20573 (4th Cir. 1975). See Comment, Fourth Circuit Affirms Ban on Clearcutting in Monongahela National Forest, 5 ELR 10175 (1975).

11. Hill v. Tennessee Valley Authority, 549 F.2d 1064, 7 ELR 20172 (6th Cir. 1977), appeal docketed, No. 76-1701, 45 U.S.L.W. 3792 (May 31, 1977).

12. National Forest Management Act of 1976, amending Forest and Rangeland Renewable Resources Planning Act of 1974, 16 U.S.C. §§ 1601-1610, ELR 41441, and Forest Service Organic Act, 16 U.S.C. §§ 475-482, ELR 41405. See Comment, Major New Public Land Laws Provide Detailed Guidance for Activities of Forest Service, Bureau of Land Management, 6 ELR 10240 (Nov. 1976).

13. 16 U.S.C. §§ 1531-1543, ELR 41825.

14. Comment, Wildlife Protection: Marine Mammals, Endangered Species Threatened in Congress by Economic Concerns, 7 ELR 10124 (July 1977).

15. For instance, the Department of Environmental Conservation has been able to find the time and money to construct a remote ranger station and a large campground but has not made significant headway in removing nonconforming structures from wilderness and wild forest areas of the Park. 1 ADIRONDACK PARK AGENCY, COMPREHENSIVE REPORT 60-61 (Feb. 1976).

16. Wambat Realty Corp. v. Adirondack Park Agency, 6 ELR 20690 (N.Y. Sup. Ct., Clinton Cty. July 28, 1976); Horizon Adirondack Corp. v. State, 388 N.Y.S.2d 235, 7 ELR 20122 (N.Y. Ct. Cl. Oct. 21, 1976). See generally Savage & Sierchio, The Adirondack Park Agency Act: A Regional Land Use Plan Confronts "The Taking Issue," 40 ALBANY L. REV. 447 (1976).

Plaintiffs' arguments in takings cases in New York have recently become very difficult to sustain. Penn Central Transp. Co. v. City of New York, No. 273 (N.Y. Ct. App. June 23, 1977), aff'g 50 App.Div.2d 265, 377 N.Y.S.2d 20, 6 ELR 20251 (1975) (upholding landmark designation of Grand Central Terminal and transferable development rights over terminal building). See also Fred F. French Investing Co. v. City of New York, 39 N.Y.2d 587, 385 N.Y.S.2d 5, 350 N.E.2d 381, 6 ELR 20810 (1976), discussed in Comment, Losing the Battle … New York Court of Appeals Overturns Development Rights Transfer Scheme, 6 ELR 10276 (Dec. 1976).

17. Wambat Realty Corp. v. State, 41 N.Y.2d 490, 393 N.Y.S.2d 949, 362 N.E.2d 581, 7 ELR 20363 (1977).

18. McCormack v. Lawrence, 387 N.Y.S.2d 919, 6 ELR 20795 (N.Y. App. Div. 1976). See generally Comment, Aesthetics Off the Pedestal: Massachusetts Supreme Judicial Court Upholds Aesthetics as Basis for Exercise of the Police Power, 6 ELR 10036 (Feb. 1976).

19. See Sax, Helpless Giants: The National Parks and Regulation of Private Lands, 75 MICH. L. REV. 239 (1977). See also Futrell, Parks to the People: New Directions for the National Park System, 25 EMORY L.J. 255 (1976).

20. A current project of the Environmental Law Institute is studying the implementation of the Adirondack Park Agency Act. Funded by the National Science Foundation and headed by Gordon Davis, former counsel to the Adirondack Park Agency, the project should issue its initial report later this year.