This is the second article in a 5-part series that looks at amendments to Article 14, Section 1, the famed forever wild provision, of the State Constitution. This article looks the Mt. Van Hoevenberg Olympic Winter Sports Complex in the Adirondack Park, managed by the Olympic Regional Development Authority. The first piece looked at the recent history of Article 14 amendments.
Protect the Adirondacks has long believed that an amendment to Article 14, Section 1 is needed for the Mt. Van Hoevenberg Winter Olympic Sports Complex currently managed by the Olympic Regional Development Authority (ORDA). At Mt. Van Hoevenberg, ORDA currently manages 1,220 acres +/- of Forest Preserve classified as Intensive Use by the Adirondack Park Agency (APA). Abutting these lands is 319 acres of lands owned by the Town of North Elba, Essex County. This complex houses the Olympic bobsled and luge track, cross-country skiing and biathlon trails, and associated facilities.
The “split” ownership of the winter sports complex is partly the result of two famous Article 14, Section 1, legal decisions in 1930, one by the Appellate Division, Third Department, and the other by the New York Court of Appeals, that struck down plans by the State of New York to build a bobsled track on New York State’s “forever wild” Forest Preserve lands in the Adirondack Park at this location. This lawsuit, Association for the Protection of the Adirondacks v MacDonald, (the Association was a precursor organization of Protect the Adirondacks) forced the State to build the bobsled track for the 1932 Winter Olympic Games on lands owned by the Town of North Elba.
Since then, the State of New York has placed much of the buildings and other facilities on Town lands, but in the intervening eight decades the State has also undertaken a number of questionable actions on the Forest Preserve lands at Mt. Van Hoevenberg that clearly violate Article 14, Section 1. For instance, there are buildings that straddle the Town-State boundary. There are paved roads that are connected on Town-State lands. There are parking lots that straddle the Town-State boundary. There has been tree cutting on the Forest Preserve in excess of constitutional limits, as established in the Association v. MacDonald decisions. Many of these violations pre-date the formation of ORDA in the mid-1980s, but others have occurred during ORDA’s stewardship.
Protect the Adirondacks has long stated our belief that state management of Mt. Van Hoevenberg has at times violated the State Constitution. These are particularly glaring given that these violations exist within the literal and actual shadow of the historic Association v. MacDonald decision, the first major Article 14, Section 1, legal decision and defining case law. We have raised these issues during Unit Management Plan (UMP) review and hearings, among other forums. Our concerns forced adjustments to ORDA’s plans at various points in the past, but other violations occurred nevertheless.
Today, ORDA is implementing an unprecedented surge of construction funded by hundreds of millions of dollars in state money to renovate nearly the entire Mt. Van Hoevenberg complex. Much of this work is being undertaken so that the facility can meet international winter sports competition requirements for trail standards for major events, the first of which is the World University Games in 2023. We believe that a number of actions in this massive renovation and expansion violate Article 14, Section 1. We believe that the best remedy is an amendment to Article 14, Section 1.
In the Legislature, a two-pronged test is used to evaluate the need for an Article 14 amendment. First, the amendment should be a remedy of last resort that resolves a clear problem and provides a clear public benefit. Second, the amendment should be consistent with past amendments, written as either a “land swap” or “use” amendment.
The Problem and Public Benefit Tests
It’s important to note that in addition to the Mt. Van Hoevenberg Winter Sports complex, ORDA also manages three alpine downhill ski areas owned by the State of New York – Gore Mountain and Whiteface Mountain in the Adirondack Park and Belleayre Mountain in the Catskill Park. Each of these ski areas is built on Forest Preserve and is governed by an Article 14, Section 1 amendment that sets parameters while also enabling management activities and upgrades to keep these facilities consistent with changes in the sport of alpine downhill skiing. Whiteface Mountain was approved in 1941. Gore Mountain and Belleyaire Mountain were approved in 1947. Both of these amendments were written to allow for the construction, annual operation, and growth of these facilities.
At all three of these ski areas the State is allowed to build and operate facilities that would otherwise be prohibited on the Forest Preserve, subject to specific limits in the constitutional amendments that authorized them. Since taking over the management of these facilities, ORDA has been able to operate them within the bounds set by these amendments successfully. However, the nonconforming state facilities at Mt. Van Hoevenberg are not expressly authorized, nor are they subject to constitutional limits, like the other three facilities.
Protect the Adirondacks believes that now is the time for an amendment for the Mt. Van Hoevenberg complex similar to those in effect for Whiteface Mountain, Gore Mountain, and Belleyaire Mountain. Such an amendment would create clear lines for future administration while providing a measure of flexibility for future growth. The current expansion of the Mt. Van Hoevenberg complex, and vast amount of state spending there, demand that action be taken now to bring this facility into compliance with the Forever Wild clause. At this point, the only way to accomplish this is to pass an amendment.
If an amendment is not pursued, we’re left with two choices: 1) accept continued blatant violations of the Forever Wild provision by the State of New York; or 2) go to court and sue the State. Neither option is appealing. Acceptance of blatant violations of our State Constitution by the State of New York is an intolerable situation for all New Yorkers and for the people’s land – the Forest Preserve.
Protect the Adirondacks has been involved in a constitutional lawsuit alleging violations of Article 14, Section 1, since 2013. No other organization has shown that it has the appetite to stand up for Forever Wild and challenge the Cuomo Administration to defend Forever Wild. We are currently defending a 4-1 decision in our favor from the Appellate Division, Third Department, at the New York Court of Appeals, that found the State violated the constitution by cutting massive numbers of trees to build a network of new Class II Community Connector Snowmobile Trails in the Adirondack Forest Preserve. This lawsuit has consumed years of work. The State could probably also find a better use for the resources that it has wasted defending its mismanagement of the Forest Preserve. We believe that a lawsuit regarding Mt. Van Hoevenberg should be avoided by an amendment that brings the facility into compliance and sets firm boundaries for future management.
Protect the Adirondacks has assessed this issue and finds that the only viable option to resolve this problem is through an amendment to Article 14, Section 1.
Consistency with Past Article 14, Section 1 Amendments Test
Clearly, an amendment for Mt. Van Hoevenberg would be a de facto “after the fact” amendment. These have happened in the past (Raquette Lake Water Supply in 2007, Route 56 in 2009) and should be avoided whenever possible. Nevertheless, we believe such an amendment is necessary here. Given the historic failure of the State of New York to comply with the Forever Wild provision of the State Constitution at Mt. Van Hoevenberg, Protect the Adirondacks believes that the Forest Preserve and People of the State of New York should be adequately compensated for ORDA’s development of Forest Preserve lands by the purchase of additional lands for the Forest Preserve.
Protect the Adirondacks believes that a new amendment for Mt. Van Hoevenberg should be drafted similar to the “use” amendments passed for Whiteface Mountain, Gore Mountain, and Belleyaire Mountain. Here are those amendments:
November 4, 1941: Whiteface Mountain Ski Area
“nor from constructing and maintaining not more than twenty-five miles of ski trails thirty to two hundred feet wide, together with appurtenances thereto, provided that no more than five miles of such trails shall be in excess of one hundred twenty feet wide, on the north, east and northwest slopes of Whiteface Mountain in Essex county…”
November 4, 1947: State Ski Areas Gore, Belleayre
“nor from constructing and maintaining not more than twenty-five miles of ski trails thirty to two hundred feet wide, together with appurtenances thereto, provided that no more than two miles of such trails shall be in excess of one hundred twenty feet wide, on the slopes of Belleayre Mountain in Ulster and Delaware counties and not more than forty miles of ski trails thirty to two hundred feet wide, together with appurtenances thereto, provided that no more than eight miles of such trails shall be in excess of one hundred twenty feet wide, on the slopes of Gore and Pete Gay mountains in Warren county.”
Those two amendments were “use” amendments that allowed for the creation of those alpine ski areas while placing limitations on their size and scope. “Appurtenances” are all things associated with an alpine ski area – parking lot, ticket both, ski lift, gondola, lodge, restaurant, etc., but don’t include non-skiing facilities such as hotels and golf courses. The “appurtenances” language also allowed for changes to the sport of downhill skiing over the decades, for things like expanding water lines and snowmaking, which are now a necessity, but were not 40 years ago.
Protect the Adirondacks supports an amendment for Mt. Van Hoevenberg that is similar to the amendments above, with the exception that we strongly urge that the Forest Preserve be compensated in a significant manner due to the State’s recklessness and decades of lack of fidelity to the Forever Wild provision of the State Constitution.
Proposed Article 14, Section 1, Amendment Conceptual Language for Mt. Van Hoevenberg Given all of our concerns detailed in the foregoing, Protect the Adirondacks believes that an amendment to Article 14, Section 1, to resolve the Mt. Van Hoevenberg issue, could be organized similar to the following:
Notwithstanding the foregoing provisions, the construction, maintenance and management to international standards of not more than 322.26 acres of Nordic ski trails and appurtenances thereto is authorized on forest preserve lands at the Mt. Van Hoevenberg Winter Olympic Sports Complex on condition that the Forest Preserve is compensated with at least 1,500 acres of lands of equal or greater value.
Two things here are important to note. First, ORDA has communicated to state officials and environmental organizations that it only needs authority to maintain 322.26 acres of trails and appurtenance areas in order to both meet current international competition standards for trail width and design and have some modest extra acreage to facilitate growth and upgrades if standards change in the future. These trails are widely spread throughout its 1,200-acre complex and other lands remain forested. Second, ORDA has also communicated that it does not need all of the lands currently classified as part of the Intensive Use Area and will contact the APA to reclassify over 200 acres as part of the neighboring High Peaks Wilderness Area as a gesture of good faith.
Protect the Adirondacks believes that all draft amendments to Article 14, Section 1, should be accompanied by enabling legislation that codifies how an amendment will be managed and operationalized. Enabling legislation for a Mt. Van Hoevenberg amendment should require legislative approval for the new lands of at least 1,500 acres to be added to the Forest Preserve in the Adirondack Park. The enabling legislation should include statements that all activities on the lands are subject to the Adirondack Park State Land Master Plan. We urge that this legislation include a statement that if the facility goes dormant in the future, there should be a clause that the trails will be allowed to revegetate. Last, the enabling legislation should recognize that 220+/- acres of the current 1,200+ acres of Intensive Use lands used by ORDA at Mt. Van Hoevenberg should be reclassified as part of the High Peaks Wilderness.
At this point it’s unclear when and if the Legislature will take up possible Constitutional amendments to Article 14, Section 1, due to upheavals in the legislative calendar. The political calendar makes action on a proposed amendment advantageous in 2020. If First Passage is approved by the Legislature in 2020, then Second Passage could be approved in 2021, followed by a vote by the People of the State of New York in November 2021. If First Passage is delayed until 2021, then Second Passage and a vote of the People will not be available until the fall of 2023 at the earliest. This would significantly delay the resolution of major problems facing the Forest Preserve at the Mt. Van Hoevenberg Olympic Winter Sports Complex.
Read the first in this series of essays here. The next article in this series focuses on Camp Gabriels, the former prison in the Town of Brighton, Franklin County. The fourth focuses on Hamilton County’s plans to try and place an emergency communications tower on Cathead Mountain, which while the mountain summit is privately owned it is surrounded by Forest Preserve that would need to be accessed for power lines and a motor vehicle road. These amendments are in various stages of development. A fifth article looks at the DEC’s lobbying role in NYCO mining amendment of 2013, which raised serious questions about public accountability.
Photo of Mt. Van Hoevenberg courtesy Protect the Adirondacks.