January 20, 1930 – Announcement from Association for the Protection…


  • January 20, 1930 – Announcement from the Association for the Protection of the Adirondacks (154 Nassau Street, NYC) –


The provision of Section 7 of Article VII of the New York State Constitution which declares that the Forest Preserve “shall be forever kept as wild lands,” has been upheld in strong and positive terms, by the Appellate Division, Third Department, in Albany, in a unanimous decision rendered on January 15, which holds that a bob-sleigh run and return-way cannot be built on State land in the Town of North Elba, Essex County, and that a law passed in 1929, authorizing it, is unconstitutional. The decision is the clearest and most definite judicial interpretation of Section 7, Article VII, which has ever been handed down, and if upheld, as is expected, in the Court of Appeals, to which it will be taken, it will afford a strong safeguard in the future against similar attempts to encroach upon the people’s preserve.

The action was started by the Association for the Protection of the Adirondacks, an organization of men and women interested in the conservation of the Adirondack Preserve for many years, and by John G. Agar, its president, against Alexander Macdonald. Conservation Commissioner, and William G. Howard, Superintendent of the Division of Lands and Forests. The controversy was submitted on an agrees statement of facts.

The case was argued in the November term, before Presiding Justice Charles C. Van Kirk, and Associate Justices Harold J. Hinman, Rowland L. Davis, James P. Hill and G. D. B. Hasbrouck. The opinion was written by Justice Hinman.

After a review of legislation which preceded the Constitutional Convention in 1894, in which the provision that the State lands “shall be forever kept as wild forest lands,” was placed in the Constitution which went into effect in 1895, and a discussion of the objects of those who were responsible for that strongly protective measure; and of earlier interpretations of the mandate, by the courts and Attorney General, Justice Hinman said:

“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 with its preservation as forest lands in a wild state. It must always retain the character of a wilderness. Hunting, fishing, tramping, mountain climbing, snow-shoeing, 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 man0made are unmistakably inconsistent with the preservation of these forest lands in the wild and natural state in which Providence has developed them.

“This bob-sleigh run and return-way require the clearing of four or five acres of forest lands, the cutting of 2600 trees must unquestionably be regarded as of “’timber’ size and the blasting of some fifty cubic yards of rock from their natural state, to say nothing of the cuts and fills of earth and safe surface for the sport and return-way possible to a steep slope to the top of the slide.

“If clearings of timber from lands owned by the state in the Forest Preserve are sanctioned for such a purpose, they are equally sanctioned for the construction of public automobile race tracks, airplane landing fields, all of which are out of harmony with forest lands in their wild state. There will be no limit to such encroachments that will crowd through the door if such precedent is established.

“As we view it, the Legislature has no power to open that door. If the People desire to use their great park for such recreation, a constitutional amendment is necessary. It may be too late to avail in the case of this bob-sleigh run, in time for the projected Olympic Games, but the argument for selecting a site on state lands rather than at Mount Jo on privately owned lands is not only one of expediency. It is easier and cheaper to construct and slightly more accessible. These of course are not considerations having any weight in the determination of the constitutional question involved.

“Justice Hinman devotes considerable attention to study of the records of the Constitution of 1894, to determine the meaning of the provision that ‘the lands of the state, now owned or hereafter acquired, 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.’ Such study makes it clear to him that the purpose of the framers was to preserve the timber ‘intact.’ Amendments weakening this object, permitting thinnings, sale of firewood to campers, and destruction of timber by flooding, were rejected. ‘The Convention,’ said Justice Hinman, ‘deliberately chose to perpetuate the forest preserve as just wild forest lands.’

“ The Court notes that the Legislature has permitted use of not more than three percent of the State Forest Lands for reservoirs for municipal water supplies, and has authorized the construction of two state highways. The Constitutional Convention of 115, which incorporated the 1894 provision verbatim except that it added the words ‘trees and” before timber., then expressly added provisions for reforestation, fire trails, and removal of dead trees, apparently deeming it necessary to make such provisions by constitutional change. Several legislatures have considered that constitutional amendments were necessary to authorize leasing of camp sites, removal of dead, burned and fallen timber, and construction of roads and trails for protection against fire.

‘From 1895 to 1919,’ says Judge Hinman, ‘successive Attorneys General have uniformly given opinions advising strict constitutional construction against cutting timber belonging to the state in the Forest Preserve; against removal of burned timber; against the cutting away of a ledge of rock in the Forest Preserve in improving an existing highway.’ A later opinion, counter to the uniform trend, approved cutting of trees for construction and improvement of roads.

‘If, however,” said the Court, ‘there are doubtful questions which might arise under this mandate, particularly as to legislation or acts of the Conservation Department looking solely to the preservation of the character of the preserve as wild forest lands, or to the prevention of their destruction by fire or otherwise, such doubt does not exist here. Statutes relied on by counsel which deal with safeguarding these forests, covering such projects as fire, observation towers, fire lanes, and even the laying out of roads and paths, which do not necessarily involve the cutting of timber, so not sustain the construction of a bob-sleigh run involving the conceded cutting of 2,600 trees. Chiefly counsel have sought to justify a bob0sleigh run because it will tend to carry out one of the conceded purposes of the Forest Preserve, namely, a park ‘open for the free use of all the people for their health and pleasure.’ The Court then shows, as before quoted, that sports which require artificial settings are inconsistent with the intent of the section involved.

Those who secured the enactment of the law authorizing the construction of the proposed bob-sleigh run on State land, desired to hold the bob-sleigh competitions in the third Olympic Winter Games, to be held at Lake Placid in January or February 1932, on the slide on state land, near Wilmington Notch, on the west side of the Sentinel Range. The decision in the Appellate Division prohibits such use of state lands, but the court points out that it is possible to construct and maintain a bob0sleigh run in the same vicinity on lands privately owned. A site which has been surveyed for that purpose is on Mount Jo, in the same township of Mount Elba, on Heart Lake, and only a little farther from the center of the Olympic Games at Lake Placid that the proposed location on state land. There is plenty of time for those interested to construct such a slide and return-way on Mount Jo.

The case was argued by Jacob Gould Shurman, Jr., of Schurman, Wiley and Wilcox of New York City, counsel for the plaintiffs, the Association for the Protection of the Adirondacks; by Hon. Hamilton Ward, Attorney General (through C. S. Ferris) for the defendants, Mssrs. MacDonald and Howard; and by Wallace T. Stock, of Lewis, Garvin & Kelsey, of New York City, as amicus curiae representing the Public Park and Playgrounds District of the Town of North Elba.