Improving public access to the Adirondack forest preserve.

• Author: Braymer, Claudia
• Position: New York

1. INTRODUCTION

   The public's right to use and enjoy New York's state-owned lands in the Adirondack Park has little meaning when the public has no practical means of accessing the resource. (1) This situation occurs in areas of the Park where the State Land Manager restricts access or where the only practical method for reaching state land is along routes that cross private property. While this Article considers the role of the state in preventing public access to state-owned land, it primarily focuses on the role of private parties. When private land is the barrier, the public is left with the choice of either not enjoying those public lands or trespassing on private property in order to do so. Conflicts arise between private landowners and the general public who wish to enjoy wilderness areas that are not accessible without crossing privately-owned land. (2) In New York, if Adirondack landowners place posted signs on their property and trails, the public is prevented from traversing their land and, therefore, may be prevented from experiencing the State Forest Preserve land lying just out of reach. Private landowners should not have the power to prevent the public from enjoying the natural resources to which they are entitled.

   Although New York has taken innovative steps to protect the integrity of its northern forests and to protect public recreation in these areas, New York must take further action to fully protect the public's right to use and enjoy pristine wilderness areas. Section II will examine the history of the Adirondack Park, and the Forest Preserve within, to establish that the public does have a right, although not unlimited, to recreation in the Adirondack Forest Preserve. The public's recreational rights on Forest Preserve lands must be identified in order to determine the extent of activities that may be properly permitted on private lands that potentially provide access to the Forest Preserve. Private lands should not be required to bear any more activity than what would be allowed on Forest Preserve lands. Next, Section III will review trespass laws and discuss the problem of decreasing public access. Finally, Section IV will review possible actions to protect the public's access to the Adirondack Forest Preserve while also considering the impact on private property interests. Potential solutions include using eminent domain or easements to acquire the necessary public access. In addition, New York's judicial doctrine or trespass laws could be revisited to create an exception that allows public citizens to cross private property for the purpose of accessing landlocked parcels of the Adirondack Park.

2. HISTORICAL BACKGROUND UNDERLYING THE RIGHT TO RECREATE

   The Forest Preserve, along with a Forest Commission, was first created by statute in 1885. (3) The Forest Preserve is comprised of any lands owned by the state within specific counties in the Adirondack region of New York. (4) It was inside this same territory where the legislature created the Adirondack Park, whose broad-sweeping definition encompasses "all lands located in the [F]orest [P]reserve counties of the Adirondacks within the [Park's] boundaries." (5) The scope of the Forest Preserve is both broader and narrower than the scope of the Adirondack Park. The Forest Preserve is broader in the sense that some Forest Preserve lands lie outside the boundaries of the Adirondack Park. (6) On the other hand, the Forest Preserve is also narrower than the Adirondack Park because private land is part of the Adirondack Park, but it is not Forest Preserve. (7)

   New York's Adirondack Park is one of the most magnificent land preserves in the world. (8) The Park is "greater in size than Yellowstone, Everglades, Glacier, and Grand Canyon National Park combined." (9) The roughly six-million acre Adirondack Park, established in 1892, is a unique creation in the United States because the Park consists of nearly three million acres of private land, as well as 2.8 million acres of state-owned land known, as previously noted, as the Forest Preserve. (10) It is estimated that over eighty million people (Americans and Canadians) are within one day's drive of the Adirondack Park. (11) Private land within the Park is subject to strict regulations governing development, timber harvesting, construction of roads, and even construction of cell phone towers. (12) The state-owned Forest Preserve is subject to the even more stringent provisions of the New York State Constitution. (13)

   The wild beauty and vast reaches of the Forest Preserve are forever protected by virtue of the state's constitution. Dissatisfied with the Forest Commission's lax management of the statutorily protected Forest Preserve, the delegates to the 1894 Constitutional Convention adopted an amendment to the New York State Constitution elevating the Forest Preserve's protection. (14) The constitutional provision, referred to as the "forever wild" clause, (15) provides that "[t]he lands of the state, now owned or hereafter acquired, constituting the [F]orest [P]reserve as now fixed by law, shall be forever kept as wild forest lands" and "the timber thereon [shall not be] sold, removed or destroyed." (16) More than a century later, there is still "almost a total absence of court decisions" interpreting this important provision. (17) The full meaning of the Forest Preserve's protection must be viewed in light of the laws and circumstances existing at the time of the Constitutional Convention. (18)

   The purposes of the Adirondack Park were embedded into the constitutional protection given to the Forest Preserve. (19) Protecting the timber in the Forest Preserve through the constitution was meant to protect the Adirondack Park's "threefold purpose of promoting the health and pleasure of the people, protecting the water supply as an aid to commerce, and preserving timber for use in the future." (20) The Forest Preserve was considered both a "great water supply" and a "vast sanitarium." (21) The concept was to create a "health resort and playground with the attributes of a wild forest park." (22) While the framers of the constitutional provision primarily sought to prevent the commercial cutting of timber in upstate New York in order to protect the state's water supply, they did not intend to completely insulate the lands from humans; the Forest Preserve was created for the "use and benefit of the people." (23) Therefore, even though the Forest Preserve is protected from commercial exploitation, its "protection does not prohibit use and enjoyment of the areas by the people of the State." (24)

   An examination of constitutional history gives some insight into what the framers meant by "public use." The seedling ideas for the creation of a public park in the Adirondacks may have been planted when Congress established Yellowstone National Park as a place for public recreation because the bill creating New York's State Park Commission was introduced just two weeks after Yellowstone was approved by the President. (25) Indeed, "many thousand[s] [of] persons" were already visiting "the Adirondack lakes and mountains in pursuit of repose, recreation, and health." (26) In 1890, Governor Hill envisioned a state park with small parcels of leased land for "camps, cottages, and buildings" to be used as a summer or winter resort. (27) However, after the constitutional amendment in 1894, only "temporary cover," such as a tent, could be used when camping in the Forest Preserve. (28)

   In addition to camping, "outdoor sports" were the other primary form of recreation in the Adirondack region. (29) There was a great concern for sustaining the population of food fish and game, especially deer, (30) in the Adirondacks for hunting, fishing, and trapping. (31) Governor Roosevelt extolled the virtues of going "into the wilderness," or "tak[ing] part in any field sports with horse or rifle." (32) The "phenomenal development of self-propelling vehicles" and the resulting increase in the use of public highways allowed previously inaccessible areas of Forest Preserve to be reached more easily. (33)

   Today, a balance must be struck between the preservation of the Forest Preserve and public use of the Adirondack Park "in order to fully satisfy the constitutional mandate." (34) The lands of the Adirondack Park were to be "forever reserved, maintained and cared for as ground open for the free use of all the people for their health and pleasure." (35) Although recreation is a critical component of the Park, it must not be "inconsistent with [the Park's] preservation as forest lands in a wild state." (36) Therefore, the constitutional mandate requires restraint of the public's recreational use of the Park to ensure the Forest Preserve remains wild.

   The "forever wild" clause prohibits any type of recreation that entails cutting a "substantial" amount of timber or that interferes with the wilderness character of the Forest Preserve. (37) Some cutting of timber to promote the public's safe recreational use of the Forest Preserve is not violative of the "forever wild" clause as long the public's use does not "harm or injure the wild forest nature of the preserve in any way." (38) The New York Court of Appeals has held that recreation requiring the cutting of 2,500 trees in the Forest Preserve is not permissible. (39) In Helms v. Reid, the plaintiff challenged the constitutionality of various uses that have been permitted in the Adirondack Park including construction of public campsites, dirt access roads, lean-tos, ranger stations, fire watch towers, utility lines, boat launchings, parking lots, and the overuse and misuse of back country trails. (40) The court decided that a determination of the constitutionality of these uses required a trial to answer questions of fact, but noted that the uses may be permissible if 1) they were "reasonable" in light of the amount of timber that had to be cut and 2) they did not "impair the...