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OPEN SPACE PLAN REVEALS THE SAME OLD ILLEGALITIES

DEC Fails to Reveal Full Extent and Impact of its Land Acquisition Plans

By Carol W. LaGrasse

Final Comments
Draft New York State 2001 Open Space Conservation Plan
November 28, 2001

If anybody else were to present a project the same way as DEC has presented its voluminous draft 2001 Open Space Conservation Plan, that person would be unceremoniously shown the door. At the very least, assuming that the applicant had not started work on the project, he'd have no chance whatever of getting a permit.

The DEC draft Open Space Plan violates both the spirit and letter of law created to protect local communities and their economies. In contrast to its grandiosity, the draft plan fails to take into account many basic common sense requirements, justice considerations, good government issues, and principles for the wellbeing and future of the State of New York.

Violation of the State Environmental Quality Review Act

In 1999, I organized a group of plaintiffs to challenge DEC's acquisition of the 139,000-acre Champion International lands for a number of reasons, including the fact that the agency failed to abide by its own rules under the State Environmental Quality Review Act, or SEQRA. The State neglected SEQRA's mandated analysis of the social, cultural and economic impact of its decision to demolish 298 hunting cabins owned by 45 hunting clubs on these lands.

The new draft Open Space Conservation Plan continues the same pattern. DEC's perfunctory generic environmental impact statement glosses over the impact on the rural culture and economy of the continuing onslaught of land acquisitions. There are no tables, maps, charts of thorough economic analysis, just bald-faced opinions, at most stating directions for potential analysis, and dismissive statements of no analytical value. One looks in vain for appendices with thorough data where the analysis on which the conclusion of no significant negative social, cultural and economic impact on the communities is based.

Perhaps even more seriously, the Open Space Plan omits a quantitative disclosure of the State's acquisitions so far and a disclosure of the State's intended acquisitions in the next five, ten, twenty, fifty, and one hundred years. The State's land acquisition goals are a moving target. This is in violation of SEQRA because it amounts to segmenting the State's project of land acquisition.


Violation of the 1990 Environmental Quality Bond Act Legislation

By failing to present a full quantitative inventory of its yearly acquisitions and accumulated land holdings, the state violates Sections 49-0205 and 49-0207 of the Environmental Conservation Law, as follows:

"49-0205. Comprehensive inventory of lands having statewide or regional significance

"1. In order to help provide a basis for strategy for the preservation of land resources in the state and the preparation of the state land acquisition plan, the department and the office shall prepare a comprehensive inventory of protected and unprotected resources having statewide or regional environmental, historic, cultural or recreational significance. Such inventory shall include the following:
"a. open space, forest land and park land owned by federal, state and local governmental entities;
"b. forest land in private ownership under the terms of section four hundred eighty-a of the real property tax law;
"c. wetlands protected by articles twenty-four and twenty-five of this chapter;
"d. agricultural areas, including agricultural districts created pursuant to article twenty-five-AA or the agriculture and markets law as recommended by the commissioner of agriculture and markets;
"e. water resources, including wild, scenic and recreational rivers, streams and aquifer recharge areas protected by article fifteen of this chapter;
"f. marine and other coastal resources, including coastal erosion hazard areas protected by article thirty-four of this chapter;]
"g. open space lands, forest lands and park lands dedicated by other than governmental entitles to ecological, wildlife management, forest management or recreational purposes; and

"h. lands which possess statewide or regional significance for historic, cultural, ecological, open space, outdoor recreation, resource protection or wildlife management purposes, including the purposes of restoring extirpated species.

"2. Such inventory, in such segments and such form as may be readily available at any given time, shall be available to the regional land acquisition advisory committees and other members of the public.

"49-0207. State land acquisition plan.
"1. The department and the office shall prepare a state land acquisition plan to guide selection of projects for state acquisition taking into account regional advisory committee priorities and the department's and office's assessment of need for land acquisition projects...

"2. Such plan shall include consideration of the inventory prepared pursuant to section 49-0205 of this title and shall identify those areas within the state which are not adequately protected in such categories."

(Section 49 of the Environmental Conservation Law, emphasis added)

The 1993 Environmental Trust Fund (ETF) Legislation and the 1996 Clean Water/Clean Air Bond Act

The State has made a baby step in abiding by the rules under the 1993 Environmental Trust Fund Legislation and the 1996 Clean Water/Clean Air Bond Act by finally setting up a procedure for requesting local town resolutions of approval before acquiring land in the towns. But there is no way for towns to know which parcels exceed the 1993 Priority list, requiring permission if funds are to be expended under ETF, or exceed the latest Priority list, requiring approval if funds are expended under the 1996 Bond Act. More primarily, referring back to SEQRA, it is not possible for towns to knowledgeably evaluate State acquisitions because the information is piecemeal, or "segmented." In spite of past problems, no system is set in place for so informing towns.

The DEC Open Space Plan will have great impact on many of the towns in the Adirondacks and elsewhere. Yet hearings are not held in the potentially affected towns. There is no publicity in each town about the potential impact. There is no DEC study of tax impact on each particular town, which could, for instance, be done by the State Office of Real Property Services.

Moreover, neither the Governor (in whose office the APA resides as part of the Executive Department), nor DEC (the agency which acquires land squeezed by the APA), nor the state Comptroller's office, nor the Attorney General's office have addressed the violation of the APA law where the agency is specifically enjoined from using its powers to cause land to be acquired by the State.

The APA law states:

"Nothing in this article shall be construed to empower the agency to acquire any interest in real property by purchase or condemnation. No right of first refusal or first option to purchase in favor of the agency, the department of environmental conservation or any other state agency shall in any way be created by this article or the land use and development plan."

(APA Law, at Section 819.4 of the Executive Law)

At the Open Space Plan hearing on November 14, 2001 in Ray Brook, the point was raised by a member of the public that the APA works in conjunction with DEC to acquire land for the State. The DEC spokesperson replied that the Department obtains land solely from willing sellers and denied any knowledge of this procedure. Yet, it is widely known that such pressure exists and can be crucial to the project. The Whitney acquisition is the most famous case in point. While environmental groups worked the public, the APA made it impossible for Whitney Industries to complete their application, and the two state agencies and a major land trust negotiated for the acquisition of their land. All DEC land acquisition in the Adirondacks should be put on hold until a full joint investigation of past acquisitions is conducted by the Comptroller's and Attorney General's offices.

The constitutional question remains whether the State can acquire partial title to lands as conservation easements within the "Forever Wild" Forest Preserve protected under Article XIV of the State Constitution. The argument has quietly continued among forest industry professionals and land rights activists for over a decade about whether the easements are constitutional, considering that easements are considered to be land under definitions in some state law and relevant documents, and because of common law considerations. For instance, the 1986 Environmental Quality Bond Act defines "lands" to encompass easements in Section 52-0101(2). In addition, the conservation easement law itself states:

"...no such easement shall be acquired or held by the state which is subject to the provisions of article fourteen of the constitution."
(Section 49-0303.1 ECL)

Yet, before this matter has been fully litigated, the Open Space Plan continues to call for large-scale acquisitions of conservation easements. In fact, DEC has done all in its power during the litigation that our group has brought about the Champion International acquisition to forestall the hearing of the merits of the arguments that such conservation easements cannot be constitutionally held on Forest Preserve lands.

At the same time, the DEC has failed to promulgate regulations implementing the conservation easement law. In what he considered to be an answer to this comment, DEC spokesman Thomas Wahl pointed out at the Ray Brook Hearing on November 14, 2001, that DEC has promulgated regulations governing specific conservation easement acquisitions. These rules governing specific acquisitions do not satisfy the requirement to promulgate overall regulations for conservation easements. DEC keeps these specific conservation easements confidential from the public under the exemption in the Freedom of Information Law until after the transactions are completed and entered into the deed records at the respective county clerks' offices. Without promulgation of regulations governing conservation easements, the public is cut out of the process of participation in this important part of the State's land acquisition policy and an important aspect of the Open Space Conservation Plan is kept secret from the public until after-the-fact.

Section 49-0305 of the conservation easement law states:

"7.The department shall promulgate regulations establishing standards for conservation easements which shall specify but not be limited to:
(a) the minimum term for a conservation easement as is necessary and appropriate to achieve the policy and purpose of this title, except that such standards shall not preclude taxpayers who own or convey conservation easements from qualifying for benefits under federal or state tax laws when such benefits would otherwise be available by virtue of such ownership or conveyance; and
(b) standards and procedures which require each conservation easement held buy a public body to include terms under which the easement shall be modified where the commissioner has found after a non-adjudicatory public hearing at which the public shall be given opportunity to be heard, that such easement is inconsistent with any other interest in land required for the local gathering, transmission or distribution of gas, electricity, water, telephone or cable television services and that no reasonable alternative exists for the local gathering, transmission or distribution of such service. Notice of any such hearing shall be given to the public pursuant to thirty days published notice in the state register, the environmental notice bulletin and in a newspaper having general circulation in the county where the real property burdened by the easement is situated and individual notice shall be given in writing to any person who may be entitled to enforce such easement pursuant to the provisions of subdivision five of this section at such address as such person shall file with the commissioner."

(ECL Section 49-0305.7)

Since the terms of specific conservation easements are secret until they are filed after acquisition, it is impossible for the public to comment on their compliance with the law.

Below appears the full text of a letter from then-DEC Commissioner John P. Cahill to Assemblyman Robert G. Prentiss, dated October 28, 1999:

Dear Assemblyman Prentiss:
I write in response to your letter regarding the status of regulations for conservation easements.
Pursuant to Section 49-0305(7) of the Environmental Conservation Law (ECL), the Department drafted regulations establishing standards for the implementation of conservation easements. The environmental/land trust community strongly objected to the inflexible nature of the draft provisions applied to all such easements. Unfortunately, a consensus among all the interest groups was never reached and a final regulation has not been promulgated.
To date, the Department and the land trust community continue to develop conservation easements and achieve the policy and purpose of the ECL on a case-by-case basis.
Please contact me if you have further questions in regard to this issue.

Sincerely,
(signed)
John P. Cahill

DEC should not acquire any more conservation easement lands until the regulations implementing the conservation easement law are promulgated. The portions of the Open Space Conservation Plan related to acquisition of conservation easements should be deleted until the regulations are promulgated.

Common Sense Fiscal Matters

Actually, many of the criticisms of DEC's Open Space Plan in this statement deal with common sense matters. What is the reasoning behind a limitless land acquisition process? It flies in the face of common sense. What is the logic of granting one group of organizations, the land trusts, tax exempt status for their land, when forest industry groups and private individuals who keep their land as forest pay taxes? Why grant tax relief to owners who sell conservation easements? The same tax relief could be granted if the land were continued in fee simple private ownership. If the government can afford to forgive or pay taxes when non-profits or conservation easements are involved, it can afford these forgone revenues or payments when the land is held in fee simple private ownership. Where is the fiscal logic that non-profit organizations are granted a break from real estate taxes when they are keeping their property as forest, the same state maintained by the ordinary property owner? Why does the State encourage property to leave the private sector, where not only are revenues lost from real estate taxes, but other tax revenues inherent to the private, productive ownership of land are lost as well?

The use of land trusts, or third party intermediaries, in the land acquisition process is fraught with fiscal irregularities. DEC's use of land trusts without any public bidding process, where a select group of organizations have a monopoly on the acquisition of land to flip to the State, defies fiscal reason. DEC's financial guidelines for "reimbursed" costs payable to land trusts are meaningless. Where is the comptroller's scrutiny? The same fiscal irregularity exists with the Natural Heritage Program, for which The Nature Conservancy has a monopoly, and actually shares DEC facilities and perhaps staff. The monopoly is supposedly explicable by the need to engage a unique set of professionals who only exist within TNC, but, as of my last examination of the contracts between DEC and TNC, the land trust did not have all of the specialized experts on its staff, but rather engaged some of them as consultants.

Returning to the topic of conservation easements, it is fiscal nonsense for the State to expand the use of conservation easements to hundreds of thousands of acres. So little equity remains in these lands that the final destination of their title is probably 100 percent State ownership. In fact, the environmental groups are already pressuring the State to "save" the Domtar lands, on which the State already has conservation easements. Divorced of the benefit of private management, these lands will present an additional burden to the State.

Environmental Justice

The draft Open Space Conservation Plan includes substantial violations of the concepts of environmental justice. Concerns about environmental justice arose in the Adirondacks substantially before the early 1990's when Benjamin F. Chavis, Jr., of the United Church of Christ, popularized concerns about supposedly environmentally unjust treatment of the minority racial group, blacks. In the case of blacks, toward whom the popular buzz-word of environmental justice was applied, the treatment was never proven to be selectively applied on a deliberate, wide level. Rather, evidence exists that the environmental justice campaign was a tool of national environmental groups to try to build ties with blacks, who regard the environmental movement as elitist, not without reason.

Many environmental justice concerns are overlooked, however. For instance, the rural people of the Adirondacks, with a total population of approximately 130,000, are a very small minority of the citizens and voters of New York State. They are routinely singled out as a specific group for persecution by the overwhelming majority of New Yorkers, who use their vast majority in the Legislature to carry out their ill-informed and prejudiced concerns caused by the misinformation promulgated by the same wealthy environmental interest groups who pretend concern for environmental justice. The property owners and residents in the Adirondacks are subjected to government policies that result in regulatory takings, which are violations of their fundamental rights under the Fifth Amendment to the U.S. Constitution, and continuing steps in the achievement of extreme environmentalist goals that amount to forced depopulation. As a result, the children born to Adirondack residents are commonly forced to seek employment elsewhere, schools struggle to stay open, jobs are low paying, unemployment (especially during the long, hard winter) is high, and communities decline.

Whole sections of the Adirondacks and northern New York are subjected to extreme land acquisition. The economy of the backwater northwestern Adirondacks is in a state of planned destruct. The "Northern Flow" acquisition has been largely acquired, at the expense of the local economy and communities and the "Bog River Flow" has been added in the new draft plan. What land will remain in private hands in the northwestern Adirondacks? What land will not be designated "Forever Wild" or acquired by conservation easements that are an irreversible giant step toward full government ownership, or "Forever Wild"?

At the November 14 Open Space Conservation Plan hearing at Ray Brook, I asked what the intentions of DEC were with respect to the A2A, or Algonquin to Adirondack "land bridge," which the environmental groups in New York and Quebec want to depopulate to allow for migration of deadly predators from the Algonquin Provincial Park to the Adirondacks. Thomas Wahl, the spokesman for DEC, replied that he had never heard of A2A.

Yet, I was reminded a day later that in the January - February - March Adirondack Conservation Council Newsletter, it was reported that the DEC Region 5 spokesman told the Adirondack Conservation Council:

"Adirondack to Algonquin (A2A-USA) Initiative - The Region 5 Wildlife Manager attended a meeting of the A2A Steering Committee, a consortium of organizations and individuals whose mission is to restore, enhance, and maintain a natural wildlife corridor or pathway important to migratory species that maintains ecological connectivity between the Adirondack Park and Algonquin Park..."

This is a major, official plan to depopulate the countryside northwest of the Adirondacks as far north as the St. Lawrence Seaway, and should be subject to full disclosure under the Open Space Conservation Plan, even if DEC claims its role is only as an observer. After all, DEC is carrying out the most important and expensive work to accomplish this depopulation, namely converting land from private to government ownership. The absence in the Open Space Plan of full disclosure of the A2A plan, or, as it is otherwise known, the Frontenac Link, or Axis, should alone be grounds to require the reissuance of the plan in draft form.

The constantly growing list of acquisitions that the State intends to make in the "Forever Wild" Forest Preserve raises a question that was heralded during the July 1995 blowdown. According to the DEC's study at the time, a fire hazard resulted that was at the most severe level that could be classified. Yet, Governor Pataki reneged on his pledge to salvage the timber blown down on State-owned lands. The following years brought damp summers, which alleviated the natural hazard. But the hazard of fire on blown down lands and wild forest that is temporarily intact remains. The extreme fires in the dry western states during recent summers should have given the New York State DEC administration pause. A sense of justice would dictate that adjacent communities be protected from fire hazard. There are two types of protection, prevention and fire suppression. Yet, in the Forest Preserve, fire prevention is limited to very few of the procedures that would be applied in a genuine effort to truly protect from forest fire.

The most important preventative for severe forest fires is, of course, reduction of fuel. This is avoided in the DEC management of the "Forever Wild" Forest Preserve. While this policy remains in place, an attitude of justice to local communities and neighboring landowners demands that no additional land be acquired by the State in the "Forever Wild" Forest Preserve. Until DEC's policy of fire prevention is significantly improved to include fuel reduction to non-potentially catastrophic levels, the Open Space Conservation Plan should delete any parcels in the "Forever Wild" Forest Preserve.

Good Government Denied

The draft Open Space Conservation Plan fails the test of good government by failing to state what is not on the list. The philosophy of DEC's implementation of the land acquisition law passed in conjunction with the failed Environmental Quality Bond Act has been one of relentless, unbounded land acquisition coupled with extreme vagueness that hides real intentions. the first abuse of the process established by law was to change the name from Land Acquisition Plan to "Open Space Conservation Plan" and to change the name of the Regional Advisory committees similarly. This effectively confuses the public at first instance. Such a policy is not minor. It is actually Orwellian, and is an important part of the designs of environmentalists to conceal the extent of what is actually going on.

Within this deception, the open-ended nature of the acquisition lists, as they expand year after year, carry out the Orwellian goals in their fullness. Good government would name the process frankly, as did the 1990 legislation, and would define limits to the deprivatization of land that is ultimately planned for New York.

Secrecy is the hallmark of the DEC land acquisition process. DEC makes secret deals with land trusts, which have a monopoly on the land acquisition process and have virtually no scrutiny by the office of the State Comptroller. they have a sweet tax deal that no ordinary property owner can have access to, even though it would be in the public interest-in the interest of good government-to keep as much land in private hands as possible and to preserve private property rights. DEC makes secret plans with environmental groups. It is unknowable to the general public where the Pew Charitable Trusts' new Northern Forest Coalition comes into the process, or where the joint Canadian/American A2A coalition comes in. Who can say what land in the northwest and central Adirondacks is slated to stay privately owned?

Furthermore, it is not in the interest of good government to slate still more land for and the land has not yet been bought up by the DEC to provide "Just Compensation" as originally contemplated. The Long Island Pine Barrens Core Area presents the most noteworthy example of this particular abuse, where small property owners are presently in litigation to achieve just compensation for 100 percent regulatory taking of their land, along with litigation of a number of injustices in the planning and implementation of the law establishing the Long Island Pine Barrens. Yet the Open Space Plan calls for acquiring still more land in the Pine Barrens area, while failing to address the unjust planning and acquisition process those landowners have been forced to litigate. This unlimited ambition to acquire land in the face of uncompensated owners is not good government.

The Wellbeing and Future of New York State

The wellbeing and future of New York, the Empire State, is greatly hampered b an attitude that land is best protected by being shifted from private to government ownership. Early in my life I learned that government ownership is the worst protection of land. With its immense taxing power and its lack of personal stewardship and continuity of management, government can suddenly obviate years of protection and respect for land. I remember my disappointment when the City of New York bulldozed beautiful Tallman's Island Park flat, where I spent countless summer evenings watching the sun set over Manhattan or enjoying its reflected glow from the cables and span of the Bronx-Whitestone Bridge. What took this community park's place? An enlarged sewage treatment plant, leaving every last trace of the exquisite setting invisible. Examples of this nature are countless.

Yet the Open Space Plan is ridden with presumptive statements that "protection" is synonymous with government ownership.

The Open Space Plan has another fundamental presumption built into it that needs thorough evaluation. This is the presumption that an ever-growing roster of preservation lands is good for the State's future. The questions are unanswered: How fully is this land used already? Will more land of this nature provide commensurate benefits? How much of an improvement in wildlife populations and wildlife health, specifically, will the additional lands provide? Are there enough lands already under State ownership, in forest, for instance, to provide these wildlife resources? When are there enough canoe routes? When are there enough inaccessible forest? What is the cost-benefit ratio? What is the tax impact? What is the local community economic and cultural impact? What proportion of each town and county should be devoted to State-owned land? What proportion of the State as a whole? Would these lands be better utilized by opening them to new towns, real estate tax-free timber exploitation or hunting clubs, new resort developments, and a host of other uses? What will it cost to provide handicapped access to all of the forest lands owned by the State? What additional burden will New York's taxpayers bear as the residual title of conservation easement land shifts to the State when the owners can no longer afford to hold unto the highly restricted properties?

Instead of buying more land in rural areas, should the State create full-service, refreshing and safe Northway service stops in the isolated parts of the Adirondacks. Or should the State build new scenic drives so that the visitor can enjoy the land in the way that the environmental agencies insist the visitor wants to see it-without any human-made structures. Or should the State construct more and better hiking trails, and so on? What is the best allocation of taxpayer resources to provide more public benefits of what "Open Space" the State owns?

Perhaps the State should instead improve urban parks and endow them so that the day that the new construction is completed government management won't allow them to begin to quickly deteriorate? Will the State restore neighborhood beaches on the now supposedly unpolluted rivers and bays of New York City that were closed after World War II on grounds of pollution. The City's waterfronts used to be an accessible asset to people of every economic level. Or perhaps the State would serve the public better if it were to create senior centers and village health centers in the North Country so that citizens wouldn't have to risk their lives on icy highways taking walks to get exercise during the five to six months of winter.

And, finally, at this time, would it be a tragic misallocation of taxpayer resources to spend scarce funds to buy up more private land when the cost of rebuilding New York after the terrorist attacks is so urgent? Which is more important to the future of New York? More government-owned forest, or that lower Manhattan, the center of the world's financial system, be fully restored.

Summary and Conclusion:

New York should put a hold on the draft Open Space Conservation Plan until the full disclosure of land acquisition statistics on a current basis are presented for each town, county, and region (such as the Adirondack Park) and until the future plans for the next one-hundred years are presented, broken down by reasonable increments. Because of the 'Forever Wild' clause in the State Constitution, land acquisitions in the Adirondacks are essentially permanent and their impacts are cumulative and irreversible for all practical purposes. The State should institute a policy of full disclosure as required under SEQRA. The State should revisit its far-reaching policy of acquiring conservation easements and open up this issue to public comment. The State should institute new systems of handling land acquisitions that take into account the spirit and details of the full range of recommendations in this statement.

The environmental justice considerations that the State should incorporate in the Open Space include not only the full SEQRA process and land inventory process, but also the elimination of fire hazards to adjacent landowners and communities from State forest preserves. The State should eliminate the use of third party intermediaries for land acquisition. The State should incorporate common sense fiscal considerations, principles of good government, and should reorient its policies to center on the wellbeing and future of New York State.

In sum, DEC and OPRHP should revisit the draft Open Space Conservation Plan and make the substantial reforms recommended in this statement before reissuing the draft plan for full public hearings and comments again.

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