Awosting Falls at Minnewaska State Park (photo by Julie O’Connor)
A New York City-based reporter is suing to stop construction of additional carriage roads and a new visitor’s center at Minnewaska State Park, saying that the land should instead be part of the State Forest Preserve where preservation is the priority over recreation. It’s instead part of the Palisades Interstate Parks Commission (PIPC), created by an interstate company one attorney for the state says doesn’t need to comply with the New York constitution.
JB Nicholas, a frequent visitor to the park, brought the suit after seeing the impacts of construction in Minnewaska on what he says was untouched wilderness. He maintains that the state constitution is clear in that lands purchased in a number of upstate counties — including Ulster — must be classified as Forest Preserve, held in the name of the people of the state of New York, and thus be under the auspices of the Department of Environmental Conservation, and that this has been the case for well over 100 years. Representatives from the attorney general’s office question why Nicholas didn’t raise his concerns when the lands were first acquired, or several management plans were filed; they plan on asking for dismissal due to lack of timely filing, among other arguments. Nicholas holds the position that his right to sue is spelled out explicitly in the state constitution, without any time limits attached.
Nicholas first sought an emergency injunction to halt the construction. The motion was heard by Ulster County Supreme Court Justice Julian Schreibman on Friday, April 26 at the Ulster County Courthouse in Kingston. Representing himself, Nicholas argued that lands acquired in Forest Preserve counties must be part of the “forever wild” preserve. This would, in turn, impact future development in the park because the priorities laid out for conservation areas call for preservation first. He referenced legal decisions supporting that position.
Whether he is correct depends on some legal hair-splitting: does acquisition through an interstate compact of land in New York mean that it’s state-owned land? The relationship between the compact and the state is complex and a bit murky.
Schreibman questioned Nicholas in a way that suggested he’d prefer to make as narrow a ruling as possible if he decides in the plaintiff’s favor. Would he have to find the PIPC arrangement unconstitutional? Nicholas believes he must. Is a full stop of construction the plaintiff’s goal? It is. Doesn’t the plaintiff think someone should have raised this issue before in the past 50 years? State officials have been on notice for 125 years that all land shall be considered Forest Preserve, he said; that interstate agency “should not be able to own Forest Preserve lands.” At one point the judge tried to rein in some of the theories presented, noting that he didn’t need to find a secret conspiracy in order to agree that the land was improperly classified.
Assistant Attorney General Brian Lusignan offered a simple defense: the land was never deeded to the people of the State of New York, and that’s what’s needed to trigger the constitutional requirement. As PIPC is an interstate compact, it’s approved in Congress, giving its existence the weight of federal law. That weight trumps any state constitution, the attorney said; Schreibman was openly skeptical. The case is too late by years regardless of what law is applied, Lusignan said. Moreover, while he maintains Nicholas is too late in filing, he’s also too early: part of the suit is based on a parcel where construction is not yet contemplated officially, making it “too early for injury.”
Schreibman wondered how a park some hundred miles from the state line ended up in PIPC control. As it happens, all parks in the eighth state parks region are run through the interstate agency; its director, James Hall who holds the state deputy director title for that region. It is, in essence, an administrative convenience. To Schreibman, “that seems erroneous.”
Lusignan thinks there would be harm in stopping construction, which is nearly done on the carriage roads and “well underway” for the visitor’s center, where improvements include replacing eco-friendly composting toilets with a system to dispose of waste in a “more modern way.” He even claimed that the contractor would be liable for penalties should an injunction cause a contractual deadline to be missed.
“You don’t get to charge them” under those circumstances, Schreibman explained in a gentle tone.
The judge also pressed whether there is a state interest or not; doesn’t ownership under an interstate agency suggest otherwise? He accepted that one individual can wear more than one hat, but the convoluted relationship seems central to the case.
Schreibman promised a ruling on the injunction “soon,” and set a date of May 20 for the submission of an expected motion to dismiss the underlying case, together with various reply papers. While both parties seem to believe the case of Minnewaska may be unique, the impacts of a decision could be wider if worded broadly enough.