Can the New York Department of Environmental Conservation issue 'temporary revocable permits' to a utility to install electrical cables on the beds of two Adirondack forest preserve lakes so that nearby private residences can have electric service?

Subject

Whether the Department of Environmental Conservation may issue four "temporary revocable permits" (TRPs) to Niagara Mohawk Power Corporation for installation of submarine electrical cables and onshore equipment on the beds and shorelines of Raquette Lake and Big Moose Lake (both within the Adirondack forest preserve) to serve thirteen private seasonal residences.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/96-F2_pw.pdf

Plain-English summary

DEC's counsel asked whether the Department could grant Niagara Mohawk four "temporary revocable permits" to install underwater electrical cables across the beds of two Adirondack lakes, with associated padmount transformers, switchgear, and (potentially) wooden transformer houses on the shorelines. The cables would deliver power to thirteen private seasonal homes (five on Raquette Lake, eight on Big Moose Lake). The Big Moose Lake homes could obtain power overhead through private property outside the forest preserve.

The AG concluded that DEC could not issue the permits. The reasoning ran through three steps.

First, Article XIV, § 1 of the State Constitution declares that the lands of the State constituting the forest preserve "shall not be leased, sold or exchanged, or be taken by any corporation, public or private." This is the "forever wild" clause, ratified at the 1894 Constitutional Convention to close earlier loopholes that had allowed legislative permission to log the preserve. The protection has been strictly construed for over a century (Association for the Protection of the Adirondacks v MacDonald; Kenwell v Lee). Although MacDonald involved cutting trees for a bobsled run, its broader holding governs any constitutionally inconsistent use of forest preserve land: a constitutional amendment is required.

Second, the lakebeds are part of the forest preserve. The constitutional prohibition is not limited to wooded areas; it protects "land that is part of the forest preserve," and the 1894 debates make clear that lake watersheds are included.

Third, a "temporary revocable permit" can be a permanent interest in disguise. The label parties attach to a property interest does not control; courts and prior AG opinions have repeatedly looked through "license," "TRP," and similar labels to ask what kind of interest is actually being conveyed. In a 1975 opinion the AG concluded that a "temporary revocable license" for an electric transmission line through reforestation lands was in substance a permanent interest because the line could not realistically be removed at will. The same logic applied here: Niagara Mohawk was investing in concrete pads, transformers, and switchgear, and DEC told the AG it did not foresee revoking the permits. The cable also did not serve any public use within the MacDonald public-purpose exception. The cables would supply heat and light to thirteen private vacation homes, not power a campground or public visitor station.

The AG noted alternatives: the eight Big Moose Lake homes could connect through overhead lines on private property outside the preserve, and the five Raquette Lake homes could use generators. None of those required a constitutional taking of forest preserve land. The AG also acknowledged two prior 1945 and 1949 opinions that had approved similar permits but distinguished the 1945 opinion as serving a public campground (within MacDonald's public-use exception) and declared the 1949 opinion's analysis "constitutionally defective" for not considering Article XIV.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the "forever wild" clause?
N.Y. Const. art. XIV, § 1 says: "The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, 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." This provision was added to the New York Constitution in 1894 and has been carried forward in successive revisions. It is one of the strongest constitutional protections of public land anywhere in the country.

What does it actually prohibit?
Leasing, selling, exchanging, or taking the land; cutting, selling, removing, or destroying the timber. New York courts have read all four verbs broadly. The MacDonald case extended the protection to a bobsled run that would have required cutting trees. The strictness reflects the conscious choice of the 1894 drafters to close earlier loopholes that the Legislature had used to authorize logging.

Does Article XIV cover lake beds?
Yes, where the lakes are part of the forest preserve. The "land" protected by § 1 is not just wooded ground; it is all the land within the preserve, including watershed-feeding lakes and streams. The constitutional debates of 1894 explicitly invoked the watershed function of the preserve as one of the reasons for the protection.

Why is a "temporary revocable permit" treated as a permanent interest?
Because the substance of the transaction matters more than its label. The AG has consistently looked at the physical characteristics of the use (here, concrete pads, transformers, fixed routing of submarine cables) and the practical likelihood that DEC would ever actually revoke (DEC told the AG it did not foresee revocation). When the realistic picture is of an indefinite, integrated installation rather than a true short-term use, the constitution does not permit the labeling around it.

What is the MacDonald public-use exception?
In Association for the Protection of the Adirondacks v MacDonald (1930), the Court of Appeals in dicta acknowledged that the forest preserve is "preserved for the public; its benefits are for the people of the State as a whole." Reasonable public uses (camping, recreation, public-purpose installations like trails or campground utilities) can sometimes be accommodated within the forever wild framework. A power line to thirteen private vacation homes is not within that exception; it serves private rather than public interests.

What if the Legislature wants to permit this kind of use?
A constitutional amendment is required. Article XIV has been amended a few times over the decades, by referendum, to allow specific projects like the Whiteface ski trail, the Northway, certain landfills, and an airport. Each amendment names the specific project and is strictly construed. The Legislature cannot authorize a non-amendment workaround.

Background and statutory framework

The Adirondack forest preserve and the Catskill forest preserve are creatures of New York statute (now consolidated in Environmental Conservation Law) and constitutional law (Article XIV). The forest preserve protections began with the 1885 Adirondack Forest Preserve Act, but the legislative protections were repeatedly eroded by amendments allowing logging until the 1894 Constitutional Convention placed the forever wild rule in the Constitution itself.

Environmental Conservation Law § 9-0105(15) authorizes DEC to issue permits for the temporary use of the forest preserve. The 1996 AG opinion's holding is that this statutory authority is constrained by Article XIV: a permit cannot, in substance, convey a permanent interest, and cannot serve a non-public use that would otherwise be prohibited.

Article XIV § 3 extends similar (though not identical) protections to State reforestation areas. The 1975 AG opinion on the electric transmission line dealt with reforestation land. The constitutional analysis transfers, with appropriate adjustments, to the forest preserve context.

The MacDonald opinion's "public use" dicta has been refined by later cases and AG opinions to require that the use actually benefit the people of the State, not just a narrow group. Public campgrounds and visitor centers fit; private residences do not. The AG's distinction of the 1945 and 1949 opinions on private power lines reflects this evolution: the 1945 opinion, where service incidentally extended to a public campsite, fit within the public-use exception; the 1949 opinion did not.

Citations

• N.Y. Const. art. XIV, § 1 (forever wild)
• N.Y. Const. art. XIV, § 3 (State reforestation areas)
• Environmental Conservation Law § 9-0105(15) (DEC temporary use permits)
• Public Service Law § 126(1)(d) (major utility transmission system long-range plan)
• Association for the Protection of the Adirondacks v MacDonald, 253 NY 234, 239-240 (1930)
• Kenwell v Lee, 361 NY 113, 117 (1933)
• G.L. & P.J.R.R. Co. v N.Y. & G.L.R.R. Co., 134 NY 435, 439 (1892)
• Lordi v County of Nassau, 20 AD2d 658, 659 (2d Dept 1964)
• Saratoga State Waters Corp. v Pratt, 227 NY 429 (1920)
• People ex rel. Turner v Kelsey, 180 NY 24, 26 (1904)
• People v Douglass, 217 App Div 328, 329-330 (3d Dept 1926)

Original opinion text

NY CONST ART XIV §§ 1, 3; ENVIRONMENTAL CONSERVATION LAW § 9-0105(15).
The Department of Environmental Conservation may not issue four temporary revocable permits to
authorize installation of electrical cable and other equipment on the beds and shorelines of Raquette
Lake and Big Moose Lake.

February 22, 1996

Hon. Michael D. Zagata
Commissioner, Department of Environmental Conservation
50 Wolf Road, Rm. 608
Albany, NY 12233-1500

Formal Opinion
No. 96-F2

Dear Commissioner Zagata:
Your counsel has asked whether the Department may issue four temporary revocable permits ("TRPs") to
the Niagara Mohawk Power Corporation to authorize the installation of electrical cable on the beds of
Raquette Lake and Big Moose Lake, which lie in the forest preserve. Five private residences would
receive power through the issuance of three TRPs applicable to Raquette Lake. Eight private residences
would receive power through issuance of a TRP applicable to Big Moose Lake. Significantly, these eight
residences can obtain power through lines on private land outside the forest preserve.
The Department is authorized to issue permits for the temporary use of the forest preserve. Environmental
Conservation Law § 9-0105(15). You state that the sole purpose of the proposed cables is to provide
electrical service to these thirteen private seasonal residences, represented in the four applications.
You also note that in addition to the installation of the submarine cables, the diagrams submitted with the
applications indicate that switchgear, padmount transformers, and/or wooden transformer houses would
be constructed on the shore near the private residences at points where the submarine cables both enter
and exit the water. After construction, the submarine cables and associated onshore structures will
remain on the beds of the lakes and the onshore areas for the duration of the permit.
The inquiry arises because Article XIV, § 1 of the State Constitution in part provides that

The lands of the state, now owned or hereafter acquired, constituting the forest preserve as
now fixed by law, 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.

This unique and stringent constitutional safeguard has protected the forest preserve for 100 years.
The purpose of the constitutional provision, as indicated by the debates in the Convention of 1894, was
to prevent the cutting, destruction or sale of timber as had previously been permitted by the Legislature
to the detriment of the forest preserve. Association for the Protection of the Adirondacks v MacDonald,
253 NY 234, 239-240 (1930). The preservation of the forest would in turn preserve the watershed
feeding the mountain streams and lakes which eventually feed the rivers. Revised Record of the
Constitutional Convention of the State of New York, 1894, Vol IV, pp 130-134. To accomplish this
purpose, it was thought necessary to close the gaps in the law and to prohibit the cutting or removal of
trees to a substantial extent. MacDonald, supra, pp 239-240. The intention was to establish a strict
provision that would prohibit the abuses that had occurred and to preserve the land as a recreational
resource for the people of the State. Constitutional Convention, supra, pp 155-156; Kenwell v Lee, 361
NY 113, 117 (1933).
While MacDonald dealt with the cutting of trees for a bobsled run, it provides guidance in construing the
"forever wild" provision. In MacDonald, the Court of Appeals, in dicta, emphasized that the forest
preserve is for use by the public.

The Forest Preserve is preserved for the public; its benefits are for the people of the State as
a whole. Whatever the advantages may be of having wild forest lands preserved in their
natural state, the advantages are for every one within the State and for the use of the people
of the State. Unless prohibited by the constitutional provision, this use and preservation are
subject to the reasonable regulations of the Legislature.
. . .
What regulations may reasonably be made by the Commission for the use of the park by
campers and those who seek recreation and health in the quiet and solitude of the north
woods is not before us in this case. The Forest Preserve and the Adirondack Park within it
are for the reasonable use and benefit of the public, as heretofore stated. A very considerable
use may be made by campers and others without in any way interfering with this purpose of
preserving them as wild forest lands.

MacDonald, supra, pp 238-241.
Any development in the forest preserve which is not consistent with Article XIV, § 1 must be specifically
authorized by constitutional amendment. In the past, amendments have been adopted by referenda to
allow for the construction and maintenance of particular highways, ski trails, land fills and an airport.
NY Const, Art XIV, § 1. These amendments to the Constitution allowing for development in the forest
preserve have been strictly construed. 1933 Op Atty Gen 395; 1954 Op Atty Gen 157; 1990 Op Atty
Gen No. 90-F4.
In responding to the question you have raised, we must take into consideration the strict construction of
the "forever wild" provision as indicated by the debates before the Constitutional Convention, the
amendments to the Constitution to allow inconsistent uses and their strict construction, and by the Court
of Appeals in MacDonald.
Raquette Lake and Big Moose Lake are indisputably part of the forest preserve. While obviously the
laying of cable on the lake bed poses no threat to wooded areas, the Constitution prohibits the sale, lease
or exchange or taking by any corporation of any land that is part of the forest preserve. The prohibition
applies not only to wooded areas but to all forest preserve land. Further, as indicated earlier, the debates
demonstrate an intent to preserve the watershed feeding the streams and lakes which in turn serve as a
source of water for the rivers. In that the two lakes are protected by this constitutional provision, we
must consider whether the grant of these TRPs to place cable on the beds of the two lakes within the
forest preserve constitutes the grant of an interest in forest preserve land that is prohibited.
It is a general principle of real property law that the name an interest is given in the document creating it
is not determinative of the actual nature of that interest. G.L. & P.J.R.R. Co. v N.Y. & G.L.R.R. Co., 134
NY 435, 439 (1892); Lordi v County of Nassau, 20 AD2d 658, 659 (2d Dept 1964); see, Saratoga State
Waters Corp. v Pratt, 227 NY 429 (1920). This principle is evident in prior opinions concluding that
TRPs for use of reforestation or forest preserve land were in fact an impermissible grant of a permanent
interest in these lands. See, e.g., 1975 Op Atty Gen 46; 1954 Op Atty Gen 170; 1925 Op Atty Gen 170.
In a prior opinion, for example, we concluded that the Department did not have authority to grant a
"temporary revocable license" for the construction of an electrical transmission line, steel support
towers and access route through reforestation areas which, under Article XIV, § 3 may not be leased,
sold or exchanged, or be taken by any corporation, public or private. 1975 Op Atty Gen 46. The opinion
reasons that the nature of the interest created by the proposed license depended on the intent of the
parties and the nature and physical characteristics of the usage.

[T]he nature of the interest which would be created by the proposed "license" is not fixed by
the label placed thereon but depends upon the intent of the parties and the nature and
physical characteristics of the usage. . . .
. . . Such clearing operations and construction . . . negate any possibility that the Department
of Environmental Conservation could, as is the basic characteristic of a "temporary
revocable license", resume full possession and control at will.
Furthermore, since Public Service Law, § 126(1)(d), specifically provides that the Public
Service Commission may not approve construction of a major utility transmission system
unless " * * such facility conforms to a long-range plan for expansion of the electric power
grid of the electric systems serving this state * * " (emphasis added), and the physical
characteristics and immense construction cost of such a line clearly establish that a
permanent usage is intended, it is beyond cavil that the proposed transmission line is to be
constructed, operated and maintained on a permanent, rather than a temporary, basis.

The temporary license in fact constituted the grant of a permanent interest in the land in violation of the
Constitution. Also, the proposed use was found to be inconsistent with reforestation purposes. 1975 Op
Atty Gen 46 at 48-49, revd on other grounds, 1975 Op Atty Gen 49. Therefore, characterization of a
TRP as temporary and revocable is not controlling in the presence of facts which indicate that a more
permanent interest would be granted by your Department.
As in these prior opinions, the facts in your request indicate that the Department would be granting a
more permanent interest in forest preserve land. Your Department has informed us that it does not
foresee that the four TRPs for electrical cable would be revoked at any future date. It is clear that the
installation of the cable to provide electricity to these thirteen private residences would necessitate an
investment by Niagara Mohawk. The installation would necessitate the construction of switchgear,
padmount transformers, and/or wooden transformer houses at points where the submarine cables both
enter and exit the water. The transformers, which are about two feet high, would be placed on concrete
pads that measure three feet by three feet. These considerations and the fact that the cable would be a
source of amenities for the residences, such as heat and light, militates against treating the permits as
temporary. Thus, it appears at the outset that the parties to the TRPs envision transfer of an interest that
is neither temporary nor readily revocable.
Applying the reasoning in MacDonald, supra, the cable would not serve a public use permitted in the
forest preserve. It would not benefit the public at large by facilitating the enjoyment of the preserve. For
example, the cable would not provide electricity to a public campground or visitor station. It is proposed
strictly to provide electricity to thirteen private residences. While we recognize that the cable would
have a minimal aesthetic impact (it is below the water line and the Department has indicated that it
would not adversely affect marine life or navigation) these factors are not constitutionally germane.
We are constrained by the absolute language of the constitutional provision that land in the forest
preserve shall not be leased, sold or exchanged, or be taken by any public or private corporation (People
ex rel. Turner v Kelsey, 180 NY 24, 26 [1904]; People v Douglass, 217 App Div 328, 329-330 [3d Dept
1926]) and by the strict interpretation given to the "forever wild" provision by the courts. Kenwell v Lee,
supra. Applying the above reasoning to the facts presented, we conclude that the grant of the permits
requested would constitute the granting of an interest in land prohibited by Article XIV, § 1 of the New
York State Constitution. The grant would be neither temporary nor revocable.

In two prior opinions, we concluded that the Department's predecessor could grant permits for the
construction of power and telephone lines across forest preserve lands if it made a determination that the
wild forest character of the lands would not be impaired by the proposed construction. 1945 Op Atty Gen
168; 1949 Op Atty Gen 132. Neither opinion considered the question whether the proposed permit
would grant an interest in the forest preserve lands that was prohibited by the Constitution. In the 1945
opinion, however, the facts indicate that power would be provided not only to the owner of a cottage but,
in all likelihood, to a public campsite operated by the Department bringing the line within the public
use exception recognized by MacDonald, supra. The analysis in the 1949 opinion, however, is
constitutionally defective in that no consideration was given to whether an interest in property was
granted in violation of Article XIV.

Alternatives may exist, however, for the obtaining of electricity. The eight residences on Big Moose Lake,
according to your staff, can receive electricity through overhead lines on private property outside the
forest preserve. The other five residences on Raquette Lake presumably could utilize generators to obtain
electricity.
We conclude that the Department of Environmental Conservation may not issue four temporary
revocable permits to authorize installation of electrical cable and other equipment on the beds and
shorelines of Raquette Lake and Big Moose Lake.
Very truly yours,

DENNIS C. VACCO
Attorney General