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Featured Writers: Katherine R. Leisch

Dave Gibson
Katherine R. Leisch

A Trusting Public: How the Public Trust Doctrine Can Save the New York Forest Preserve

By Katherine R. Leisch
Pace University School of Law

Pace Law School student Kate Leisch wrote this paper for a 2010 Pace Law School seminar about New York’s Forever Wild clause, Article 14, Section 1 of the NYS Constitution. The seminar was led by law professors Nicholas A. Robinson and Philip Weinberg, and the papers were first presented at a Pace Law School Symposium in December 2010, and then published earlier this fall on the digital commons site of Pace Law School: http://digitalcommons.pace.edu/lawstudents. Ms. Leisch’s paper is reproduced here with permission of Professor Robinson.

Kate Leisch’s paper delves into the history and basis of the public trust doctrine as a part of New York State’s common law inherited from England and, by definition, the public trust represents a block on the power of government. For life support systems included within the public trust - atmosphere, air, water, public interest in lands and wildlife, for instance – she explains why government is obliged to serve as a trustee of the people, guaranteeing its perpetuation and improvements, not as an appropriator or exploiter.  Her paper is particularly important to Adirondack Wild: Friends of the Forest Preserve because it shows that in law and practice the Forest Preserve is part of the public trust. She makes a compelling case that any weakening of Forest Preserve’s protections would violate common law as well as the NYS Constitution. She recommends that statutory inconsistencies with Forever Wild which violate both State Constitution and public trust – for example, the three state statutes of the first half of the 20th century which authorize the state to acquire land within the defined Forest Preserve counties for purposes other than wild forest lands – should be formally incorporated within the NYS Constitution as amendments (or repealed as unconstitutional), and that no further “backsliding” is allowed, meaning that an anti-degradation clause gets written into Article 14 by amendment. Adirondack Wild is interested in pursuing such strengthening of Article 14.   


A Trusting Public: How the Public Trust Doctrine Can Save the New York Forest Preserve

By: Katherine R. Leisch

"Wilderness is not a luxury but a necessity of the human spirit"
– Edward Abbey

New York – a place the eyes of the world are always upon, it seems. While people know many of the state’s accomplishments, it is likely that not as many think of it as a leading example in environmental law and conservation. As early as 1894, however, New York raised the environmental bar globally by enacting the first “wilderness” law.1 At the 1894 Constitutional Convention New Yorkers took a firm conservationist stance by creating what is now Article XIV2 of the New York State Constitution, which stated: 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.3

1 Nicholas A. Robinson, “Forever Wild”: New York’s Constitutional Mandates to Enhance the Forest Preserve, 7 Pace Law Faculty Publications (2007), available at http://digitalcommons.pace.edu/lawfaculty/284.
2 It was originally Article VII § 7, but the quoted text has remained the same.
3 N.Y. CONST. art. XIV § 1.

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Posted 11/28/12

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2012

11/29/12 Katherine R. Leisch - A Trusting Public: How the Public Trust Doctrine Can Save the New York Forest Preserve read more >
08/13/12 Hank Kinosian - The Economic Value of Open Space in the Adirondack Park read more >
06/19/12 Dan Plumley & David Gibson - Embracing Forever Wild, and Advancing the Values of a Wild Adirondack Park read more >
05/21/12 Ken Rimany - The Genesis of ‘Best in Show’ - 1st Annual Adirondack Paddlers Photo Contest
read more >
04/25/12 By Peter O’Shea - Top Predators read more >
02/20/12 Dan Plumley, Partner, Adirondack Wild - Timber Wolves in the Adirondacks: A Trip to the Adirondack Wildlife Refuge and Rehabilitation Center read more >
01/24/12 David Gibson, Partner, Adirondack Wild - Ten Votes to Give Away the Park read more >
01/08/12 Peter Brinkley, Senior Partner/Chair: Adirondack Wild - The Adirondack Brand read more >
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Photos: Top left, Early morning mist at Beaver Mt. Photo © Ken Rimany

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Peter Brinkley, Honorary Chair
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