Reporter Sues State to Stop Minnewaska Construction

New York City-based reporter and nature appreciator, JB Nicholas, prefers the wildest parts of Minnewaska—the areas deeply tucked in the woods, away from the roads and the sound of cars. 

But currently, the public employees who manage Minnewaska are building more carriage roads through the most pristine parts of Minnewaska’s wilderness, and a larger visitor center for tourists. 

Nicholas couldn’t take this injustice sitting down. “Because a road, any kind of road, is not compatible with wilderness, I say ‘No,’ Minnewaska’s wilderness must be preserved,” Nicholas wrote in a Forever Wild Project article. 

Now, Nicholas is suing the state of New York to stop construction of Minnewaska, making the claim that Minnewaska should be a part of the State Forest Preserve—where land protection and preservation is the top priority—instead of being a part of the Palisades Interstate Parks Commission (PIPC)—an interstate corporation that doesn’t need to comply with the New York environmental constitution. 

To file a citizen suit, which is authorized by Article XIV Section V of the state constitution, one must obtain permission from the Appellate Division. After Nicholas obtained permission on April 5, he filed a preliminary injunction on April 11. The motion was heard by Ulster County Supreme Court Justice Julian Schreibman on April 26. 

In 1894, the people of New York found an answer to their government’s inability to protect New York’s environment by ratifying an amendment to its state constitution called the “forever wild clause.” It mandated that state-owned forests that have been exploited be kept “forever wild.” In effect, the amendment stripped both the Legislature and Executive Branch of the power to alter the Forest Preserve, and put the power back in the hands of the people.

But over time, a deal was eventually made to make the lands a part of the PIPC as opposed to the Forest Preserve. 

“There is a secret committee, I’m not kidding you, it’s called the ‘Council of State Land Acquisition,’” Nicholas said. “It’s in the environmental conservation law and its records are exempt from FOIL, its meetings are exempt from the open meeting law. The Department of Environmental Conservation (DEC), the Office of Parks, Recreation and Historical Preservation (OPRHP), the governor, the senate majority and the assembly speaker and their designees all get together and they decide which land is priority acquisitions. And it’s all done in secret.” 

In one of these secret meetings during the 1970s, the then-senator asked about the uses for Minnewaska. The DEC commissioner reportedly said that it’s fragile, and that the least we do to it the better. 

“So right from the beginning, there was concern about the constitutionality of exploiting Minnewaska for recreational purposes, but those concerns were basically brushed aside,” Nicholas said. 

According to a 1997 confidential memo obtained by Nicholas, there was a discussion between the head of the Adirondack Mountain Club, the head of the Open Space Institute (OSI), a lawyer from DEC, a lawyer from OPRHP and the OPRHP commissioner about whether Sam’s Point should be made PIPC land or DEC land. They made the land part of PIPC because, initially, the DEC didn’t have any money to acquire the land. That exigency was allowed to persist in violation of the constitution. 

“This memo shows that this was talked about, this didn’t just happen like magic. This was an intentional decision,” Nicholas said. 

Nicholas’ lawsuit alleges that New York has illegally designated Minnewaska as a state park, when it should have been designated as part of the statewide Forest Preserve. The suit seeks an order requiring state officials to include Minnewaska in the Forest Preserve, instead of treating it as a state park. 

“The big picture is a guy like Trump could come in and if he had support from the legislature, he could sell Minnewaska tomorrow if the legislature approves it,” Nicholas said. “Unless these things are constitutionally protected, these issues just have a way of coming back around.” 

“When it comes to Minnewaska, here is an opportunity to put it out of reach of folks like Trump and other anti-conservation forces, and have it protected by the people. That’s the bottom line of what this lawsuit is about,” he added. 

New York’s Attorney General, Letitia James, asserted that the 23,000-acre Minnewaska State Park cannot be made Forest Preserve because New Jersey owns half of it through PIPC. 

“Land owned by PIPC cannot be ‘sold, exchanged or conveyed except with the consent of both states by specific enactments,’” James claimed in her brief.  

While Article XIV gives constitutional protection to the New York State Forest Preserve, James responded that, even if Nicholas’ lawsuit is correct, the Court does not have the power to do so unless the New Jersey legislature passes a law authorizing it. James pointed to the 1937 treaty that established PIPC as a corporate instrument of New York and New Jersey, specifically authorized to manage the Palisades Interstate Park along the Hudson River.

According to Hudson Valley One, Assistant Attorney General Brian Lusignan said that the land was never deeded to the people of the State of New York, which is 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,” Lusignan said to Hudson Valley One

Nicholas fired back, saying that no treaty could authorize what the New York State constitution specifically forbids. The constitution also prohibits PIPC from owning parcels of land larger than 100 acres in Ulster County. 

“The state really hasn’t put forth a whole bunch of good reasons [for disagreeing with the suit]. The state has just said we wanted to be ‘park land,’ we want to be a tourist destination for the world [which] could drive the local economy,” Nicholas said. “I think the protection of the human race should take precedence over economic interests.” 

Because of the unchartered waters this lawsuit navigates, there is not an entirely clear path of action to win the law suit. What is clear, however, is that Nicholas has to prove that the deeds should be held by the people of New York and not by PIPC. 

“That depends on a fairly complicated issue of constitutional and treaty interpretation. I’m sure that’s what is taking the judge so long to issue a decision on the preliminary injunction,” Nicholas said. 

Schreibman promised a ruling on the injunction “soon,” and will submit an expected motion to dismiss the underlying case on May 20.