NYCL AGO 96-F2.

• Case Date: February 22, 1996
• Court: New York

New York Attorney General Opinions 1996. AGO 96-F2. February 22, 1996Formal Opinion No. 96-F2Hon. Michael D. Zagata Commissioner, Department of Environmental Conservation 50 Wolf Road, Rm. 608 Albany, NY 12233-1500NY 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.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...