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Volume 10 - Opinions of Counsel SBRPS No. 18

Opinions of Counsel index

State owned land exemption (Forest Preserve) (timber reservation rights) - Environmental Conservation Law, § 9-0101; Real Property Tax Law, §§ 404, 532:

State-owned lands located within the Forest Preserve, which are subject to timber reservation rights, are not wild or forest lands subject to taxation.

We have received an inquiry requesting that we review our longstanding position that a State-owned parcel within the Forest Preserve, which is subject to timber reservation rights, is not taxable under Real Property Tax Law (RPTL), section 532(a), for the duration of that timber reservation.

All real property owned by the State of New York is exempt from taxation unless otherwise provided in the Real Property Tax Law (RPTL, § 404(1)). RPTL, section 532(a), provides that “All wild or forest lands owned by the state within the forest preserve” shall be subject to taxation for all purposes. There are three prerequisites to taxation of such land: (1) the land must be owned by the State of New York; (2) the land must lie within the Forest Preserve; and (3) the land must be wild or forest land. In this instance, there is no question but that the parcel of land is owned by the State of New York and lies within the Forest Preserve (it is located in St. Lawrence County) as described in Environmental Conservation Law (ECL), section 9-0101(6). However, because the parcel is subject to a timber reservation agreement, we do not consider it to be wild or forest land.

The requestor asserts that, because the RPTL fails to define the terms “wild lands” and “forest lands,” we should rely upon section 9-0101(5) of the ECL which defines “forest land” as including, not only lands which may be covered with tree growth, but also lands which are best adapted to forests. The requestor further contends that, even if the parcel is clear cut during the timber reservation, it nonetheless continues to be “forest lands” under the ECL definition, because it continues to be “lands which are best adapted to forests.” In our view, such lands could only be considered wild or forest under RPTL, section 532(a), and therefore taxable, upon the termination of the timber reservation.

In arguing that we should rely on the ECL definition of “forest land” in determining the taxability of the parcel under the RPTL, the requestor refers to the rule of statutory construction described in McKinney’s Statutes, section 221(b), for the proposition that statutes which relate to the same matter — in this case, the Forest Preserve as referenced in both RPTL, section 532, and ECL, section 9-0101 — must be read in pari materia. That is, being related to the same subject or matter, the statutes are to be construed together as though forming part of the same statute. We acknowledge this general principle, but believe that consideration must also be given to section 1 of Article 14 of the New York Constitution which states, in pertinent part:

The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be kept as wild forest land. 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 (emphasis added).

Applying the in pari materia rule of statutory construction here, we therefore read section 1 of Article 14 of the New York Constitution, which deals directly with the Forest Preserve, in conjunction with section 532(a) of the RPTL, and conclude that, if timber can be sold, removed or destroyed pursuant to a timber reservation, this is inconsistent with the constitutional restrictions placed on forest preserve land and, therefore, that land cannot be said to be kept as wild or forest land.

Accordingly, because the parcel does not meet the third requirement under RPTL, section 532(a), it is not taxable pursuant to that section but, rather, exempt pursuant to the provisions of RPTL, section 404. We also note ECL, section 9-0303, which provides, in part:

In order to protect the state lands described in this article the following provisions shall apply:
1. Trees or timber. Except as provided in subdivision 2 of section 9-0107 and in sections 9-0501 through 9-0507 of this article no person shall cut, remove, injure or destroy any trees or timber or other property thereon or enter upon such lands with the intent to do so (emphasis added).

Again, reading this statute as being in pari materia with RPTL, section 532(a), leads us to conclude that the applicability of a timber reservation agreement renders the subject parcel exempt.

In reaching this conclusion we believe our continued reliance on 1951, Op.Atty.Gen. 196 is well-placed. In considering the conveyance of a fishing right easement, and the land over which the easement was to be granted, the Attorney General cautioned that the authority granted by then-section 152 of the Conservation Law had to be considered. This section authorized the removal of trees and other products of the land and the sale of the trees, timber and other products so as to optimize fish production. The Attorney General found the property to be tax exempt, because “[s]uch authority so given is inconsistent with a holding that such lands shall be forever kept as wild forest lands constituting the Forest Preserve of the State (Art. XIV, § 1 of the Constitution).” That is, the lands acquired for fishing rights were not taxable “as wild and forest lands in the Forest Preserve.”

In our opinion, by analogy, a timber reservation right which authorizes the prior owner to cut or remove any timber is inconsistent with a holding that such land shall be forever kept as wild or forest land. Such land, therefore, cannot be taxable under RPTL, section 532.

That same Opinion of the Attorney General goes on to state “The wild and forest nature of the land depends on the facts.” Although the timber reservation here in question is, as described in the request, “a temporary reservation of rights by the prior owner to which the State agreed in order to facilitate State acquisition of the parcel,” in fact, the reservation gives the prior owner the important and valuable right to cut timber from this parcel in direct contravention of the constitutional restriction on forest preserve parcels. We have found that, in cases of timber reservations, the prior owners do, in fact, cut and remove timber. While these reservations may serve to “facilitate” State acquisition of such land, they also confer a right to the prior owners, a right which is often exercised. Therefore, the lands subject thereto are not taxable.

For the reasons discussed above, we conclude that our longstanding position of only approving taxes pursuant to section 532(a) for lands kept forever wild remains valid.

June 21, 1995