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A June 14 decision by the federal Surface Transportation Board’s (STB) Director of Proceedings awarding common carrier status to the Saratoga and North Creek Railway (SNCR), owned by Iowa Pacific Holdings, for freight operations on the 30-mile Tahawus industrial rail spur was appealed June 25 to the full Board by Charles C. Morrison, Project Coordinator for the Adirondack Committee, Atlantic Chapter of the Sierra Club and Samuel H. Sage, President and Senior Scientist of the Atlantic States Legal Foundation (ASLF).
Morrison and Sage asked the Board to rescind SNCR’s approval because its action in itself violated Article 14 of the New York State Constitution and authorized SNCR to violate it by operating a rail line over 13 miles of Forest Preserve land seized by the US Army for use during World War Two. Dave Gibson, who is not a party to the appeal, described the issues involved in use of the rail line on Monday in the Adirondack Almanack. The line had previously been eyed for a bicycle rail-trail.
Sage said that “This rail spur has been in violation of Article 14 of the New York State Constitution, the “forever wild” provision, since 1942 when the Secretary of the Army used eminent domain to seize a right-of-way easement 13 miles long on the Forest Preserve and 17 miles over private property with more than 30 owners to build the spur and lease it to National Lead to haul ilmenite, an ore containing titanium dioxide, from Tahawus. At that time, the State spent four years fighting this violation in federal court, appealing twice to the U.S. Supreme court.”
“Seventy years later, the State’s current position in support of SNCR rather than Article 14 has made chances of resolving this ongoing violation and illegal occupancy of the Forest Preserve worse than they have ever been. In the present situation the NYS Department of Environmental Conservation, legally the custodian of the Forest Preserve, with other State, Congressional and local officials chiming in, has become a part of the problem instead of part of the solution. By supporting SNCR’s Notice of Exemption before the STB in a March 19 letter, DEC has helped to ensure continuation of the Constitutional violation.” Sage added that: “Pitifully, DEC and other public officials have sold out the Forest Preserve and the State Constitution in exchange for the possibility that a handful of jobs crushing and loading waste rock might be created next to the High Peaks Wilderness Area.”
In further explanation Morrison said: “The STB has ruled that resolution of the issues concerning the Forest Preserve and Constitutional violation is beyond its jurisdiction and should be resolved in State court. Such a case might hinge on whether the spur has been legally abandoned under State law. In that regard, NYS DOT and NL Industries has admitted in several letters that the Tahawus spur –which includes the easements – has been abandoned under Section 18 of State Transportation Law since 1989. Under the State’s common law on easements, abandoned easements immediately terminate, are extinguished and full title reverts to the underlying property owners.” Morrison added that: “The STB decision, which inserts federal jurisdiction and preemptory federal law into this situation, makes quite slim the likelihood that resolution of these real property issues will take place in State court as the STB itself has recommended.”
In their appeal, Sage and Morrison asked the Surface Transportation Board to recognize that the Forest Preserve belongs to all of the people of New York State, not just the few State, Congressional and local officials that have lobbied STB to approve Saratoga and North Creek Railway’s request. They asserted that the STB’s award of common carrier status to SNCR for the Tahawus spur favors private interest over the public interest in the Forest Preserve and it would be in the public interest to rescind that award.
Morrison and Sage also stated that the Forest Preserve is a National Historic Landmark under the 1966 National Historic Preservation Act (NHPA) as amended and the STB acted without conducting a historic review that would have examined the impact of its action on this landmark. Section 106 of the NHPA provides that disagreements about the need for historic review are to be settled by the federal Advisory Council on Historic Preservation (ACHP). The arbitration process, which still could put a “hold” on the STB’s June 14 decision, started last week with an initial exchange of information between ACHP and STB. Morrison and Sage asked the Board to allow time to let the Section 106 process work.
The full text of the June 4 protest petition by the Sierra Club and ASLF, and the initial May 17 Notice of Exemption by SNCR can be viewed on the STB’s website. Under E-Library, click on “Filings” > then on “Search by Parameters” > insert Docket # “FD 35631” on the 2nd line of form> then click “Search”. Follow the same path under E-Library > “Decisions” for the June 14, 2012 STB decision. The Docket Number for SNCR’s earlier Exemption case, running from October 25, 2011 to May 14, 2012, is FD-35559. In that case the appeal by SNCR took six months using the same expeditious Exemption process, a process that STB has designed for noncontroversial projects. “Everybody knows by now that this is not a noncontroversial project,” Morrison said, “so why is STB using this process?”
The rail spur runs from the North Creek Railroad Station to the Open Space Institute’s 10,000 acre Tahawus Tract, which borders the High Peaks Wilderness. The rails cross three counties (Warren, Hamilton, and Essex) beginning between Route 28 and the Hudson River north of North Creek and running to a bridge just below the Hudson Gorge, then along the Boreas River (designated a NYS Scenic River), Vanderwalker Brook, and Stillwater Brook before rejoining the Hudson River near Route 28N in Newcomb and finally crossing the Opalescent River and into the mine area.
The railroad climbs 712 feet to 1,720 feet above sea level at a maximum grade of two percent on a three-mile stretch along the Boreas. There are seven road crossings – Route 28 north of North Creek and just north of North River, the Northwoods Club Road (dirt), Moose Pond Road, Route 28N just before Route 2 (Blue Ridge Road), Route 2 itself, and Tahawus Road, just before the Hudson River bridge.
Photo courtesy Phil Brown /Adirondack Explorer.
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Would the board rule differently than the director? I don’t really get this appeal?
Seems the removal of the mine tailings would be a positive to restore the environment, so Sierra Club should be supporting this rather than trying to get STB to reverse the ruling
Chris, what evidence do you have that they’ll be removing mine tailings? Sounds like a dubious claim. And what evidence is there that removing the tailings (if that’s what they are going to do) would have a positive impact on the environment?
Also, does your comment mean that you support the notion that the federal government should be able to seize state lands and then turn them over to a private corporation?
John: the expressed aim (in writing as well as through their spokesperson) of the company reopening the line is to remove the roughly 100 million tons of tailings, essentially carting away Overburden Mountain in the process. They could be lying, though I don’t see why they would. The tailings have industrial value.
My point would be that the question of land rights and the NYS Constitution supersedes the value of the tailings. This issue must be settled correctly.
As an environmental advocate I am in favor of removing the tailings by railroad versus by truck, which is what is happening now. but not if it is a constitutional violation.
Most people are confused about the difference between mine tailings or, specifically, magnetite iron ore tailings, which NLIndustries has been shipping out by truck for many years and of which, according to an NLI letter from last November 21 to the STB, there is only a few years worth left, and waste rock. The latter was taken out of the open pits before mining stopped in 1982 and piled up all over the property, giving it a rather spectacular appearance. Even Saratoga and North Creek got it all confused in their initial filings with the STB.
The magnetite ore tailings piles result from ore that has been processed by physically crushing it and then spewing it off the end of a conveyor belt as it comes out of the mill to build up a pile.This byproduct of the former mining for the ilmenite ore that stopped in 1982 has good value but the operation involves only a few people at most. I have heard that the piles are frozen all year around and that only a little thaws at a time for removal.
Since the magnetite ore will soon be gone, what Saratoga and North Creek really are aiming to haul is crushed waste rock. Some of this was hauled out in the late 1980s after Harold Simmons bought the operation. It is a bulky low value byproduct suitable for primarily for base fill for roads. Since NLI removed all railroad of the mill buildings in 2006, including the crushers, presumably NLI will continue to use portable crushers.
NLI has done nothing but shut down the railroad in 1989, try to sell off all of its land to the State during the 1990s, finally sell all but 1200 acres in 2003 including the reserve ore deposits, apply to APA to tear up the rails in 2005. It’s questionable whether NLI is now going to go into the waste rock crushing and shipping business on any significant scale. If you look at the businesses that Valhi/Kronos/NLI are in, that doesn’t fit the model.
“Since the magnetite ore will soon be gone, what Saratoga and North Creek really are aiming to haul is crushed waste rock.”
That is exactly what I heard from a higher level railroad employee when this subject was first broached. They are NOT going to be hauling tailings, they are going to be hauling road stone, which is also what I saw the Essex County truck hauling a couple weeks ago. (And I believe how it was first reported by Denton).
I look forward to Solidago’s apology.
JW
The definition of tailings is “Refuse or dross remaining after ore has been processed” – which to me at least means all the rock, valuable or not left over from a mining operation.
Right on. NL was after the ilmenite ore. The magnetite iron ore was a left-over byproduct, essentially an impurity that had to be removed. (This was the direct opposite of the situationin the 1826 to 1855 era when the mining was for magnetite iron ore and ilmenite was the impurity.) As you say, the tailings are the leftovers from the process.
Right on. Leftovers from the mining or milling process. In this case NL fould some use for this byproduct and made some money on it, but not much. The operation, with a couple of people to pay and equipment to rent, only makes about $100,000 a year. I don’t know if that’s gross or net but NL is on record with the STB about this.
Charles, can you clarify your statement that “… Under the State’s common law on easements, abandoned easements immediately terminate, are extinguished and full title reverts to the underlying property owners.”?
There has to be an unstated caveat, because if true it would also seem to void the claim that any water in the state that can be traveled in a canoe is subject to an easement for public travel, even if it had never been used as a public highway, or hadn’t for generations. It also would have made a good defense against James McCulley’s claims regarding Old Mountain Road, which, unfortunately, held up in court.
Also, I’d assume that your organization has put together some facts and figures on what the environmental impact of the railroad would be compared to the status quo, such as hauling the material out by truck. It’d be great if you could share them. For me, like many, environmental considerations are the most important ones.
If you look online on the STB website you will see reference to a couple of cases about it in our June 4 protest petition.
Let’s not mix this up with nav rights and Old Mtn Rd.. If we live long enough we will see the final results of the Shingle Shanty case and it may illuminate that subject of nav rights further – or not.
On your last point, we are not concerned about environmental impacts in the usual sense. We are concerned about the impacts of of the STB decision on the Forest Preserve and Article 14 of the Consitution in the first instance. If we are lucky there will be no environmental impacts, such as that caused by one train a day, five days a week, on air quality, which is what Saratoga told the STB.Such impacts are trivial and are of no concern.
Morrison said: “… Under the State’s common law on easements, abandoned easements immediately terminate, are extinguished and full title reverts to the underlying property owners.”
Funny, this is the same guy (and organization) that has been arguing for decades that every waterway in the state one can get a canoe down is a public highway, even if it has never been used as such.
The Adirondack Committee of the Atlantic Chapter of the Sierra Club fights for the interests of hikers and paddlers, not the environment. These interests are aligned to a point, but where they diverge, you can be guaranteed they’ll fight vigorously for their preferred forms of recreation.
So solidago, same question for you – do you support the notion that the federal government should be able to seize state lands and then turn them over to a private corporation?
Yes, I support the use of eminent domain. You don’t?
And you know very well that the railroad is being reopened to haul tailings, which are now being hauled out by truck – http://www.northcountrypublicradio.org/news/story/20005/20120619/iowa-pacific-wins-fight-to-rebuild-railroad-into-adirondack-park
Asking Chris “what evidence” he has that this is the case just seems to be a disingenuous rhetorical maneuver.
Now what evidence do you have that hauling tailings by train, a far more efficient mode of transport, instead of truck would have a negative environmental impact?
Solidago,
1 – No, I do not support the seizure of private or public property for the use of for-profit corporations. I’m surprised to hear you do, or that anyone would.
2 – I realize you like to think you can read my mind, but no, I wasn’t aware they were hauling tailings – I was there two weeks ago and saw one county truck. In any event they are not cleaning up the tailings, or doing a mine reclamation.
3 – I never made any claims about hauling tailings by train or truck. That’s not even an issue in this story, which is about the federal government seizing private and public land and turning it over to a for-profit corporation.
It seems to me that it’s disingenuous to oppose the state’s purchase of lands (or easements) to support the local wilderness tourism economy, but support the state’s SEIZURE of land to support the the local tailings hauling economy.
Seem like that’s picking winners and losers isn’t it?
The duty of the journalist is to further those ends by seeking truth and providing a fair and comprehensive account of events and issues. Conscientious journalists from all media and specialties strive to serve the public with thoroughness and honesty. Professional integrity is the cornerstone of a journalist’s credibility.
Mick I find it very ironic that your are preaching journalistic integrity then post a Fox News clip.
John, National Grid and your phone company are for-profit corporations, tightly regulated just like the railroads, whose right-of-ways were created by eminent domain. You are opposed to them and the services they provide? Are you off the grid?
Almost every piece on this topic mentioned that the railroad was being refurbished to haul tailings. It is exceptionally surprising that a person in your position would be unaware of this, especially when you go so far as to challenge someones mention that the railroad was going to be used to haul tailings.
You are the one who challenged Chris’ suggestion that removing the tailings by train would be environmentally beneficial. If you are going to ask for evidence as to why this is the case, why shouldn’t you provide evidence that it isn’t? Or are you subject to different standards?
The government used eminent domain to create this right of way in WWII because titanium was a critical material for the war effort – the railroad simply wants to use this existing right of way to haul tailings. Granted, hauling tailings isn’t critical, but neither is this blog, the existence of which would be impossible without for-profit corporations making use of right-of-ways acquired through eminent domain.
Soidago, I’ll talk to you at the correspondents dinner next week.
Solidago,
Carry-on all you want, I still oppose seizures of private and public lands for the benefit of corporations. National Grid and the Cable Company should be publicly owned non-profit municipal utilities. That’s something I’ve argued for years.
This however, is entirely different. This is the taking of private and publicly owned and supposedly constitutionally protected land for sheer profit motive alone – not for a necessary utilitity. This is a straight-up theft of New York State land by the Federal Government for no other reason than to hand it over to a private corporation. This is the kind of thing range wars were fought over in the old west.
I find it remarkable that the private property minions and mouthpieces aren’t up in arms, but instead defend this taking of private property. This goes a long way to suggest that the so-called “property rights” activists are really more concerned with fighting a culture war against environmental conservation, than they are with adhering to any principles of property rights.
John – it has been economical to ship the remains of the magnetite iron ore tailings by truck because it is still profitable to do so after the costs of truck transport are tallied up. Also, there is not enough of this stuff left to warrant sending it out in freight cars if and when they start running.
Crushed waste rock, on the other hand, is basically bedrock – a low value, heavy and bulky product which would be too expensive (read unprofitable)to ship by truck. And it is plentiful, lying all over the surface of the property near where the mill buildings used to be.
Crushed waste rock is what Saratoga and North Creek is after but in fact you can find this kind of rock almost any place. Do we really want to have an industrial rock crushing operation at the foot of the High Peaks Wilderness, apart from the fact that the railroad that facilitates it will be a violation of the State Consitution?
Charles I was there yesterday and there was a line of trucks hauling tailings and there is a pile at the mine that is 3 or 400 ft tall and covers acres of land so it must be worth something for them to be hauling it .
John, the eminent domain action that created the right-of-way occurred in 1942, during WWII, which was subsequently turned over to a private corporation after the damage had been done. We are talking about an existing railroad that had been used for nearly 50 years, not a proposed one. If someone was proposing a new railroad or road through Forest Preserve, you’d better believe I’d be opposed to it.
Do you have some facts and figures regarding the environmental impact of using the existing private railroad to haul the tailings (magnetite ore and waste rock) versus sending them over our public roads? Here’s one for you – on average a train can move 1 ton of freight about 484 miles on one gallon of fuel – http://www.mnn.com/green-tech/transportation/questions/which-is-more-efficient-for-freight-truck-or-train – which is about 4 times as fuel efficient as a truck.
As you claim to be concerned about environmental conservation (as opposed to the interests of hikers and paddlers, whose experience in the area would presumably be diminished by the reopening of the railroad), I assume you can throw some good facts and figures back at me.
These law suit people are boring. Not only that, they are carpetbaggers.
They exist just to sue to people will donate money to them so they can get paid to not have a real job that produces nothing.
Pete,
Here is why there are so many lawsuits: It’s profitable!
In the United States of America, the Equal Access to Justice Act (EAJA) authorizes the payment of attorney’s fees to a prevailing party in an action against the United States absent a showing by the government that its position in the underlying litigation “was substantially justified.”
http://www.youtube.com/watch?v=MzTSGNkPnmE
Fox News is your source? Really?
The story is true but a classic spin job to get the idiots that watch their program all worked up.
Dan,
If it were the New York Times publishing a similar article, would that make it easier for you to accept the facts? Feel free to do a little independent research on the Equal Access for Justice Act and see where your taxpayer dollars are going. It’s major abuse by environmental organizations who have figured out how to game the system and turn it into a profit center.
Were you not aware of this?
We understand the law. The “spin” is that they are doing it to make money. That is preposterous and the classic Fox news spin. These are NPO’s that want to protect the environment and are holding the gov’t accountable.
Good! Glad there are watch dog groups keeping the Gov’t honest. Gov’t should not be exempt from following the law either.
The 100-year extension of the federal lease, starting from 1962, is a big problem in that the language agreed to by NYS in ’62 contradicts itself. The reason given is to maintain the purposes of the 1942 federal taking for the removal of material essential to winning World War II (ilmenite or titanium dioxide), but also “for the location, relocation, construction, maintenance, operation and removal of railroad facilities” which by 1962 had nothing to do with winning the war. Organizations around in 1962, like the Association for the Protection of the Adirondacks, had the opportunity then to take this issue to court, but did not.
John would you be supportive of reopening the line if a terminus was added to drop hikers off at the doorstep of the High Peaks? I think it would be cool, but I’m not sure it would be practicle or profitable. Also the train ride on the current line would be cool if extended to Tahawus. If not reopened for the train traffic, I could see the positives of a bike trail, however a ATV or snowmobile trail could also be considered.
Dave – Some problems in your first sentence. The 100-year easement taken by the feds in 1962 was not an “extension” of the 15-year easement. Rather it superseded it. Also it only applied to the Forest Preserve since the easements on private land were permanent in 1942 and there was no need for further action on them in 1962.
There was no extension of a 100 year “federal lease,” it was the easement. But nevertheless a lease was involved. From 1942 to 1989 when the feds auction the rr and NL bought it for $950,000, the feds leased the rr to NL and the D & H rr operated it under contract to NL. In 1961 the new lease was set at 99 years. I suspect that this is the reason for setting the new easement at 100-years – so the lease and the easement would run parallel with each other. he lease is in DEC Real Property files but I did not copy it. I also suspect that this “double trouble” was a main reason why the State did not go to court.
Also the State did not write the easement language, as you say, but rather only cooperated with the feds on the appraisal of the easement. They practically gave it away.The State received $62.50 a year in a lump sum of $6,200 for the 100 years – adding insult to injury. We got more money in 1942 for the “duration plus 15 years” than we did 20 years later for the 100 year easement.
In my opinion, however, if the State had gone to court it could have killed the new easement and the lease would have been rendered worthless (Let NL try suing the feds for its value.)
Several comments based on the conversations above.
1. From the get-go, I have always heard this was about the stone, not the residual ore (which is the black processed dust “stored” all over the foreground and lower slopes to the right as you enter the facility. However, I think IowaPacific’s interest can be more broadly characterized as “freight” of any kind, whether it is stone or ore, so the argument is really moot regarding what exactly they are after.
2. For clarification, NL does not load or process the stone, Paul Mitchell has a concession/contract and pays NL for the stone they process and sell. PM owns the crusher, and in any new development with IowaPacific NL will likley maintain a similar relationship, selling the stone to them, or they would buy it processed from PM, or they could cut out PM and set up their own processing.
3. The huge pile is not frozen year round, though the core is. With the significant reduction in its size over the last 5-10 years that probably will change.
4. As far as I know, NL does pile and load the ore when some is ordered and sold.
5. I find it curious people are working so hard to suggest the Feds are the problem, and hold some sort of key to this, when NYS is the party that walked away from the line. They had the option, and intended from what I understand, to buy the rights back when they were auctioned off. When they heard NL was interested they backed-off and allowed NL to purchase the rights uncontested. So in terms of “abandonment” I would interpret the history more broadly as NYS has abandoned its interest in recovering the land assocaited with the line and therefor pretending A) the Feds are “grabbing private property” is disengenuous because they are out of the picture since the 80s and B) suggesting the STB, charged with reviewing and authorizing railroads, should be intervening on the scale of land rights strikes me as a preposterous stretch.
Cliched, and meant to be tongue-in-cheek, I feel pretty clearly the land rights “train has left the station” and there is no going back on that. And because of that, because NY already made the decision to allow the railroad, and therefor implicitly the economic activity at Tahawus, it is simply the STB’s job to determine how the line may be used. Which they have done.
So that leaves a very different, and I think more interesting conversation – what should happen? Should we encourage IP, with the belief that any stone removed over time is lessa a disturbed landscape and an improved opportunity for reclaimation/restoration? Is the potential of adding 5-10 jobs (10 may be perhpas opptimistic) better than the potential of adding 0? Is running a crusher, loaders and a train (frequency unknown) “right up against wilderness” disruptive? And is so, how can we measure and quantify the degree of disruption?
I find these questions far more interesting then pretty much all of what appears above.
Good thoughts, Track. On # 1 you are right. IP or Saratoga or SNCR is a speculative operation. They are afyer whatever freight they can get, whether it is crushed waste rock, magnetite iron ore from the tailings piles or garnet. They will also go back to STB and ask for approval for a tourist train if they see any money in it. In the end, if the operation folds, they can always take a write-off and salvage the rails for a million or more, which is what they paid for it ($975,000) last November and what NL paid for it in 1989 (%950,000). So nothing is “moot.” It’s the old story – “follow the money.”
On #2, yes, I thought that is what they were doing but I didn’t know the details. NL inevitably would contract this out. They are not in this kind of business directly.
Question: – Are these contractors really going to go in the crushing and loading of waste rock to the extent of filling one train a day, five days a week, jumping up from the few truckloads of magnetite ore they are taking out now? I’ll believe it when I see it.
On # 3, thank you for the clarification. Same on #4
On #5, I am to blame. After the 1986 Bond Act, as a member of DEC’s Executive Bond Act Committee one of the projects whose acquisition I was asked to coordinate was Tahawus. That’s another story but when GSA was going to auction the railroad, A couple of them went to their Boston office and talked about the auction. We had the Nature Conservancy ready to bid on it when it became apparent that if NL was going to come back and mine the Cheney Pond reserve deposit, they would need the railroad to get the ore out. In good faith with Gordon Medema, I advised DEC executive staff not to bid. In recent years I have been kicking myself – hard. So, you heard the story right. After a few years it became obvious that NL was never coming back. Throughout the 1990s they tried to sell the whole 11,200 acres to the State but in the end in 2003 they kept the 1200 acres on which they could not get a certificate showing that they were free of environmental liability (and therefore the State could not buy it) and OSI bought 10,000 acres, selling 7,000 to the State in 2007 and selling the southerly 3,000 acres for private forestry. That 3,000 acres has an easement on it that would allow someone to mine the Cheney Pond deposit, added at the request of George Canon. The liklihood of that happening are nil. NL knew when they sold it in 2003 to OSI. as a result of test drilling in the late 1980s, that it was low quality ore.
I’ll come back to your other comments later.
[…] trying to reclaim the space. But the future of that seems uncertain too, because that nature may be threatened again. It seems as though I will have more shooting to do there over the next few […]
Wow Charles, didn’t realize you were part of that decision-making process, that must have been frustrating and I am sorry you’ve had to see an agreement in which you were involved in good faith turn out as it has.
I certainly agree on all points of the economics you raise regarding activating the line back to the mine:
– Is there a real potential for ore to be a money-maker, and based on residual stocks, for how long?
– Is tourism a money-money, and what level of investment in infrastructure* is required before it could be? (*terminal station, bathrooms, trail or shuttle to Upper Works from current terminis, signage and way finding, saftey, etc.)
– Is rock/over burden/tailings a money-maker, and at what scale? Sure Carzy Eddie made money on “volume volume volume” but will that apply in this context?
I believe there is valid skepticism any one of these could support the operation of the line as a sustainable economic model. Perhaps all in combination, but it seems reasonable to question the true potential of realizing that vision. It would take a company with a level of commitment to the communities involved, not just their bottom line.
At this point Iowa Pacific is an unknown in this regard, and from what I can tell to everyone since they are not particularly communicative to the Supervisors of Newcomb or Johnsburg, or even to direct requests from others. So I have no choice but to be leery of their intentions until they prove otherwise.
Honestly, this dissappoints me because I would like to see the line function as a low-impact economicaly successful operation, a small piece of what needs to be a diverse approach to stimulating and contributing to local economies however as of now, I find it hard to see how this comes to fruition.