Friday, December 6, 2013

NYCO Mining Amendment: Fact And Fiction

800px-2013_Adirondack_Land_Exchange_MapLast month, voters in New York State approved Proposition 5, which amends Article 14 of the New York Constitution to potentially allow exploratory drilling and mining by a private mining company, NYCO, on two hundred acres of Forest Preserve lands (Lot 8) in the Jay Mountain Wilderness Area.  The amendment authorizes a potential land swap from NYCO that, in theory, will compensate the people of the state for the loss of two hundred wilderness acres, and further requires that Lot 8 ultimately be “remediated” and returned to state ownership.

In the months leading up to the vote and in the weeks since its passage, Prop 5 has stirred intense and at times acrimonious debate.  Unfortunately, the debate has tended to obscure rather than shed light on what Prop 5 really authorizes and what this novel amendment might mean for the future of “forever wild.” Here is some fact and fiction about Prop 5:

Fact:  The administration of Andrew Cuomo reversed longstanding gubernatorial opposition to opening up the Jay Mountain Wilderness to mining.  NYCO’s attempts to secure passage of a constitutional amendment to allow exploration and mining of Lot 8 span several decades. But those attempts were repeatedly rejected by both Democrat and Republican administrations that balked at the idea of opening up a Wilderness Area to open-pit mining. All that changed with Andrew Cuomo’s administration, which quickly moved to facilitate the company’s efforts to mine “forever wild” lands.

Fiction:  Prop 5 received wide public support.  In fact, Prop 5 passed by a narrow margin of approximately fewer than 139,000 votes out of over 2.2 million votes cast.  Over one million New Yorkers voted “no” on the amendment.

Fact:  Prop 5 marks the first time that the forever-wild clause was amended to allow private exploitation of Forest Preserve lands. Prior to Prop 5, the few amendments to Article 14 authorized Forest Preserve lands to be used for purely public purposes, such as roads, an airport, a cemetery, power lines, and a water supply. Prop 5 marks the first time the forever-wild clause has been amended to allow use of Forest Preserve lands for private commercial exploitation.

Fiction:  The lands comprising Lot 8 are ecologically insignificant. In the run-up to the referendum, the state Department of Environmental Conservation minimized the ecological value of the two hundred acres to be sacrificed to mining interests, stating that it had “not identified any unique ecological or natural resource features on the property.” This statement is disappointing—and misleading—for several reasons. First, the New York Natural Heritage Program survey of Lot 8 did not reach the conclusion stated by DEC. To the contrary, the survey concluded that many of its survey findings “fit the criteria for the definition of old-growth forest” and that “Lot 8 is in very good condition and maturing well.” Second, lands constituting the Forest Preserve are by definition ecologically unique because they “shall be forever kept as wild forest lands,” thereby placing them among a tiny—and unique—cadre of wild lands whose protection and conservation is ensured in perpetuity. This exceptional protection allows lands such as Lot 8 to develop old-growth characteristics and over time to provide habitat for the variety of plants and animals that inhabit different successional forest stages. Third, Lot 8 is part of the Jay Mountain Wilderness Area, and is therefore “an area where the earth and its community of life are untrammeled by man—where man himself is a visitor who does not remain”—unique by any standard.

Fact:  NYCO’s proposed development activities will cause irreparable harm to Forest Preserve lands, including Wilderness lands adjoining Lot 8.  Lot 8 is part of a nearly eight-thousand-acre Wilderness Area that will be fragmented and significantly impaired by NYCO’s proposed mining activities. The impacts of these activities, including noise, air pollution, and water pollution, will not be contained by the imaginary boundaries of Lot 8 and are likely to extend into and affect adjoining parts of the Jay Mountain Wilderness Area. Needless to say, such impacts are utterly irreconcilable with the Wilderness classification. Moreover, the requirement that NYCO “remediate” Lot 8 and return it to the state following open-pit mining will do little to ameliorate the damage. As anyone who has witnessed reclamation of mine sites can attest, the reclaimed site will bear no resemblance to existing conditions on Lot 8 and will be a visible scar on the landscape that will take decades, if not centuries, to heal.

Fiction:  Prop 5 authorizes NYCO to immediately conduct exploratory drilling on Lot 8.  Prop 5 does no such thing, for several reasons. First, the amendment merely released Lot 8 from the stricture of the forever-wild clause of the constitution; it did not remove those lands from the Forest Preserve. Lot 8 is still part of the Forest Preserve and is still part of the Jay Mountain Wilderness Area. Thus, any proposal to conduct exploratory drilling must still comply with the requirements of the State Land Master Plan, the Jay Mountain Wilderness unit management plan, and DEC regulations, all of which currently prohibit such activity. Second, the amendment clearly states that the state “may” authorize exploratory drilling, and it is therefore discretionary whether exploratory drilling is allowed on Lot 8. Third, exploratory drilling on Forest Preserve lands must be authorized by a temporary revocable permit (TRP). Thus, NYCO must apply for and obtain a TRP before it may conduct any activities on Lot 8, but DEC’s policy currently prohibits issuance of a TRP for such activities.

Fact:  Prop 5 places no limits on the duration of NYCO’s mining activities on Lot 8.  The amendment places no restrictions on how long NYCO can continue mining operations on Lot 8.  Thus, mining on Lot 8, and its attendant adverse impacts on the Jay Mountain Wilderness Area, can continue indefinitely into the future.

Fiction:  The proposed land swap will add 1500 acres to the Forest Preserve.  According to DEC, “up to 1,507 acres of land” have been identified as potential exchange parcels. This statement has been repeatedly mischaracterized as a promise that the state will receive 1,500 acres of new Forest Preserve lands in exchange for (temporarily) giving up two hundred acres.  In fact, Prop 5 does not identify any specific lands to be swapped, nor is there any binding agreement for the exchange of any specific lands.  Indeed, DEC’s Prop 5 position paper identifies only three specific parcels for a potential land swap which, all told, total just over five hundred acres—a far cry from the much-touted 1,500-acre figure.

The Prop 5 battle is far from over. Hopefully, separation of fact from fiction will aid the state in the crucial decisions that must be made in the coming months.

 

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Christopher Amato served as DEC's Assistant Commissioner for Natural Resources from 2007-2011. He is now a staff attorney with the Northeast office of Earthjustice, a not-for-profit environmental law firm and the vice chair of Adirondack Wild.




39 Responses

  1. Linda Orkin says:

    Thanks for this analysis. I voted no. I felt the way this was worded on the ballot was potentially misleading in the some uninformed voters might have seen it as a glass all full proposal.
    What can be done next?

  2. Bill Ingersoll says:

    I would also add in the “fiction” category the point that Prop 5 was pro-labor. Supporters want desperately to believe that Lot 8 will keep people employed longer. But Prop 5 was targeted exclusively toward test drilling and the land exchange. The amendment placed NYCO under no obligation to maintain any specified staffing levels for any period of time, nor does it prevent NYCO from selling the Oak Hill site.

    Simply put, there are far too many variables for anyone to make any credible, common-sense claim that Prop 5 will positively impact NYCO’s employees.

  3. John Henry says:

    I voted yes but it was close in my mind. They did a better job of messaging and rallying the votes plain and simple.

    Complain all you want, learn from it. The argument that what about the Million who voted no holds no water in a democratic election. How about the few million who did not vote for Obama or the majority whom for Gore? Same thing you vote you win or lose. Do a better job next time.

    You cannot have it both ways, I want a vote to get my things done but not a vote when you lose.

    The test of time will decide if this was good result or not. It will prove a lot going forward. Can a well defined plan benefit both jobs and the park? Can we trust the business to do it right and not abandon it leaving us with a mess on our hands.

    As a test this is a good one on a small scale that does not impact much of what we love. Yet it offers a real benefit to those who live and work there. The worry I agree with, is did it open a floodgate of other like projects? I hope not and do not think so.

    So now we wait and see what is correct; the doom or boom. I bet is not so much one or the other and that is good thing in my view.

    • Bill Ingersoll says:

      This has been a recurring complaint: “The vote is over, so move one.”

      And I would agree with this if the vote was skewed to something like 7-to-1, where an overwhelming majority of voters supported Prop 5. In that case, there would be little choice but to accept the results.

      But the narrowness of the yea/nay split suggests that while Prop 5 passed, a very significant number of voters were unconvinced. One can only wonder what could have been done to close that gap. The biggest shame is that there was no poll released a month ahead of the vote to show just how split the state was.

      The vote for Prop 5 was not a one-and-done deal. As mentioned above and by other articles on this website, there is a list of statutory and regulatory steps that need to be performed before NYCO can start drilling on state land–all of which involve public input to one degree or another. So if opponents did not rally in sufficient numbers prior to Election Day, then it may happen in the coming months.

      • John Henry says:

        So what are you proposing a super majority on all votes like this of like 75% to pass? You will never see a vote pass even one your for…

        Prop 4 would not have made it with 73%

        Drop it to 70% oh none of the other 5 made it.

        So we need to make it 55% then 4 others pass but only prop 5 fails.

        You cannot engineer outcomes to your narrow liking without having adverse affects in so many other ways.

        Or maybe only voters who live in the park get to vote. Maybe just landowners who pay taxes can vote. Or members of groups that are impacted only can vote..

        Slippery slope your on here. The system works well and is the best we have. At times some will not be happy but that is a good thing, keeps a balance.

      • Bill Ingersoll says:

        I’m not proposing anything. The vote results for Prop 5 are what they are.

        But Prop 5 was not the end of the process–it was the beginning. What I am suggesting is that now that people across the state are aware of NYCO and Lot 8, that minority of voters from November could grow into a legitimate majority over the coming months, as more people learn about the situation and become opposed.

      • Bill Ott says:

        The vote may have been lost, but the controversy is far from over. Remember Pearl Harbor? See what happens the next time a vote like this comes up. Nobody will be surprised then. The battle may have been lost, but the war is far from over.

  4. Dan Crane says:

    I found it interesting that the DEC (and others) maintain that Lot 8 is an ecologically insignificant area, given that the Jay Mountain Wilderness Area Unit Management Plan appears to indicate that a deer yard and spruce grouse (an endangered species in NY) habitat are present there. Do they even read their own reports?

    For anyone interested, check out the maps in Appendix K:
    http://www.dec.ny.gov/docs/lands_forests_pdf/jmwump.pdf

    • Phil Brown says:

      Spruce grouse do not live in the Jay Mountain Wilderness. I assume the UMP is suggesting that some boreal habitat in the region may be suitable for spruce grouse.

      • Dan Crane says:

        That’s why I said spruce grouse HABITAT is present on Lot 8. Whether spruce grouse are actually present in the Jay Mountain Wilderness is unknown; all we know is it has never been found there. Although, I personally doubt there are any present, given the small amount of habitat and its scattered nature, but then again, I am no expert.

        • Paul says:

          Dan,

          There is probably more spruce grouse habitat in the land we will get in exchange. The swap is probably a net positive as far as that goes.

          • Dan Crane says:

            I’m not sure how you can say that when we really have no idea what land we are getting in exchange for Lot 8.

            • Paul says:

              Did you check out the Heilman video? It looks pretty good. But we would have to do more work to be sure that it is good spruce grouse habitat.

  5. Dick Millet says:

    Is this true:

    “Fact: Prop 5 marks the first time that the forever-wild clause was amended to allow private exploitation of Forest Preserve lands. Prior to Prop 5, the few amendments to Article 14 authorized Forest Preserve lands to be used for purely public purposes, such as roads, an airport, a cemetery, power lines, and a water supply. Prop 5 marks the first time the forever-wild clause has been amended to allow use of Forest Preserve lands for private commercial exploitation. – See more at: http://www.adirondackalmanack.com/2013/12/nyco-amendment-fact-fiction.html#more-40667

    What about the Perkins Clearing land swap back in the 80’s? It may not have been specifically for private exploitation, but that is in fact exactly what happened. I’m not arguing for or against Prop 5 here, but I’m not entirely sure this really sets any sort of precedent. True, it hasn’t happened often (and I sure hope it doesn’t become common) but it has happened before.

    In the end, the public got more land than we lost. We need to chalk it up as a lesson learned and fight harder next time.

    Dick

    • Adam says:

      First……What land did we receive that is more than we gave up?

      Second…….The main issue is that Article 14 has forever been bastardized by Cuomo, NYCO, the Adirondack Council and The ADK Mountain club to benefit a private company that will forever alter the landscape of what was supposed to be protected from such things.

      The fact that prop 5 passed is not the issue. The issue is that those in favor of prop 5 controlled all the spice, including the financial resources to publicize their version of the story to segments of the voting public where they thought it would have the most impact in their favor. In a truly democratic society, where the voters are not influenced by anything but fact, all propositions on the ballot would have been publicized in detail long before the vote so that eligible voters could do their research and formulate a valid opinion. Not just wing it on election day. I live in Rochester, almost no one knew of the details of proposition 5 until the day before the vote, unless they were hammered with info from myself or other outdoor enthusiasts. All propositions should have been publicized in the papers months before the vote. Never once did I see anything about Prop 5 in the Rochester D & C until the day before the vote. The public was ill informed, again except for those with large pockets campaigning in their own favor, and that is a large issue here.

      • Dick Millet says:

        According to the map above, there’s about 1300 acres that are proposed for transfer to the state as part of the agreement. Maybe I’m wrong about that. I thought that was all part of the deal.

      • Paul says:

        Even Christopher’s estimation above suggests we are looking at getting more than twice the amount of land that NYCO will be using (actually I think they are only using a portion of the 200 acres anyway).

  6. Tyler says:

    I see nothing in the plan that even mentions spruce grouse and a contradiction about deer yards.

    The JMWA plan states, “There are no historical deer yards in JMWA (E. Reed, NYSDEC, unpublished data).  A GIS model of potential 
    deer wintering habitat was recently developed for the Adirondacks (S. McNulty, SUNY‐ESF Adirondack 
    Ecological Center, unpublished data).  While this model is a working draft, initial results suggest very 
    limited areas of potential deer wintering habitat within the unit.

    • Dan Crane says:

      See the last two maps in Appendix K. I did say deer yard and spruce grouse HABITAT were present. They are clearly mapping habitat and not the actual location of specific deer yards. I probably should have stated that more emphatically in my original comment.

      • Tyler says:

        Thanks for acknowledging the location of the info. The UMPs are always great documents, if only they could be updated more often.

        • Dan Crane says:

          In my opinion, it would be prudent to do an intensive biological survey of an area before proposing its destruction by open mining, but maybe they plan on doing so before the final decision. I doubt it though; I imagine the powers that be will try to expedite the process as much as humanly (and politically) possible.

  7. Dan Crane says:

    In addition, two rare plant species (pink wintergreen and northern running-pine) were historically present in the Jay Mountain Wilderness Area, as were an endangered bird (peregrine falcon) and numerous bird species dsignated as “special concern.” Whether any of these are present on Lot 8 is unknown. Although, given what I have read, Lot 8 sounds like good habitat for both northern goshawks and sharp-shinned hawks.

    • Dan Crane says:

      In addition, two other special concern species have been identified on the unit, an amphibian species (Jefferson salamander) and a reptile species (wood turtle). As with the other species, it is unknown whether they are present on Lot 8, but I will be sure to check when I do a little exploring in the area next spring and/or summer.

  8. Adam says:

    I think one issue that people should be very concerned about is that NYCO spent over $500,000 campaigning for the passage of Prop 5. However, they are required to turn over the equivalent of $1 million worth of acreage. Does anybody not see the ridiculousness of this. They spent more than half of what the state values the land at just to acquire it……..That right there, if the info was available at the time, should have/would have been a red flag to the average voter who may not know all the details surrounding the general raping of the park by the state government and NYCO.

  9. Paul says:

    This is very relevant to the discussion.

    If you want to check out some of the land that we will be getting as part of the swap you should check out this Carl Heilman II video on You Tube where you get a pretty good video portrait of some of the lane we are getting in exchange:

    http://www.youtube.com/watch?v=4xTI3-N-apY

    • Bill Ingersoll says:

      We’re in the process of acquiring 65,000 acres of former Finch Pruyn land, so forgive me if I can’t get excited about 1500 acres of roadside frontage in Lewis.

      It’s not about the land that might be acquired because of Prop 5, but the method of acquisition. The ends do not justify the means.

      • Paul says:

        Just pointing out what some of the land that is involved here looks like.

      • Bill Ingersoll says:

        I’ve been to the Jay Range several times, including multiple visits to the Lewis side–Mount Fay, Bald, Slip, Seventy. This area isn’t hypothetical to me. I’ve experienced it. And I know from first-hand observation that the lots in the map above are squat compared to the mountains that extend to the northeast of the Jays. What NYCO wants to contribute is little more than roadside scenery.

        Of course Carl Heilman’s pictures look pretty. That’s what happens when you send a professional photographer.

      • Matt says:

        You’re forgiven, but if it’s not about the land that might be acquired, why are you continuously trying to devalue it? Instead of festering on Prop 5, shouldn’t we just get on with it and start having a productive conversation about land swaps, land banks, and the like? Don’t you think that would have been the right thing to do after Perkins Clearing passed, and perhaps we would have been on stronger ground when Prop 5 rolled around? Hindsight is 20-20, right? Do you think it was purposeful that Perkins Clearing was conveniently forgotten about in the article above? Spin is spin, and it’s obvious here. Take the hit and get back in the game, don’t complain about the referee.

      • Bill Ingersoll says:

        Perkins Clearing was motivated as much by a public need as a private one, since the checkerboard land pattern prior to that land swap was mutually useless to both the state and I.P. This is why Perkins Clearing is seen as a non-issue in relation to Prop 5. It was justifiable.

        Prop 5 was just the first step in a sequence of steps. The loss was frustrating, but the narrowness of the margin was encouraging. Enough people seem to be outraged over the results that it may be possible to flip the split the other way, with more people in the state opposed to NYCO than in favor. This is not whining about the past, but getting motivated for the future when enabling legislation needs to be passed and permits need to be issued.

        If this bothers some people, that is unfortunate. My advice is to deal with it.

      • Nature says:

        Bill,

        If you can’t get too excited about 1,500 acres of roadside frontage due to the 65,000 acres of land we are about to get, then why all the fuss over losing 200 acres next to a mine? Just out of curiosity, does any of the 65,000 acres we are about to get have roadside frontage? If so, is this a bad thing, or good thing?

        My read of the proposal is the state will get lands assessed at equal or greater value than the assessed value of lot 8. With the minimum they are willing to accept as $1 million. I am not sure how this all plays out, but if they stick to this plan then I am OK with it.

        If what Mr, Amato says about the lands still being Wilderness and therefore off limits to drilling is true, then this was one very sloppy piece of work that just wasted a lot of people’s time and money.

  10. George L. says:

    My take as a lawyer:

    As I read the full text of the amendment, it authorizes the Legislature to use its discretion to swap lands (the operative words are “the state MAY subsequently convey”).

    In law, may does not mean shall.

    This amendment, obviously hastily drawn, appears only to authorize drilling without any further approval by the voters or the Legislature.

    It simply does NOT mandate a land swap.

    If the Legislature declines to engage in the land swap, it is not ignoring the will of the people, who did not vote for or approve a land swap. They approved drilling.

    So, the battle is far from over for those who choose to fight on in Albany!

  11. Christine says:

    Christopher,

    Thanks for this fabulous article, it’s bringing the real story out there. And shame to the New York Times for writing an editorial without much research on the Nyco swap.

  12. Davis says:

    Just more light shed on a well funded campaign that sold New Yorkers this unfortunate bill of goods, albeit by a slim margin. I feel ever for vindicated for seeing right through this very early on. Once again, shame on The
    Adirondack Council for promoting this amendment. They ought to be aware by now that the fallout will continue for a very long time.

  13. Barb says:

    Blame the ADK Club for putting their slimie stamp of approval on this one. Shame on their commercial asses.

  14. Matt says:

    Gosh, quite the echo-chamber in here.

  15. Colvin says:

    Mr. Amato states that Prop 5 passed by “fewer than 139,000 votes out of over 2.2 million votes cast.” A majority is a majority and this majority turns out to be approximately a 53%-47% split, which is larger than the margin of victory in any of the last four Presidential elections. The people who wrote Article XIV placed their faith in the hands of the people through constitutional amendment, and the people have spoken.

    Mr. Amato also states that “lands constituting the Forest Preserve are by definition ecologically unique because they ‘shall be forever kept as wild forest lands,’ thereby placing them among a tiny—and unique—cadre of wild lands whose protection and conservation is ensured in perpetuity,” and “This exceptional protection allows lands such as Lot 8 to develop old-growth characteristics and over time to provide habitat for the variety of plants and animals that inhabit different successional forest stages.” I agree wholeheartedly with this statement, which actually SUPPORTS the Amendment. This is why Prop 5 is such a good deal–the state will be acquiring far more lands than NYCO will get in the exchange, and all of those newly acquired lands will be subject to Article XIV forever wild clause and will eventually become old growth.

    Mr. Amato states as “fact” that this is the first time that Article XIV has been amended to allow for commercial exploitation of the Forest Preserve. However, the Perkins Clearing amendment resulted in a land exchange between the State and International Paper which allowed International Paper to commercially exploit the timber from what previously had been Forest Preserve land (and that land exchange was basically only an acre for an acre).

    Mr. Amato also states since lot 8 is still part of the forest preserve, exploratory drilling is prohibited by the Master Plan, a UMP, and DEC regulations.” Is it not true that a Constitution which now explicitly authorizes exploratory drilling on Lot 8 trumps previously adopted statutes, regulations, Master Plans, policies, etc. to the contrary?

    Finally, Mr. Amato states as “fiction” that “the proposed land swap will add 1500 acres to the Forest Preserve.” It is true that the exact acreage coming into the Preserve has not been identified yet. That’s because an appraisal of Lot 8 which accounts for the value of Wollastonite in the ground cannot be determined until exploratory drilling occurs. My understanding is that the appraised value of large chunks of timberland in the Adirondack Park is somewhere in the neighborhood of $750-$1000 per acre, which means that even the $1 million floor in the amendment should result in more than 1,000 acres coming into the State. If the appraised value of the Lot 8 comes in at more than $1 million dollars, the State will acquire a proportionate increase in acreage. Some members of the environmental community have argued that the State is being taken for a ride in this deal because NYCO spent more than 1/2 a million dollars on a PR campaign to get Prop 5 passed, thereby proving that there is a lot of wollastonite beneath Lot 8. However, the appraisal will reflect the value of the mineral in the ground. If the value of wollastonite is very significant, the net result will be that the State will receive substantially more acreage than 1000 acres. Had the constitutional amendment identified a specific amount of acreage to be acquired by the State, you can be sure that the environmental community would have argued that this would have been inappropriate until an appraisal of Lot 8 accounting for the value of wollastonite had been completed. l