Last 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.