Monday, January 20, 2014

Green Groups Say NYCO Drilling Would Violate Law

plumley lot 8Earthjustice, an environmental group that specializes in legal issues, contends that NYCO Mineral’s plans to drill for wollastonite samples in the Jay Mountain Wilderness Area would violate several state laws and regulations.

Earthjustice, headquartered in California, stakes out its position in a January 17 letter to state Environmental Conservation Commissioner Joe Martens, written on behalf of Adirondack Wild, Protect the Adirondacks, the Sierra Club, and the Atlantic States Legal Foundation. These environmental groups oppose NYCO’s plan to expand an existing mine onto the Forest Preserve.

In November, the public approved an amendment to the state constitution authorizing the state to give NYCO two hundred acres in the Wilderness Area in exchange for land of equal or greater value. However, the swap will not take place unless NYCO confirms that the state parcel, known as Lot 8, contains sufficient reserves of wollastonite.

In the letter to Martens, Earthjustice attorney Deborah Goldberg argues that the drilling would violate the Adirondack State Land Master Plan, the Jay Mountain Wilderness management plan, and state Environmental Conservation Law, among other laws and regulations.

Furthermore, Goldberg contends that the laws and regulations cannot be changed to allow the drilling without triggering the State Environmental Quality Review Act, which would require the state to prepare an environmental-impact statement.

Article 14 of the state constitution declares that the Forest Preserve “shall be forever kept as wild forest lands.” In amending the constitution last fall, Goldberg says, the public removed only one layer of protection for Lot 8. However, she adds that the state cannot authorize drilling “in complete disregard of more than a century of vigilant protection of state forest preserve land.”

Even if the state took the proper steps to authorize the drilling, Goldberg contends, the work proposal would be subject to additional review under the Adirondack Park Agency Act, the Freshwater Wetlands Act, and state mining regulations.

Changing the laws and regulations and conducting an environmental review likely would take many months. Yet, NYCO wants to begin drilling soon. In fact, the company had hoped to start this month.

Dan Plumley, a partner with Adirondack Wild, visited Lot 8 on Friday with a NYCO geologist and a forester from the state Department of Environmental Conservation. He said NYCO plans to cut a twenty-foot-wide road that will crisscross the parcel. He estimates that it will total at least three miles and require the cutting of thousands of trees.

“That is not a woods road; that’s a wide swath,” Plumley told the Adirondack Almanack. “And for this forest, heading toward old-growth conditions, that is a lot of trees.”

NYCO has identified more than a dozen drilling sites, each fifty by fifty feet, according to Plumley. He said the company may not utilize them all, but those that they are will be cleared. “It will be 250 square feet of nothing—everything cut,” he remarked.

Plumley’s characterizations of the mineral-sampling operations could not be confirmed today with either NYCO or the Department of Environmental Conservation.

Earthjustice asked  Martens to acknowledge within fifteen business days whether the department intends to adhere to the legal requirements spelled out in the letter.

Copies of the letter also were sent to Governor Andrew Cuomo and other state officials. Click the link below to read the letter in full.

Earthjustice letter

Photo provided by Adirondack Wild: Dan Plumley on Lot 8.



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Phil Brown is the former Editor of Adirondack Explorer, the regional bimonthly with a focus on outdoor recreation and environmental issues, the same topics he writes about here at Adirondack Almanack. Phil is also an energetic outdoorsman whose job and personal interests often find him hiking, canoeing, rock climbing, trail running, and backcountry skiing. He is the author of Adirondack Paddling: 60 Great Flatwater Adventures, which he co-published with the Adirondack Mountain Club, and the editor of Bob Marshall in the Adirondacks, an anthology of Marshall’s writings.Visit Lost Pond Press for more information.

15 Responses

  1. DM says:

    Im Shocked…

  2. Tony Goodwin says:

    I’m sorry to have to reduce this argument at this point, but my main comment on this action is to say, “You lost, get over it.” The amendment process is included in the State Constitution for the express reason that times and circumstances do change. No one in 1896 could have imagined four-lane highways that carried thousands of cars and trucks each day. Thanks to an amendment to the constitution, however, we now have the Northway. Would any of you want to go back to the earlier days of Rt. 9 – especially given how much traffic has increased since 1965?

    Yes, trees will be cut and roads will be built just to do the exploratory drilling, but give the State credit for insisting that no drilling could even take place without the amendment, and then including a contingency of what NYCO would have to do to mitigate their drilling should the results indicate that they would not mine this lot.

    I have a son who has taken his surveying and engineering degree to West Virginia where he works for a non-profit that endeavors to at least mitigate (if not stop) the effects of mountain top removal coal mining. Early on, he was involved in producing a map that tied the Upper Big Branch Mine disaster to explosions at a nearby mountain top removal site. Most recently, he has been taking water samples on the Elk River after the major chemical spill.
    So forgive me if I don’t see this issue rising, environmentally, to the level of other mining issues. NYCO is not removing the top of Slip (now Mc Donough) Mt.; they are just going to go 50-100 acres into some Forest Preserve that accidentally fell into State ownership 100 or so years ago. And in return we get at least 1,000 acres of additional Forest Preserve that will potentially bring the acreage of the Jay Mt. Wilderness closer to the supposed minimum 10,000 acre threshold for wilderness designation.

  3. Wren Hawk says:

    Compelling. It will be interesting to see what is next.

  4. Curt Austin says:

    Well, I imagine a great deal of red tape remains, in somewhat uncharted legal waters. As is the custom, it’s an opportunity for activists.

    But wait! This is different. It’s one thing when activists do whatever it takes to legally harass and punish evil corporate powers and their political cronies. In this case, however, they are fighting the citizens of New York, who approved the amendment, including its intent.

    In order to justify this tactic, they’ll have to argue that we were fooled. Or that trees were wrongfully denied a vote.

  5. Joe says:

    So,another one of these “caught you on a technicality” efforts. No big surprise really. Next step is a lawsuit, it would appear.

    This may be different. Subverting the will of the people expressed via the difficult amendment process is a risky action to take. And expensive.

  6. Paul says:

    So it sounds like it is possible that a few laws will need to be changed to facilitate what was allowed via the amendment. One possibility would be to have some transition in land take place right away to allow the exploratory drilling under the way the ASLMP is now. Or we can simply change the ASLMP as we have many times. In fact many environmental groups have favored many of the changes to the plan without any action by the legislature.

  7. DM says:

    It wouldn’t shock me if the State did something to put an stop the never ending line of “caught you on a technicality” lawsuits from PROTECT and the Sierra Club.

    This is a great game for them to play with private businesses and Towns, but playing it with the State is a risky move on their part, in my opinion.

    It is not out of the realm of possibility to have the State say “oh, you caught us on a technicality in the law, lets change the law to do away with that” or just do away with the law all together for that matter.

    Think that can’t happen?

    It was about 12 months ago that Cuomo blatantly violated the State Constitution to implement the Safe Act. Without a doubt, he knew that would cost him with a large number of voters, and would be something that nearly every New Yorker could understand. And the NRA is bigger than the top 3 or 4 environmentalist groups combined, and he didn’t mind taking them on.

    Do you really think he is scared of taking out his eraser and modifying laws that fewer and fewer New Yorkers care about, and even few even understand.

  8. Dave Gibson says:

    We respect the results of the Article XIV amendment vote, but the NYCO proposition is more complex than any in my experience. The company refused to engage in a straight land exchange, which would have been more straightforward assuming that equal or greater value of the lands to be exchanged was reasonably determined. Instead, the company demanded mineral sampling first before committing to the exchange, but while the land remains a Wilderness area. The Legislature did not enact implementing legislation prior to the vote. And the language of the amendment which passed stated that the state may authorize mineral sampling and a land exchange, implying that the state is not obliged to grant this authority. These facts mean, in our view, that existing non-constitutional laws protecting Wilderness areas must still be addressed. In our view the voters and the constitutional amendment did not nullify these other legal layers of protection. If they are properly addressed, and if the Legislature enacts implementing legislation that meets the public interest, so be it. We are presenting these arguments to the DEC and asking for their response.

    • Paul says:

      It seems to me that a straight land exchange would not have been best for the people of the state. In this case if the drilling shows that the swap should not go forward then the road is the worst thing that happens. And as we all know it doesn’t take long for the Forest Preserve to swallow up a road, even one that is 20 feet wide. I think that DM might have it right, the easiest way to deal with the issues that have been raised is to amend the ASLMP (change the law) this is not difficult to do and requires no legislative action (especially when it is something related to a project approved through the amendment process). If the drilling shows that there is going to be an expansion of the mine then the swap will go forward and the majority of the people in the state will get what they voted for, including an expansion of the Forest Preserve.

  9. Avon says:

    As a lawyer, I’m embarrassed by the “Stymie Shylock” argument that the winner can have his pound of wollastonite … so long as it doesn’t spill a drop of Adirondack tree sap. (In high school in the 1960s, I thought it was a cheap-shot victory over The Jew for our hero the debtor, who never should have pledged his flesh to begin with.)

    As an Adk lover who climbed Slip Mtn long ago, I did all I could to convince my fellow downstaters to vote against Prop 5 despite what the NYTimes said. Some did. But we lost. The State thus pledged its pound of wollastonite, stupidly harmful though that pledge might be.

    Dave Gibson may be right that it would have been better for both sides to have a clean (not contingent) deal. I myself am unhappy to learn, only now, that there’s a testing proviso. It’s like that storage-locker show on reality TV, where the buyer gets to drill into the locker he bid on, and cancel the bid if the contents are junk … but, Dave, if that’s in the deal, it’s in the deal. We’re going to have to let go of it.

    I mean that we will literally have to; we’ll lose this case. I read the legal arguments (and at 13 pages of legalese, they should call it a “brief,” not a letter!), and they’re as good as can be – which is nowhere near good enough. The case will be thrown out of court.

    The miles of horrendous roads and dozens of drilling plots (and 50×50 is 2500, NOT 250, square feet each!) are sickening. But I think it’s just too late. We can’t have it both ways – if we win an environmental victory, we want it enforced too, and I’ll be equally firm in telling the industries that they lost, and let go of it.

    So let’s move on and get some of those environmental victories!

  10. Paul says:

    Why does this “letter” give the state 15 days to “confirm the continuing applicability”? Dave, what happens in 15 days (I guess 12 days now)?

  11. Paul says:

    This does illustrate well the mountain of red tape that one has to plow through to drill a few test wells.

  12. Charlie S says:

    Tony says, “I’m sorry to have to reduce this argument at this point, but my main comment on this action is to say, “You lost, get over it.”

    We also lost the battle to stop our ex-terrorist in chief George W. Bush from illegally invading Iraq Tony.That place is worse off,by far,now than before we started dropping our bombs and killing all of those innocent iraqui’s over there….just to get to one man.It’s getting worse and that whole area is breaking up,a powder keg ready to explode.A really smart move I would say.How about you?

    My point? Just because a greater number of people favor an amendment in a Constitution,or one position over another,or Donald Duck over Daffy Duck,doesn’t mean it’s in the best interests of the whole.Personally I think this deal with NYCO has smelled from the getgo….which is so far proving to be true.

  13. M.P. Heller says:

    Earthjustice. LMFAO!

    What a load of malarky. Justice for the Earth brought to you by the people of California. What do they have tree court or something?

    I have heard of big egos before, but bringing justice to bear for the planet Earth? Oh boy. Methinks they need to spend a little less time at the ‘medical’ dispensary.

  14. Phil Brown says:

    I received a response to the letter this morning from Pete Constantakes, a spokesman for DEC:

    “DEC will proceed with a transparent public process that will comply with all laws and regulations pertaining to this matter.”

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