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Two major developments are occurring simultaneously with NYCO Mineral’s mining operation in Essex County.
First, state agencies are trying to rush approvals for NYCO to begin “mineral exploration” on 200 acres of Forest Preserve in the Jay Mountain Wilderness, known as Lot 8, an action that was narrowly approved in a Constitutional Amendment last fall.
Second, NYCO is also seeking a massive expansion of its Lewis Mine, which abuts Lot 8 and the Jay Mountain Wilderness.
The Department of Environmental Conservation (DEC) and Adirondack Park Agency (APA) has released various draft materials that describe how they plan to implement and manage the Constitutional Amendment that authorized “mineral exploration” and possible sale of Forest Preserve lands. The DEC has determined that its best course of action is to amend the Jay Mountain Wilderness Area Unit Management Plan (UMP) for the 200 acres on Lot 8. The Constitutional Amendment authorized a two-step process whereby NYCO first undertakes a “mineral exploration” phase. This involves road building and test drilling sites. If NYCO determines that the tests show a high level of wollastonite, the ore it mines, then the Amendment authorizes that the state can sell up to 200 acres to NYCO based on a price approved by the Legislature.
The UMP amendment to the Jay Mountain Wilderness Area Unit Management Plan authorizes various measures, such as drilling and road building, within the Forest Preserve on Lot 8. The specific details of where roads will be built, trees will be cut, and drilling sites established, among other things, will be detailed in a Temporary Revocable Permit (TRP), a legal process that DEC utilizes to manage various short term, small-scale, non-conforming, yet mostly benign, activities on the Forest Preserve.
DEC has released a draft TRP that details the work plan for the entire mineral exploration phase. There will be significant environmental impacts as the forest is cleared in many locations. The road building alone in the Jay Mountain Wilderness Area will see the removal of 1,254 trees. NYCO’s drilling seeks to utilize large amounts of chemicals common to fracking operations, which are referred to in the work plan as Proposed Drilling Additives.
NYCO seeks authority to begin this work as soon as possible. The APA will review the draft UMP Amendment on Friday April 11th and determine whether to send it to public hearing. APA materials are here.
The DEC published this information in the Environmental Notice Bulletin on April 2, 2014. Read the DEC press release here.
A coalition of environmental groups that opposed Proposal 5 last fall is represented by Earthjustice, which submitted in a letter that enumerates the many ways that the DEC and APA subvert existing laws. The DEC takes the position that the approved Constitutional Amendment trumps almost all other state laws. The environmental coalition disputes that position and believes that the NYCO Amendment only authorized mineral exploration on Lot 8 in compliance with pertinent state laws.
DEC asserts: “This UMP amendment is based on the implicit repeal by the 2013 constitutional amendment of State Land Master Plan Wilderness guidelines that would otherwise prohibit NYCO’s mineral sampling operations within the Jay Mountain Wilderness area.” Yet if the SLMP has been implicitly repealed, then why is the state trying the amend a UMP, which is governed by the SLMP?
The APA senior staff supports the DEC. The APA Counsel wrote in a transmittal memo “The legal effect of the constitutional amendment is that the SLMP’s Wilderness Guidelines do not apply to Lot 8; thus there is no discretion for the Agency or DEC whether to permit this activity and no question about the activity’s conformance with the SLMP.”
Yes, New Yorkers approved mineral exploration on the Forest Preserve in Lot 8, but the voters did not approve subverting and ignoring the SLMP. In a UMP Amendment, the APA must make a finding about conformance with the SLMP. Since the SLMP does not allow drilling and road building in Wilderness Areas, how can a UMP Amendment that authorizes these activities comply with the SLMP? The APA does not get to pick and choose when to uphold the SLMP and when to disregard it.
Besides the very real problems with trying to exempt these new activities from SLMP review, the APA and DEC are rushing this process in ways that openly violate the timetables established and agreed upon in the APA-DEC Memorandum of Understanding (see pages 13-14). The public has an expectation that state leaders should obey state policies.
There are other weighty issues involving cumulative impacts and natural resource impacts under the State Environmental Quality Review Act (SEQRA) that the APA and DEC also need to evaluate.
The DEC and APA need to regroup. They need to slow down the train and figure out how they will implement Constitutional Amendments that allow activities prohibited by the SLMP. They also need to be mindful about obeying their own policies for public disclosure and official actions as well as upholding SEQRA.
The DEC has opened a public comment period on the draft TRP and draft UMP Amendment. Click here to file a comment online.
There is time to do this right because, for its part, NYCO has embarked upon a massive expansion of its Lewis Mine. At the same time that the DEC and APA are taking public comments on a plan to allow NYCO to undertake “mineral sampling” in the Forest Preserve west of its Lewis Mine, the APA and DEC are reviewing a new permit application (2013-138) by NYCO to expand its mining operation in another direction.
NYCO seeks to expand its mining operations from 90 acres to 132 acres, the largest single increase ever sought since NYCO has been regulated by the APA. NYCO seeks a 46% expansion of its 90-acre open pit mine in a southeast direction towards Derby Brook, which involves wetland destruction and construction of a new 1,400-foot “tributary” to Derby Brook.
NYCO’s proposed expansion will have a negative impact on the rural residential community on Wells Hill in Lewis. NYCO plans to sustain its wollastonite mining at current levels, but also seeks to add aggregate rock mining – a new activity at its Lewis Mine. As part of this massive expansion, NYCO is seeking to expand daily truck trips from 63 per day in the spring and fall, and 45 a day in July-August, to a total of 100 a day from April-November. NYCO also seeks to expand hours of operation from 10 hours a day to 11hours a day and start operations earlier at 7:00 AM.
The increased hours of operation and truck trips means that local residents along the truck route on Wells Hill, where trucks enter and leave NYCO’s Lewis Mine by the same route, will endure 200 large, loud truck passes a day. Over 11 hours, that’s one truck pass roaring by every 3.3 minutes. That is an unacceptable burden to place on the residents of Wells Hill. The increase in truck traffic severely disrupts the rural quality of life for local residents. Homeowners along the truck route say these trucks make their homes shake when they roar by on the narrow local roads.
The actions by the state and NYCO show a unified front to massively expand NYCO’s mining operations in a way that openly subverts state law, negatively impacts the environment, and negatively impacts the rural quality of life for local residents.
When NYCO was given its initial APA permit for the new Oakhill Mine in 1998, it was adamant that it would operate both mines simultaneously only for a short, overlapping time period. The Oakhill mine is 1.5 miles away from the Lewis mine. Since then, NYCO has managed to continue to expand the Lewis Mine for wollastonite mining, and the purchase of Forest Preserve lands will continue this process, while at the same time expanding the Oakhill Mine for aggregate mining under a long-term lease to Graymount, which mines and produces a variety of rock products. NYCO is seeking to expand trucking at Oakhill from 91 trucks per day to 150 as part of its new permit application.
Under NYCO’s new application to the APA, both sites will operate full tilt for the long-term. Mine related blasting, heavy earth-moving equipment, rock crushing, and trucking will all significantly increase. This is an unfair burden placed on local residents. The impact from two mines going full bore was glossed over by supporters in the run-up to the November vote. Here’s how one of them wrote about it while encouraging people to vote yes: “NYCO is currently unable to use its other mine, the Oak Hill site, because it is currently leased by an aggregate company that is mining the overburden for use in aggregate products, preparing the site for eventual wollastonite mining.” NYCO was “unable” to use Oakhill for wollastonite mining because it chose not to for purely financial reasons.
One interesting piece of information to come out in NYCO’s application to the APA/DEC to expand its Lewis Mine states that “The mine will be reclaimed to grassland within two years of the cessation of mining.” Under the NYCO Constitutional Amendment, lands sold to NYCO for mining will be returned the Forest Preserve after mining is completed and NYCO “remediates the site.” Prop 5 proponents hyped this as a great deal. In a ‘Vote-Yes’ piece in Adirondac magazine DEC Commissioner Joe Martens wrote “NYCO plans to disturb only a quarter of the 200-acre Lot 8. At the end of the mine’s twenty-five year life, the constitutional amendment requires the land to be reclaimed with native plant species and conveyed back to the state for inclusion in the Forest Preserve. The approximately fifty disturbed acres would once again take on a wild forest character.”
There is nothing in the NYCO Constitutional Amendment that says anything about replanting of native species or limits of 50 acres.
Read it for yourself:
“Notwithstanding the foregoing provisions, the state may authorize NYCO Minerals, Inc. to engage in mineral sampling operations, solely at its expense, to determine the quantity and quality of wollastonite on approximately 200 acres of forest preserve land contained in lot 8, Stowers survey, town of Lewis, Essex county provided that NYCO Minerals, Inc. shall provide the data and information derived from such drilling to the state for appraisal purposes. Subject to legislative approval of the tracts to be exchanged prior to the actual transfer of title, the state may subsequently convey said lot 8 to NYCO Minerals, Inc., and, in exchange therefor, NYCO Minerals, Inc. shall convey to the state for incorporation into the forest preserve not less than the same number of acres of land, on condition that the legislature shall determine that the lands to be received by the state are equal to or greater than the value of the land to be conveyed by the state and on condition that the assessed value of the land to be conveyed to the state shall total not less than one million dollars. When NYCO Minerals, Inc. terminates all mining operations on such lot 8 it shall remediate the site and convey title to such lot back to the state of New York for inclusion in the forest preserve. In the event that lot 8 is not conveyed to NYCO Minerals, Inc. pursuant to this paragraph NYCO Minerals, Inc. nevertheless shall convey to the state for incorporation into the forest preserve not less than the same number of acres of/and that is disturbed by any mineral sampling operations conducted on said lot 8 pursuant to this paragraph on condition that the legislature shall determine that the lands to be received by the state are equal to or greater than the value of the lands disturbed by the mineral sampling operations.”
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Peter,
Thank you for supplying the Constitutional Amendment language. It has been a while since I read it, but after reading again I come to the same conclusion: The people of the State of New York authorized all of the actions that seem to bother you so deeply. It appears the majority of voters are OK with a mine in the Adirondacks (even though you aren’t). It can’t all happen in somebody else’s backyard.
Nature,
The issue is not whether the NYCO Constitutional Amendment authorized mineral sampling and a possible sale of Forest Preserve lands — the voters approved those things. The issue is: Should other state laws be subverted while implementing the amendment? I believe that those laws still apply and that state agencies need to comply with them.
The issue is not whether there should be mining in the Adirondacks — of course there should. The issues are: Should NYCO be allowed to completely change the character of a neighborhood by running a truck every 3.3 minutes on small rural roads? Should NYCO be allowed to run two mines full bore when they originally sought permits to ostensibly close one while opening the other? Should NYCO be allowed to run it mine 11 hours a day?
Isn’t the whole point of making a constitutional amendment that it overrides conflicting laws?
Voters approved of the mining, and implicit in that is that state officials would figure out how to let it happen. Let them do the job we asked them to do.
“Isn’t the whole point of making a constitutional amendment that it overrides conflicting laws? ”
No, the Constitutional Amendment was passed to remove the “Forever Wild” Constitutional restrictions on this land – not eliminate all laws related to NYCO and this mine. It has nothing to do with the rest of the laws that govern state land management, mining, environmental protections, or issues such as tax laws, labor protections, highways and transportation law, the use of explosives, corruption, child labor, etc.
A constitutional amendment overrules state laws if it says it does, or if they’re mutually contradictory, or if a court holds that the clear intent of the amendment necessarily contradicts the state laws.
This is familiar territory to me as a (downstate) lawyer.
Here, the amendment begins, “Notwithstanding the foregoing provisions,” but that phrase means the foregoing provisions of the Constitution (in which this text now exists), *not* any statutes or regulations.
Peter Bauer’s article implies that a lot of statutes would be violated if the mineral sampling occurs as NYCO plans – and it surely looks like pretty destructive sampling. The amendment does contemplate some destruction – it concludes by providing a remedy for what would inevitably result from sampling, if indeed the land does not end up getting sold for mining.
That pretty much proves that the amendment specifically permits some destruction. But it doesn’t prove that the extent and methods of *this* proposed sampling are within the scope intended! As an opponent of Prop5, I’m skeptical that NYCO, having won the vote, would be modest about its victory; I suspect they’re overreaching as much as they dare, perhaps expecting to be reined in a little.
I believe a court injunction to cut back the scope of the sampling is available, since the amendment doesn’t necessarily override the laws to the extent needed for NYCO’s plan. But one would need proof of the likely destruction of the plan, compared to the destruction of a more modest, yet still effective, sampling. A good lawyer would need to work fast with accurate data!
Wasn’t this amendment created by an unprecedented (and very smart, from their point of view) lobbying campaign 150 centered downstate?
Business, once again, got its way through money in politics at the general population’s expense.
In fact there was considerable support for this amendment in the Adirondacks including some very prominent local figures:
http://www.youtube.com/watch?v=4xTI3-N-apY
It’s bad enough what continues to happen to the native landscape of America from road building and sprawl development. Nowadays, not even designated Wilderness is safe from the diggers, shovelers, polluters, graders, dozers, and such.
“The APA does not get to pick and choose when to uphold the SLMP and when to disregard it.”
Peter that is true. But I think the voters do in this case.
I am not sure that tons of ongoing discussions and articles about this is a good idea for folks on either side of the issue. This amendment was passed, they are going to get to do their exploratory mining under a TRP, and if the land is sold to NYCO the mining. Move on to issues where you and your group think that you can have some type of positive impact.
The constitutional amendment was in no way a carte blanche authorization to subvert other applicable laws, of which there are many. Voters made their choice but it is up to NYCO to figure out how to exploit that choice within all the other laws that were not amended. And it is up to people like Peter to point out those laws and how they apply. That is exactly what a positive impact means to many folks!
Perhaps it’s time to move on and focus on getting a superior parcel added to the forest preserve in exchange for the 200 acre parcel. Also it would be good to press for more concurrent and quality reclamation at the existing mine.
I think the NYCO sampling proposal is unjustifiably excessive, and I hope it gets reined in.
But Smitty’s suggestion is important regardless! Being ready with a superior parcel all set to go if and when the sale occurs, and pressing for adequate, prompt and if possible concurrent reclamation if the sale doesn’t occur, are clearly necessary in addition to stopping any and all sampling destruction that exceeds the minimum necessary for confirming the presence of wollastonite.
Dropping the ball on any of these angles will hurt.
“There is nothing in the NYCO Constitutional Amendment that says anything about replanting of native species or limits of 50 acres.”
Allowing the site to re-seed from the surrounding forest (already holding thousands of years of genetic diversity) is the proper way to reclaim the site. I would not try and plant “native species” they get from somewhere else.
As far as the 50 acres. His point was that was their “plan”. They may or may not disturb more that 50 acres. I think that voters expect 200 acres to be disturbed and that is what was in the amendment.
Again and again, it has been said that this isn’t perfect. Far from it but the net result for the Forest Preserve is positive.
NYCO insisted on a two-step process – (1)Do the test drilling first and see if anything is worth starting full-scale mining operations, and if it is worth going ahead then(2)based on State appraisal of the 200 acres with mineral value the Leguslature must determine whether the “equal value” land NYCO is offerring in exchange for Lot 8 is truly of “equal value,” given a $1.0 m.minimum trice.
So while the test drilling is in progress, Lot 8 is still Forest Preserve Wilderness although the amendment lifted Article 14 restrictions enough so that test drilling can be done minimal environmental damage and accordance with still-applible nonconstitutional laws and procedures.
For example, the SLMP prohibits motorized uses in Wilderness areas and should be amended before trying to amend the Jay Mtn. UMP that includes Lot 8 before issuing a TRP. Yet DEC is NOT doing that despite the fact that DEC cannot just ignore a major requirement like that because they would like to expedite the end result.It is illegal. Then, upon close reading, it is found that the draft UMP amendment itself and the draft TRP are badly flawed and the consolidated public review process for looking at both actions at the same time is another short-cut that shouldn’t be happening.
NYCO,quite ineptly, has applied for a permit to open a large new mining area next to the Lewis Mine to make use of their Lewis Mine crusher and truck garage to the Oak Hill Mine, a $400,000 move. They wanted to hedge their bets against the possibility that they won’t get Lot 8 for full-scale mining. Rather than complicate the existing issues, wouldn’t it have been smarter to wait until the SLMP, the UMP, the TRP etc. are cleared away first before filing this application?
NYCO pulled a fast one when it had Behan Associates telling everyone that if it did not get Lot 8 it would have to close down and 105 people would be out of work, when the reality was that it had been removing the overburden for years at Oak Hill getting ready to mine within the next year or so. Now they are pulling the same trick with another new operation next to Lewis that they never told anyone about before.Fool me once, shame on you. Fool me twice, shame on me.While everyone is putting themselves through the wringer on Lot 8, they are just playing their own game of feathering their next.They aren’t and never were going to close down. And they are still prospecting for more ore. They never needed Lot 8 and certainly did not give a fig that it is Forest Preserve Wilderness.
DEC, APA and the Governor’s office staff and Betty Little have been taken. When NYCO said they “needed” Lot 8 to survive they just rolled over and became part of the con job. NYCO said “jump” and they all said “How high?”
There are good reasons for Earth Justice and the enviros to go to court based on the issues at hand in this case. But when one thinks about the precedent that would be created for the future of the Forest Preserve and Article 14 if the illegal actions of DEC go unchallenged, I say thank you to Earth Justice, PROTECT, the Sierra Club, ADirondack Wild and the Atlantic States Legal Foundation for doing what they are doing. And why haven’t the Adirondack Council and the Adirondack Mtn. Club joined with them? .
Mr. Bauer claims the constitutional amendment authorizes the “sale” of Lot 8. Perhaps he should read the amendment that he quotes at the end of his article. The amendment does not authorize a “sale;” instead it authorizes a land exchange, where the acreage and value of the land coming into the Forest Preserve is equal to or greater than the value of Lot 8, with a $1 million floor. I guess we can quibble over the meaning of the amendment on this point, but to me a “land exchange” is not a “sale.” “Sale” implies a cash purchase.
Mr. Bauer states that the Constitutional Amendment passed by a “narrow” margin last fall, as if that somehow denigrates its effectiveness. I thought that in a democracy the majority ruled, even if only by one vote? The NYCO amendment passed by a margin of approximately 54% to 46%. I wonder if Mr. Bauer is aware that when the forever wild clause was approved by the voters in 1894, it (along with other amendments it was coupled with) passed by a similarly “narrow” margin of approximately 56% to 44%?
I thought one of the fundamental principles of our country is that the constitution is supreme–that this was what separated us from totalitarian dictatorships where constitutions are ignored. I think it is nonsensical to argue that the constitutional amendment can’t be implemented unless the Master Plan is amended. By that rationale, APA could thwart the will of the people by refusing to amend the Master Plan. I wonder if those who take this position also would have taken the position that the Voting Rights Act couldn’t be implemented in the South unless Southern States first amended their laws? Or that women couldn’t exercise their right to vote after the US Constitution was amended to allow it until states amended their laws to allow it?
Colvin makes three logical points. But the law has answers for them.
First, getting title to land makes it a “sale” as far as the law is concerned, whether or not the price is more than the boilerplate token $10 that’s in every pre-printed land deed, and whether or not the “sale” is voluntary. So Colvin’s logic is of no effect.
Second, the majority rules; if a law passes, it’s the law. So Colvin is indisputably correct. Still, it often makes sense to take notice of whether there is popular support for a law, no matter how mandatory that law may be. Failure to notice the popular opposition can lead to rude surprises – such as persistent litigation in opposition, or even a repeal.
Third, the courts will sort out how to enforce the supremacy of the Constitution over laws and regulations. They can rule that a master plan is void to the extent it violates the constitution. But until they do, the master plan can be enforced for as long as the regulatory authorities dare to try enforcing it. So Colvin’s right, but a chaotic situation “on the ground” may exist anyway.
If that weren’t so, there would have been no need for the Voting Rights Act in the first place. In many places the voting rights of freed slaves and their descendants were ignored for generations, despite the very clear post-Civil-War amendments to the US Constitution. It’s far less chaotic and unfair to enact statutes and regulations that conform to, and carry out, Constitutional intent. Where there’s a will to stall NYCO’s plan, there will be tactics to do it. (And, if the plan is over-reaching what Prop5 intends, as I think it does, then those tactics may be necessary to stop the over-reaching until it’s decided how the mineral sampling will be done.)
The temporary permits (TRP) and the law allows for some pretty “un-benign” things on Forest Preserve land as well as the benign that Peter refers to. Although they are pretty uncommon. Two things that can be permitted are temporary road building and mineral exploration. I think given the amendment any type of litigation to stop or slow this would be a steep climb.
I agree with some of the comments above start looking for what we want to replace this in the FP. I thought there are already some parcels in mind?
Colvin says: “I thought one of the fundamental principles of our country is that the constitution is supreme–that this was what separated us from totalitarian dictatorships where constitutions are ignored.”
Yo Colvin.Remember the dispute surrounding the 2000 presidential election (Gore vs Bush) and how the Supreme Court justices put George W. Bush in power. The same Supreme Court justices that daddy Bush put into power?That went against the Constitution. Sounds totalitarian don’t it? How’d you feel about that?
Charlie S: Personally, I thought Bush v. Gore was a terrible decision–one of the worst in the nation’s history–and the country and environment paid dearly for it for the eight years of his awful presidency. But, I fail to see how the legal principles involved in that case have anything to do with the legal principles involved in voter approval of a constitutional amendment. Your point in citing that case seems to be that everybody should ignore the law. If so, that’s called anarchy, not totalitarianism.
Avon–regarding the “sale” issue,as I said we can quibble about the meaning of the amendment, but my point was that it was disingenuous and misleading for Mr. Bauer to say that the NYCO amendment authorized the ‘sale” of land, when what it authorized was in fact a more complex land exchange where the State will receive land of equal or greater value and acreage in the exchange (estimates are that the State will receive at least 1,000 acres for the 200 acres of lot 8) with a 1$ million floor value. The word “sale” is not included anywhere in the amendment. Telling those unfamiliar with the details of the amendment that the amendment authorizes a sale of Forest Preserve land is misleading at best, giving the misimpression that it is a straight cash for land transaction.
Regarding you second point, should we likewise take note that the forever wild clause passed in 1894 by a “narrow” margin of 56-44? I don’t see what difference it makes that the margin of victory was relatively close. It is part of our Constitution and has the same legal effect whether it passed by one vote or unanimously, and the State is therefore required to implement it. State agencies have no legal authority to ignore the will of the people as expressed in a constitutional amendment.
Your third point is similar to your second, where you say State agencies should “dare” to enforce the Master Plan until Courts tell them the Constitution is supreme. I don’t disagree that SLMP amendments could be done at some point to clear up any confusion, but I don’t think they NEED to be done, and in any event there might a land exchange in a year or two that in effect removes the parcel from State ownership and, therefore, any SLMP jurisdiction whatsoever. The SLMP applies only to State land: is it your position that if the legislature approves the land exchange and the deeds are exchanged that the SLMP continues to have jurisdiction over Lot 8 until the SLMP is amended?
There is a way to reverse course on this issue: a repealing constitutional amendment. Peter Bauer should try that if he is really serious about stopping this deal.
Please let us know when there is any opportunity for the public to weigh in on how the amendment is implemented.
Colvin says: “Charlie S: Personally, I thought Bush v. Gore was a terrible decision–one of the worst in the nation’s history–and the country and environment paid dearly for it for the eight years of his awful presidency. But, I fail to see how the legal principles involved in that case have anything to do with the legal principles involved in voter approval of a constitutional amendment.Your point in citing that case seems to be that everybody should ignore the law.”
I’m glad you feel that way Colvin.The first thing that came to mind when you brought up “one of the fundamental principles of our country is that the constitution is supreme” was the Bush vs Gore decision and so I jumped aboard. And while I’m here I think this deal with NYCO stinks.It may have been voter approved but it doesn’t mean it’s right. In general voters are ill-informed Colvin.
Charlie S–We agree that voters are generally ill-informed, especially when voting in New York on constitutional amendments. We will never know the degree to which they were informed on Prop 5. If every voter had understood all the details, would it have failed, or would it have passed by a wider margin? I don’t think we can assume the voters would have rejected it. In the final analysis, all that really matters is that it passed.