Tuesday, June 3, 2014

Dave Gibson: Decision Time for Wilderness Mining

Canopy of large, sugar maples growing on Lot 8, Jay Mountain Wilderness. Photo by Dan Plumley, Adirondack WildIn April, NYS Department of Environmental Conservation and Adirondack Park Agency issued draft permits and unit management plan amendments respectively that would allow NYCO Minerals to conduct mineral exploration this summer on Lot 8 in the  Jay Mountain Wilderness.

The State would authorize such activity with only the most rudimentary information about what’s currently living and growing on Lot 8, no standards by which to judge the impacts of drilling on Wilderness character and resources, and no information about potential direct and indirect impacts of mineral testing beyond Lot 8.

Recall that Lot 8 was the subject of last fall’s constitutional amendment to Article XIV, New York’s Forever Wild clause. The amendment passed by 6 percentage points. What the voters thought was approved, based upon the express language on the ballot, was a simple land exchange with NYCO. Not so. What actually passed last November was the much longer legislative language not shared with the voters (but legally authorized nonetheless). That language may authorize the state to allow NYCO to test for minerals first, before proceeding with an exchange. If sufficient concentrations of wollastonite are found and if NYCO wishes to proceed, a land exchange with the State may move forward based upon the legislature’s determination that the State is receiving fair and equal value.

But the mineral testing would go on while the land is still publicly owned and still classified as Wilderness, and therein lies a novel and very big problem.

The State is poised to permit NYCO to test for minerals, meaning to cut down over 1,200 trees, build over 13,000 linear feet of access corridors, each one 15-20 feet wide, through the Wilderness to move in the drilling equipment, lighting, motors and gasoline, and construct up to 21 fifty foot square drilling pads where drills would go down some 500 feet to test for the mineral from 7 AM – 7 PM every day except Sundays and holidays for 4-8 months of exploration. Drilling additives of uncertain toxicity would be added to the water in the drill bore.  These are just some of the direct impacts to Wilderness and to its pools and streams. Indirectly, there could be many more. As to the impacts on the local roads and human communities in Lewis and environs, there could be still more.

No Baseline Studies

What might be the direct and indirect impacts of this industrial activity on flora and fauna? Do DEC and APA expect NYCO to undertake some baseline studies to determine what’s living and growing on the 200-acre Lot 8 now before issuing a permit in order to determine if the  company can avoid significant impacts to plant and wildlife habitats? What if NYCO decides not to undertake the land exchange. Has the State been given sufficient baseline information and data so that it can determine if NYCO has returned the site to a Wilderness condition after the mineral testing has concluded? What if NYCO proceeds with the exchange, builds a new open pit mine in the Wilderness and eventually all the mineral is exhausted. Will the State receive enough baseline information now to know how to direct NYCO to properly restore Lot 8 to a Wilderness condition in twenty years?

The short answer to all these questions is no. APA and DEC are not requiring NYCO to conduct any baseline studies before it receives a permit, regardless of the fact that this is a Wilderness area within the Adirondack Park. Nor does the State even acknowledge that some of the direct and indirect impacts of mineral testing on Lot 8 just might spill over into adjoining Wilderness land that was not the subject of the amendment.

This is all pretty strange because DEC would require any hydraulic fracturing (fracking) company outside of the Adirondack Park (far from any designated Wilderness) to do a lot of baseline studies, and in the case of fracking DEC acknowledges a great many off-site impacts. That Supplemental EIS that DEC prepared for hydraulic fracturing in 2012 states that “for each acre of forest directly cleared for well pads and infrastructure in New York, an additional 2.5 acres can be expected to be indirectly impacted. Interior forest bird species with restricted breeding habitats, such as the black-throated blue and cerulean warblers, might be highly impacted.” This is interesting. I just hiked across Lot 8 with my Adirondack Wild colleague Dan Plumley and found quite a few black-throated blue warblers breeding there. Yet, DEC expresses no concern for this bird on Lot 8, nor does it posit 2.5 acre habitat impacts beyond each acre impacted by a drill pad.

For hydraulic fracturers outside of the Adirondacks, DEC would require pre-drilling and post-construction site specific habitat and wildlife assessments within 150 or more acres of contiguous forest.  Lot 8 is 200-acres and is part of an 8,000 acre Jay Mountain Wilderness area in the globally significant, protected Adirondack Park. Yet DEC and APA are requiring no site specific habitat and wildlife assessments before, during or after NYCO conducts mineral exploration.

As far as the many large, older stand of trees which Adirondack Wild’s Dan Plumley has documented growing on Lot 8, DEC’s contention that no old-growth forests exist is based on a one-day survey last August in which precisely three trees were cored to determine their ages. The samplers admitted missing large sections of the Lot. As far as amphibians that are reproducing in vernal pools on the Lot, the State is relying on aerial photographs taken in the wintertime to identify these pools. Using aerial photography alone as the sole means to identify vernal pools in any season, much less the winter is fraught with the potential for error, a fact acknowledged in wetland sampling protocols established by the Army Corps of Engineers and other professional organizations. In our recent field visit, an amphibian expert identified a highly productive vernal pool used by breeding wood frogs, spotted salamanders and other species. The vernal pool sits within 150 feet of the NYCO open pit mine and could be destroyed directly or indirectly by mine expansion. Nobody from State has seems concerned.

On behalf of its clients, Earthjustice has just written a 22-page comment letter critiquing the APA’s wholly deficient Unit Management Plan amendment and the DEC’s equally deficient Temporary Revocable Permit. Among the exhibits at the end of the comment letter is one from Dr. Michael Klemens, Ph.D., a conservation biologist. Dr. Klemens points to a rock quarry expansion project in Connecticut where he and others were hired for three years to study the actual and potential impacts on amphibians and reptiles from the expansion. Not a tree was cut or a road built during these three years to ensure that the proposed mine expansion was conducted in a manner not damaging to the environment. “This stands in stark contrast to the 200 acres of the Jay Mountain Wilderness that have been so cursorily studied,” Dr. Klemens concludes.

Sloppy, Haphazard Review

From a legal standpoint, DEC and APA are in lockstep, arguing that the Article XIV vote last November makes the Adirondack Park State Land Master Plan Wilderness guidelines and State regulations prohibiting motorized access and industrial uses on Wilderness lands null and void. The voters “implicitly repealed” all of this non-constitutional law, the State contends. If that is the case and if Wilderness guidelines in the Master Plan are implicitly repealed, by what other standards will the APA determine if the amendment to the Jay Wilderness UMP is consistent with the Master Plan? Will the public now being asked to comment know what different standards might apply to this very novel problem that has arisen on Lot 8?  They will not, because the agencies have not yet amended the State Land Master Plan, as we believe they must do before authorizing mineral exploration. Thus far, APA and DEC are picking and choosing what laws and legal standards exist for Lot 8 in a highly arbitrary manner, and in further violation of the law the agencies are ignoring any off-lot impacts.

The State appears to sanction all of this sloppy, haphazard review under great time pressure. Why? NYCO Minerals has by their own admission at least 25 years of unexploited mineral reserves on their own lands in Lewis. NYCO has just applied to double their existing output on lands they own just south of their open pit. NYCO employees have no shortage of materials with which to work. The State has all the time it needs to establish professional baseline natural resource information and clear, protective standards for mineral exploration on Lot 8. The only pressure on the agencies to act fast and sloppily is political pressure.

Earthjustice and its clients (Adirondack Wild, Atlantic States Legal Foundation, Protect the Adirondacks ! and Sierra Club Atlantic Chapter) are not re-fighting last fall’s constitutional amendment. What we are fighting for are the large trees, forests, streams, plants, vernal pools and wildlife clearly living or migrating through Lot 8 Wilderness.  What we are fighting for are clear, transparent, protective standards by which to determine and avoid unnecessary environmental impacts from industrial activity in a Wilderness area in the Adirondack Park. What we are fighting against is hasty, sloppy, unprofessional, arbitrary analysis by State agencies legally charged with being a protective steward of the NYS Forest Preserve held in the public’s trust.

Photo:  A canopy of large sugar maples growing on Lot 8, in the Jay Mountain Wilderness. Photo by Dan Plumley, Adirondack Wild.

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David Gibson

Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest Preserve

During Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history.

Currently, Dave is managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.




16 Responses

  1. Hey. NYCO spent over $600K promoting that amendment. If we needed any more evidence of the corrupting power of money in politics, this is it.

  2. Bill Ingersoll Bill Ingersoll says:

    I am very interested to hear what ADK and the Adirondack Council have to say about the post-November legal developments regarding Lot 8. These groups told us that voting “yes” for Prop 5 on Election Day would in no way have any consequences or establish any precedents. But now that laws are being ignored and the state is taking the position that one vote can undo multiple layers of environmental protection, it’s important that these two groups be kept on the hot seat, rather than allowed to slink off into the shadows while others clean up their mess. Do Neil Woodworth and Willie Janeway still think that Prop 5 was a harmless one-off transaction, or are they starting to have doubts, perhaps?

    On a related note, I hope ADK spent their grant money well.

  3. Tim says:

    Bill–you imply there was some trade-off with ADK. I had heard something, too, through the grapevine. What exactly was that all about?

    • Bill Ingersoll Bill Ingersoll says:

      This is the sequence of events to which I refer:

      1) ADK voted to support NYCO in the summer of 2012. Executive director Neil Woodworth stated on record (conservation committee minutes May 2012) that ADK was hoping to curry favor with Betty Little.

      2) In December 2012, ADK received a grant of $221,073 to upgrade the High Peaks Information Center, nearby campground and related infrastructure from the North Country Regional Economic Development Council. (http://www.adirondackdailyenterprise.com/page/content.detail/id/534699/ADK-to-upgrade-Heart-Lake-facility.html)

      3) State Senator Betty Little serves on the North Country Regional Economic Development Council, and in that capacity she would have been in a position to review ADK’s grant request. (http://regionalcouncils.ny.gov/content/north-country) –

      I pointed this out back in December, to which ADK’s president John Gilewicz responded:

      “While Bill may recall that the influence of Betty Little was relevant to the Conservation Committee, at no time was it relevant to either the Executive Committee or the Board of Directors, who set ADK Policy. At no time was her supposed influence raised during our discussions at either the ExCom meetings or the BoD meeting at which the actions of the ExCom were endorsed by a vote of 28-2.”

      In other words, $200,000 was on the table, but this in no way influenced the leadership of the club in its decision to support NYCO. It was just coincidental that the grant application and NYCO vote occurred at around the same time.

  4. Jamie says:

    Dave, Nice article. Your last sentence seems to sum up the current trend at the APA post ACR debacle: hasty,sloppy,unprofessional, arbitrary analysis by state agencies.

  5. Ed Zahniser says:

    Thanks, Dave, for so clearly laying out the problems of this unfortunate situation. Wilderness LAWS have been enacted at both the federal and state levels for the very purpose of preventing ADMINISTRATIVE decisions — such as those seeming to be made here — that historically obliterated administratively designated wilderness and wild areas. The American people, acting through their elected representatives in their legislatures, have wanted the capacity to “govern” wilderness areas. Now it looks like these and many other laws are being ignored by administrative fiat. This is a sad back-sliding.

  6. Nature says:

    Dave,

    Can you provide links to the the Earth Justice 22 page letter and the DEC documents you reference in this story? I was not aware that hydrofracking was taking place on these lands. I was also not aware that the lands were supposed to returned to a wilderness condition after they had been mined. I thought that the land exchange was intended to make up for the loss of 200 acres?

    And (please forgive me) but it sounds to me like you are “re-fighting” last year’s constitutional amendment.

  7. Tony Goodwin Tony Goodwin says:

    There was no way that all of the impacts of this amendment could have been included in the ballot referendum, so perhaps some of the votes “for” did not realize the 80 acres of state land would be so disrupted just in the exploration phase.

    Nevertheless, I stand by my earlier statements that this amendment’s passage was an important exception that will both trade a tiny bit of Forest Preserve for much more new Forest Preserve and keep the Forest Preserve “current” by showing that it can be changed when necessary.

    It is my considered opinion that such changes have been important in keeping the Forest Preserve intact. I maintain that if the Forest Preserve as included in the State Constitution in 1895 had never been changes at all, it would long ago have been repealed.

    I don’t see any new wave of similar amendments coming along on the heels of this amendment, and we can deal with them on their own terms at the time. So let’s just accept that the regulatory agencies must do what the amendment requires and move on to the the next controversy.

  8. Paul M. Kotch says:

    The prostitution of the Adirondacks has got to stop. The people are being duped. Some of the “environmental organizations” are obviously in the pockets of business. It’s about time people stop watching Miley Cyrus’ every move and start getting angry and motivated. There was a time when people went to war over land exploitation and taxes. Now most shrug their shoulders and go back to “Keeping Up With The Kardashians”. Thanks to those who bring these truths to light.

  9. Dave Gibson says:

    Nature, I will send you the letter as you ask and links to the DEC documents.

    No high volume horizontal hydrofracking or HVHF is happening anywhere in the ADirondacks, or elsewhere. GOv Cuomo has put that on hold. My point was that the DEC EIS on HVHF was far superior to the documents for Lot 8 in the Jay Mountain Wilderness in terms of required pre and post construction environmental studies. Proposed industrial activity on Forest Preserve-Wilderness in the Adk or Catskill Parks should have the highest standards of environmental documentation and review, and that is what the laws intend. DEC and APA should respect these laws.

  10. Colvin says:

    An interesting fact to keep in mind: The NYCO amendment passed by 6.4 percent (53.2 % to 46.8%), or 1,276,592 to 1,122,05, but the margin of victory of the constitutional amendment giving protection to the Forest Preserve in 1894 wasn’t much different, with 55.6% voting in favor and 44.4% opposed (410,797 for and 327,402 against). Thus, only 2.4% more voters cast their ballots in favor of the forever wild clause in 1894 than voted in favor of the NYCO amendment last year. (In 1894, The forever wild clause and several other amendments were lumped together in one measure on the ballot).

    It is undoubtedly true that most who voted in favor of the NYCO amendment never read the amendment and didn’t know the details of what they were voting on;however, it is also undoubtedly true that most of those who voted against the amendment never read the amendment and didn’t know the details of what they were voting on. And, as is the case in all elections, plenty of misinformation about the proposed amendment was thrown around by both sides.

  11. Bill Ingersoll Bill Ingersoll says:

    November’s results for Prop 5 were actually split 3 ways:

    Yes: 1,276,592 (39%)
    No: 1,122,055 (34%)
    Blank: 879,267 (27%)

    The last category consists of people who did cast ballots, but did not select any option for Prop 5.

    Interpret this as you wish, but this is one bit of data that I have not yet seen in any of the discussions about the NYCO vote results.

    • Colvin says:

      An interesting fact, Bill. Spin doctors can have a field day with that statistic: those opposed to the amendment can say that only 39% of those who went to the polls that day voted in favor of the amendment, while those in favor of the amendment can say that only 34% of those who went to the polls that day voted against the amendment…

    • Bill Ingersoll Bill Ingersoll says:

      …or that while 39% voted in favor, 61% did not.

      As I said, interpret as you wish. But that third figure seems important, even though it has not been discussed very much.

  12. Henrietta Jordan says:

    I tend to believe that many voters act as I do: if I understand a ballot question, I vote “yea” or “nay.” But if I don’t, I leave the ballot line blank.

    Of course, with the NYCO mining question, I voted “no” because I read the Almanack’s articles on the subject.

    Given the saturation of media ads in favor of the proposal, particularly downstate, I’m a little surprised that so many people decided not to vote on it. Which means that they hadn’t heard about the issue or else were not persuaded by what they did here.

    We shouldn’t give up just because an initiative fails at the polls or in the courts. That’s one of the lessons of the Dred Scott decision.

  13. Henrietta Jordan says:

    “did hear,” that is.