Wednesday, June 11, 2014

Neil Woodworth: ADK Urges State to Comply With Laws

NYCO-Minerals-Wollastonite-Mine-Nancie-B-PhotoOn May 30, 2014 the Adirondack Mountain Club’s (ADK) Advocacy Office in Albany submitted comments in response to the Opportunity to Comment posted by both the Department of Environmental Conservation (DEC) and the Adirondack Park Agency (APA) on DEC’s proposed amendment to the Jay Mountain Wilderness Unit Management Plan (JMUMP) and to the Draft Temporary Revocable Permit (TRP) for NYCO Minerals, Inc. to conduct exploratory drilling on Lot 8 in the Jay Mountain Wilderness.

It is the position of DEC that the Amendment to the Jay Mountain Wilderness and the Draft TRP “…is authorized by a Constitutional Amendment to Article 14 approved by the voters on November 5, 2013 to allow NYCO to engage in mineral sampling on Lot 8. The TRP sets terms and conditions for mineral exploration activities and site mitigation and restoration.”

ADK strongly disagrees with DEC’s current position that exploratory drilling can be legally authorized simply by approval of an amendment of the JMWUMP and by issuance of a TRP. Although ADK supports the Constitutional Amendment that allows NYCO Minerals to continue their mining operation at the Seventy Road site while increasing the acreage of the Jay Mountain Wilderness and adding important recreational access points to the Wilderness Area, we have always insisted that it follow the letter and intent of existing law. Both DEC and the APA admit that the 200 acres of Lot 8 is still Forest Preserve and remains part of the Jay Mountain Wilderness and therefore remains subject to the provisions of the Adirondack Park State Land Master Plan (APSLMP).

The DEC argues that the Proposition 5 constitutional amendment implicitly revokes Section 816 of the Executive Law which authorizes the APSLMP and the applicable provisions of the ECL and Title 6 NYCRR Part 190 et seq., by means of the following provision of Proposition 5:

“Notwithstanding the foregoing provision, 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 contained in Lot 8.”

DEC cites the case of Durante v. Evans as support for its “implicit revocation” or revocation by implication theory, which means that the constitutional amendment revokes existing law. However, Durante v. Evans is expressly distinguishable from the present situation, as the circumstances in both cases are substantially different. A key difference in this situation from the Durante v. Evans case is the use of the word “may” versus the word “shall.” In the Lot 8 situation the word “may” is used in relation to allowing the mineral sampling, in the Durante v. Evans case the words “shall” and “must” are used in relation to decision making. ADK does not believe the law supports revocation by implication when the word “may’ is used. Revocation by implication is heavily disfavored by the courts. Read ADK’s full legal analysis here.

In the case of most, if not all previous “forever wild” land exchange constitutional amendments, the Forest Preserve parcel was transferred out of the Forest Preserve before activities were permitted on the parcel that would be unlawful under the various laws protecting Adirondack Forest Preserve. Usually the express terms under which these land exchanges were to be accomplished and authorized were spelled out in the enabling legislation.

Neither was done in the unusual situation of Proposition 5, the NYCO Minerals constitutional amendment. Lot 8 currently remains in the Forest Preserve and, under DEC and APA’s current plan, Lot 8 will be Forest Preserve at the time of the mineral sampling operation. No enabling legislation was passed by the legislature at the time that Proposition 5 was approved for the November ballot and none has been passed since. Thus no enabling legislation authorizes proceeding with mineral sampling without the application of the statutes, regulations and policies that currently apply to protect Lot 8.

Appropriate enabling legislation passed by the State Legislature and signed by the Governor is, in ADK’s opinion, legally necessary to establish that the mineral sampling operations on Lot 8 are authorized under appropriate protections and precautions, and that the APSLMP, the ECL and 6 NYCRR Part 190 et seq., do not apply to Lot 8 to preclude the mineral sampling operation.

This is a matter to be resolved by enabling legislation or a judicial ruling where a judge, and not APA commissioners, resolves the purely legal issue of repeal/revocation by implication. NYCO has submitted plans to expand the existing Seventy Road mine by 50% and plans to commence full scale mining at its nearby Oak Hill mine. ADK hopes that the state will do the right thing by resolving these legal issues by enabling legislation or obtaining a ruling from a judge. Getting the NYCO mineral sampling controversy resolved in accordance with a clear and unequivocal enabling statute or judicial ruling has clear benefits and great implications for the fate of future constitutional amendments, and for organizations like ADK that may be asked to support them.

You can read ADK’s full comment letter in the pdf here.

This essay was first published at the Adirondack Mountain Club’s blog Today @ADK.

Photo: NYCO’s wollastonite mine which plans to be extended into the Jay Mountain Wilderness. Photo by Nancie Battaglia.

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Neil Woodworth

Neil Woodworth, Executive Director and Counsel of the Adirondack Mountain Club (ADK) works directly with the Executive Chamber and Legislature in New York, and Congress to advocate for the acquisition, preservation and wise management of the Adirondack and Catskill Forest Preserves, New York’s state parks and for public lands and open space throughout New York.

Woodworth is an environmental lawyer who has served in many official capacities in conservation affairs, including service on the Congressional Northern Forest Lands Council, the Empire State Task Force for Land and Water Conservation Funding, New York Open Space Advisory committee, the New York Forest Preserve Advisory Committee, and the Governor's Task Force on the Adirondack Park Agency.

He has worked on a variety of legal cases involving wilderness protection of the Adirondack and Catskill Forest Preserve, public navigation rights on rivers (Moose River case) and has represented ADK in lawsuits against the U.S. Environmental Protection Agency to successfully challenge attempts by the Bush/Cheney era EPA to the New Source Review acid deposition and MACT mercury control prevention provisions of the Clean Air Act.

With John Caffry, he represented ADK in the Balsam Lake Anglers Club, Adirondack League Club and Lows Lake cases as well as cases involving the nature and extent of snowmobiling in the Adirondack Forest Preserve. He has been involved in the analysis and advocacy of every proposed Article 14, section 1 amendment from 1982 to the present day.

Mr. Woodworth spent ten years as a trial and litigation lawyer before assuming his duties with the Adirondack Mountain Club in 1989. He is a graduate of Hobart College (1975) and Albany Law School of Union University (1978).




25 Responses

  1. Daniel N says:

    No job Neil/ADK! Those of us who understood the intention of the Forever Wild article XIV (…shall not be EXCHANGED…) and voted against this new that this would open up a can of worms. But, as you guys, the ADK, [REDACTED – SLANDEROUS] and cared not for preserving the constitution’s CLEAR intentions, and encouraging your constituency to approve this proposition, you’ve now made yourself responsible for what is quickly becoming an environmental tragedy.

    I had already planned (and earmarked personal funds) to purchase a lifetime membership to the ADK later last year (as my membership was expiring). However, I quickly withdrew that idea and all future planned support for a club who blatantly ignored the constitution.

    Let me ask you, Neil….overall, this was supposed to be a win for the Adirondacks, as we are likely to obtain an additional total amount of wilderness land through this deal. If a mining company approached the state, and said: “We’d like to mine under Avalanche Lake and Lake Colden. In exchange for the development rights, we’ll donate 10,000 acres to the forest preserve”. What would you do? Is one portion of the forest preserve more ecological important or beautiful than another? Perhaps. Is any one part more or less protected by the intent of Article XIV? No.

    Your organization screwed up big time with its priorities on this one, and now you see what’s happening.

    Like others already have, I call for a boycott of those organizations which supported Proposition 5.

    • Bill Ingersoll Bill Ingersoll says:

      ^^^ I like this guy!

      Of course, ADK could have helped avoid the current situation that they are now so upset over by opposing Prop 5 rather than endorsing it. Did ADK really think that engaging in a business transaction with a corporation would be a clean, non-controversial action that they would be able to control? This is the wrong time to be indignant about the consequences of your own advocacy, ADK.

      ADK insisted multiple times in the weeks leading up to the vote that passage of Prop 5 would be a one-off situation that would not set any precedents. In a constitutional sense, perhaps, but here we are 7 months later with the DEC and APA telling us that a single referendum authorizing a land exchange–and approved by only 39% of the state’s voters–implicitly overruled every relevant environmental protection on the books.

      This makes a mockery of every conservation success in the Adirondacks since 1885. Wilderness? Overruled. SEQR? Overruled.

      This is ADK’s legacy. ADK in 2014 is an impotent organization incapable of guiding the events it helped set in motion. The club should get out of conservation and stick to stewardship.

      If you want to join a hiking club and meet new friends, get a Meetup account. It’s cheaper, and you’ll get more out of it.

  2. Hawthorn says:

    Makes me worried about what is going to go down with regard to fracking away wild areas with much less protection than the Adirondacks have, at least on paper.

  3. Tony Goodwin Tony Goodwin says:

    First of all, let’s leave tracking out of this debate.

    As for adhering to the law, I agree with the DEC’s interpretation of the intent of the enabling legislation and the constitutional amendment. This land swap is very different from any previous land swap, so there is no clear precedent for what needs to happen to follow through on the now voter-approved amendment. In other circumstances, the state should receive the new land and then transfer the parcel out of the Forest Preserve before there is any private activity on the land. Here, however, the amount of new land to be added to the Forest Preserve is dependent on the estimated value of the wollastonite to be mined – hence the need to determine that value by drilling before the land exchange. What if they discover the “mother lode” and we get twice as much new Forest Preserve as currently envisioned?

    On the other hand, if the drilling doesn’t reveal a commercial quantity, then why give up the entire 200 acres when only a small portion of that 200 acres will actually be compromised by the exploration. In that case the State still receives new land while maintaining ownership of the 200 acres. Many parcels of current Forest Preserve were badly damaged when the state took title but have recovered nicely over time.

    If you look back, maybe this amendment is not the only one that didn’t clearly specify every action that would be taken to implement it. I am quite sure that the amendments permitting the construction of ski areas on Forest Preserve only dealt with the width and length of the trails to be cut. There was no mention of lifts being constructed.

    • Bill Ingersoll Bill Ingersoll says:

      Well no, the value of the land exchange is NOT tied to the value of the wollastonite in the ground–it’s tied to the value of the land itself. So if NYCO finds their hypothetical “mother lode” on just one acre of Lot 8, then the Forest Preserve gets just one acre of new land in exchange–maybe three, to make it a one-for-three exchange. NYCO keeps their profits, and is not obligated to share them as suggested above by buying more land with every dollar they earn.

      As for the skiing amendments, what Tony claims is true… of the Whiteface amendment in 1941. The language for that amendment was written by a skiing enthusiast on the back of a napkin and was never refined. However, the lesson was quickly learned. When the Belleayre-Gore amendment passed in 1947, its authors did include provisions for facilities other than the ski trails, including lifts and lodges. Therefore the successful passage of the Whiteface amendment directly inspired the successful passage of the Belleayre-Gore amendment, as admitted in one of ADK’s own publications, “The Conservationist’s Handbook.” It was not until the 1960s, a quarter-century after Whiteface, that the voters shot down an amendment for more ski areas in the Forest Preserve.

  4. Tim says:

    Good point, Tony. However, I seriously doubt NYCO would have gone to all that trouble if they weren’t confident of success. Ultimately, it will become an obscene strip mine.
    It seems disingenuous to quibble about HOW the land is raped.

  5. Paul says:

    I would imagine that the state’s legal people considered these things prior to the amendment. But it probably makes sense to go ahead and get a judge to review this make sure things are as the state says they are as far as the legality of how it is being implemented and then move on. These things just add additional cost for the tax payers but it is something that should probably be done.

  6. Bob Meyer says:

    Neil & ADK should never have supported this amendment. how could an organization like ADK come to the conclusion that swapping F.P. land with and for commercial enterprise be anything but bad for the integrity of the F.P. ? Answer that one will you?
    i seriously considered dropping my 50+ year membership in ADK. 🙁

  7. Paul says:

    It is too bad that we have these different environmental organizations that have done a lot of good for the Adirondacks over the years arguing about the implementation of this constitutional amendment approved by the citizens of the state. Is this really worth jeopardizing all that these groups have worked for?

    In the end this is going forward one way or the other. The state will get more land to add to the forest preserve than it lost and the only negative consequences will be to these organizations doing the arguing.

    Once it is time to make the swap I say we ask for a parcel that is not next to a strip mine. But maybe that is what we will get. As long as it is bigger than what we lost it seems to make sense to me.

  8. Daniel N says:

    Bill:

    I’m in your meetup group, but haven’t yet had opportunity to attend. I’m also on the forums, and we’ve discussed this (handle = TBPDPTI).

    This is a completely asinine attempt by Neil to gain support for what is backfiring. You know what I’d like to see? A very public newsconference by Neil (through Willie Janeway in their too) in which he (they) announce that he was (they were) wrong, are stepping down in shame, and that, prior to leaving, his (their) final actions as leader are directing the clubs to pursue legal action to undo what they’ve caused.

  9. Tony Goodwin Tony Goodwin says:

    The quote below from the NYS Board of Elections abstract of the proposed amendment certainly indicates that the testing was for the purpose of determining the value that NYCO would have to provide to NYS for the right to acquire this property.

    I’m not surprised that later ski area amendments did mention lifts, but since Forest Preserve defenders will go back to 1895 for precedents I figured a 1940 precedent for lifts built without specific authorization from a voter-approved amendment was still relevant.

    The proposed amendment also would allow NYCO Minerals to test to determine the quantity
    and quality of the mineral to be mined on the land to be exchanged before the exchange occurs. It
    would require NYCO Minerals to give the State its test results so that the State can use them to
    determine the value of the land to be conveyed to NYCO Minerals. The proposed amendment also
    would require that if, after testing, NYCO Minerals does not want the forest preserve land, NYCO
    Minerals still must give the State at least the same amount of land of at least the same value of the land
    that was disturbed by the testing. This land would be incorporated into the forest preserve.

  10. Bill Ingersoll Bill Ingersoll says:

    What you quoted was the BoE’s interpretation of the amendment. Here’s what appeared on the actual ballot when you voted “yes” last year:

    “The proposed amendment to section 1 of article 14 of the Constitution would authorize the Legislature to convey forest preserve land located in the town of Lewis, Essex County, to NYCO Minerals, a private company that plans on expanding an existing mine that adjoins the forest preserve land. In exchange, NYCO Minerals would give the State at least the same amount of land of at least the same value, with a minimum assessed value of $1 million, to be added to the forest preserve. When NYCO Minerals finishes mining, it would restore the condition of the land and return it to the forest preserve. Shall the proposed amendment be approved?”

    So whereas you’re envisioning some profit-sharing scheme where NYCO keeps giving land to the state for every ton of wollastonite they harvest, what you **actually** voted to approve was an even exchange of “at least the same amount of land of at least the same value.” So if NYCO finds wollastonite on one acre of land, we get at least one acre of land in exchange. “Value” is more likely tied to the tax assessment of the land, not its mineral content.

    • Pete Nelson Pete Nelson says:

      Bill:

      As you know I opposed the NYCO Amendment. But Tony is right above. Here is the actual legal language -not abstract – of Amendment 5, now part of the State constitution:

      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 land 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.

      As others have pointed out the current legal argument over what the State can and cannot do in authorizing exploratory drilling centers on the word “may” in the first sentence. “May” implies that the state can elect to follow the current body of law in order to permit NYCO to test drill. But that in turn implies that the State must actually follow the existing body of law. The word is not “shall,” which would essentially order the State do do so, superseding current law.

      Pete

      • Paul says:

        “The word is not “shall,” which would essentially order the State do do so, superseding current law. ”

        I looked at the ADK letter and thought about this. Pete, why do you see “shall” as they must do it? I guess maybe in a biblical sense there isn’t supposed to be a choice when we see “shall”!

        But it seems like in the current vernacular there is still a choice when we hear “shall”.

        But I guess from a legal perspective shall is a command.

        With all that said I think a judge (like ADK is suggesting) can say that with the word “may” and the fact that the citizenry voted to allow it to happen then the state can do whatever it needs to do to make it happen.

      • Bill Ingersoll Bill Ingersoll says:

        Well, no, they’re not talking about the value of the wollastonite driving the value of the land exchange.

        Think about it: if NYCO found $100 million worth of mineral in Lot 8, and needed to exchange $100 million worth of land for the right to harvest it, they would have no motivation to proceed.

        The “value” mentioned by the amendment refers to the property value of the land, not the mineral content. It means that the state can’t accept a 200-acre junkyard in exchange for giving up a forested property.

        What Tony Goodwin seems to think is that Prop 5 is some kind of profit-sharing scheme–for every ton of wollastonite that NYCO digs up, they will keep giving land to the state. Read his original comment, not his modified one.

    • Bill Ingersoll Bill Inhersoll says:

      Well no, this doesn’t prove that “value” refers to the mineral content of the land either. “Value” refers to surface assessments, such as the value of the timber on the land, the school district it’s located in, whether the property is developed, etc–in other words, what a tax assessor would see.

      Think about it: if Lot 8 contained $100 million worth of wollastonite, and Prop 5 compelled NYCO to buy $100 million worth of land if they wanted to harvest it, then what would the incentive be for the company?

      When land exchange amendments talk of acquiring lands of “equal value,” what they mean is acquiring other forested properties, as opposed to NYCO trading some old junkyard in exchange for Lot 8.

    • Paul says:

      But isn’t the minimum value 1 million dollars? That will easily purchase more than 200 acres of similar land to add to the Forest Preserve. Even an acre of waterfront land on Upper St. Regis lake isn’t worth that much. At the going rate of 400 per acre for timberland that is 2500 acres of land or 10 times what we are losing?

  11. Colvin says:

    Suppose a constitutional amendment had been adopted stating that “the State may remove the ski areas from Gore, Whiteface and Belleayre mountains?” I bet the environmental groups would argue very strongly that the amendment was self-implementing, “may” means “shall,” the State must forthwith remove the ski areas, and no SLMP or UMP amendment or implementing legislation was required.

    I read all of the blogs on the NYCO amendment last fall, before the vote, that were in the Adirondack Almanack, and I don’t remember anyone ever stating that legislation or reclassification would be needed before exploratory drilling could occur.

    If the position that implementing legislation and UMP/SLMP amendments are necessary is correct, then the logical conclusion is that the legislature and State agencies can thwart implementation of the amendment merely by neglecting to act. I don’t think there is anything in the legislative history of the amendment showing an intent to give the legislature, APA and DEC this power.

  12. Hawthorn says:

    The way I read it NYCO gets to conduct the sampling operations essentially for free, and only if there is something worth mining the state may, or may not, convey the rights to the land in exchange for some other property worth at least $1 million. If no minerals are found the state (all of us) could end up with nothing more than the 200-acre junkyard that Bill mentioned–the $1 million value only pertains to the situation if something is found and NYCO wants to go ahead with the swap, otherwise they just have to provide some replacement land, acre for acre, for any areas disturbed by the sampling. Lousy deal for that state.

    • Paul says:

      I am surprised that they cannot horizontally drill into this area and see if the stuff is there? Perhaps that’s cost prohibitive?

      • dave says:

        “Drainage, Eli! I drink your milkshake!!”

        Sorry, I’m incapable of passing up an opportunity to quote from ‘There Will Be blood’ – and horizontal drilling reminded me of that scene.

        Carry on.

    • Paul says:

      I think the impacts of the exploratory drilling are being overblown. It would not leave a “junkyard”. Many other current parcels of Forest Preserve land have been basically denuded of timber and crisscrossed with roads in the past. They are all beautiful parcels now.

  13. This discussion illustrates perfectly that prop 5 was ineptly written and that ADK and the Council made a huge mistake when they decided to endorse it. When we’re talking about amending the constitution, there should be every effort to eliminate ambiguity. (I know: anything involving language by definition is to some extent ambiguous, but for pete’s sake, you should do the best you can!) The fact that there was uncertainty is why I voted against it and why I remain profoundly disappointed in the failure of ADK and the Council to take seriously their responsibility to defend Article XIV. I am not automatically opposed to swapping land from the Forest Preserve to serve a demonstrable public good. I AM automatically opposed when a swap is proposed that doesn’t tell me precisely what we get in return or how the swap will proceed. Neil doesn’t say whether ADK is prepared to litigate if the state proceeds without the clarification he hopes for. Will it?

  14. Pete Nelson Pete Nelson says:

    Not to mention that the intersection of corporate good with “a demonstrable public good” is usually fraught with myriad, often hidden difficulties…

  15. Hawthorn says:

    The law as written had nothing to do with promoting “the public good.” It was written by politicians to appease political interests and was therefore deliberately ambiguous and meant to obscure its real intent, which was political. For example, note all the press around saving jobs–where in the law is there any mention of what jobs are saved or guaranteed? There isn’t a single job protected in the law as written. It’s basically a law promoting a private business and helping it make a profit, while the public may get something in return, but only if there is a profit to be made.

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