Tuesday, July 15, 2014

Earthjustice Obtains Court Order To Block NYCO Drilling

vernal poolEarthjustice has obtained a court order blocking NYCO Minerals from test drilling in the Jay Mountain Wilderness Area until the judge has a chance to hear oral arguments in Earthjustice’s lawsuit against NYCO and two state agencies.

State Supreme Court Justice Thomas Buchanan on Monday granted Earthjustice’s request for a temporary restraining order–providing the plaintiffs post a $10,000 bond to cover NYCO’s damages if Earthjustice loses the suit. NYCO could have begun work as early as this week and argued in court that delays would hurt the company financially.

Earthjustice attorney Deborah Goldberg said the bond was posted Wednesday afternoon.

Goldberg said the temporary order is good until August 22, when Buchanan will hear arguments on whether to grant a preliminary injunction against drilling that would remain in effect until the suit is finished.

“This is a way of maintaining the status quo [in the Wilderness Area] so there is no irreparable harm done before the judge makes a final decision,” Goldberg told Adirondack Almanack.

Earthjustice, a nonprofit organization that specializes in legal issues, is representing four environmental organizations: Adirondack Wild, Protect the Adirondacks, the Sierra Club, and the Atlantic States Legal Foundation. The law firm of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo is also working on the case pro bono.

In court papers filed Monday, the plaintiffs contend that the Adirondack Park Agency (APA) and state Department of Environmental Conservation (DEC) violated the law in giving NYCO permission to drill for wollastonite on a 200-acre parcel of the Jay Mountain Wilderness known as Lot 8.

Ordinarily, industrial activity is prohibited in the Forest Preserve, but in November the public voted to amend the state constitution to allow the state to give Lot 8 to NYCO in exchange for lands of equal or greater value. The amendment also empowers the state to authorize NYCO to conduct test drilling on Lot 8 to determine whether there is enough wollastonite–a mineral used in plastics and ceramics–to make the swap worthwhile. NYCO operates a wollastonite mine adjacent to Lot 8 and believes the mineral vein continues into the Forest Preserve.

In June, the Adirondack Park Agency amended the Jay Mountain Wilderness management plan to allow the drilling, but Earthjustice contends that a number of other laws must be followed before drilling can occur. These include the Adirondack Park State Land Master Plan, state Environmental Conservation Law, DEC regulations and policies, and the State Environmental Quality Review Act (SEQRA).

In ignoring these laws, Goldberg contends the state agencies are operating in a legal vacuum in its permitting and oversight of the test drilling. “They’re pretty much making it up as they go along,” she said.

Goldberg expressed shock that DEC decided that the test drilling would not require an environmental review under SEQRA. “The state determined that there is no potential for even one significant adverse environmental impact when they’re converting a Wilderness Area into an industrial mineral-sampling site,” she said.

DEC spokeswoman Emily DeSantis said of the lawsuit: “A majority of New Yorkers and two successive, separately elected legislatures amended the constitution to authorize the NYCO project.  DEC is implementing that constitutional amendment in a manner that is consistent with sound environmental policies and practices. Beyond that, we do not comment on pending litigation.”

APA spokesman Keith McKeever refused to comment on the case, but the agency’s counsel, James Townsend, has said that the constitutional amendment supersedes other laws.

John Brodt, a spokesman for NYCO, also declined to comment.

Photo courtesy of Adirondack Wild: A vernal pool 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.

11 Responses

  1. Dan Crane says:

    Best news ever!

    The DEC and APA should start doing their job to protect the Adirondacks and the environment instead of selling out to industry.

  2. Henry Kinosian says:

    I do not think that New York State should award a contract to acquire a half billion dollars of wollastonite without it even going out to bid. NYS should also receive royalties from the leasing of those mineral rights just as it does for all the other mineral extractions from state land in NYS. NYCO is a subsidiary of the S&B Group, a world-wide corporation with a presence in 75 countries on 5 continents. They are a fine company, but I do not think that they should benefit financially so extravagantly while local Adirondack interests receive only pennies on the dollar from this large mineral wealth. Even though the constitutional amendment allows a mining deal to take place, the details of such a mining contract have not yet been decided, and those detail are very important.

  3. disolusioned says:

    Sounds good on the surface but after the Protect VS APA case (ACR) decesion it seems the Park is open for business. State Laws are no longer laws, just guidlines.

  4. Pete Klein says:

    How does a California based outfit have standing in NYS?

    • Phil Brown says:

      Pete, Earthjustice is providing counsel for environmental groups based in NY. Not that it matters, but Eathjustice also operates in NYS. Deborah Goldberg is based in NYC.

  5. Dave Gibson says:

    Henry Kinosian raises interesting questions and topics that ought to have concerned our state’s political and environmental leadership long before the NYCO Proposition 5 Article XIV amendment was put to a popular vote framed as a straight “jobs” and “land exchange” proposal – when in fact Prop 5 resembled a lease of Forest Preserve far more than a straight land exchange. If viewed (and legislated) as a lease, then the policy issues and surrounding issues of the mineral reserve actual market value, royalties and economic fairness to state and local governments would have required far more legislative scrutiny and debate. New Yorkers don’t like being “ripped off” for their public lands, or deceived.

  6. Paul says:

    Makes sense to block the activity till they work this out, the wollastonite isn’t going anywhere.

    If it is proven in court that this was also unfounded like the lawsuit against the APA regarding ACR then I think it is time for these groups to rethink their strategy.

  7. Phil Brown says:

    I updated this to add a quote from DEC and to note that a law firm also is working pro bono on the environmentalists’ case.

  8. Phil Brown says:

    Another update: Earthjustice attorney Deborah Goldberg said the bond was posted Wednesday afternoon.

  9. Wallace Day says:

    Too bad all of this posturing is putting the already-too-few-well-paying private sector jobs in our region in jeaprody.

    Good think stuff like this wasn’t going on a 150 or more years ago, else the industrial revolution never would have taken place and we would all be living in caves.

    I,’m fairly confident the majority of real Adirondackers feel this same way, but most don’t have the cajoles to state oh they really feel.

  10. Ron says:

    I must agree with Wallace.. I say this as third generation NY-ADK. My grandfather worked on with the WPA on Whiteface as well as in logging for many years before the war. The Adirondacks are a living breathing thing this ALSO includes the people who call it home YEAR round. When we summer people all go home people here still need jobs to stay here. The park is not Disneyland OR Yosemite, nor will it EVER be 100 percent pristine. Yes the land was abused for a decade but this is now. The DEC and APA have been good steward’s now the people of New York have given permission to NYCO for a land swap. Once all parties agree and safeguards in place they MAY move forward with mining after this phase testing. The lawsuit is plain and simple a tactic to make it expensive and time consuming to NYCO, so they walk away. Period. (I have no connection to NYCO).

    No one wants environmental damage we love this place but not just for the wilderness also these small villages, the people and the life style. Outside of Lake George and Placid many villages/towns have populations that are shrinking and aging. We stay a week or two or visit for a season but we really don’t know the park. The park must have a healthy number of year round jobs and some of these do require area resources. The transformation of a few acres can be accommodated in the park without issue. I guarantee it’s far less damaging than the number of cars headed towards Lake Placid any weekend in the summer. It is easy to be on the high horse of saving mother nature but would it not be better mining here with standards and precautions than the destruction in Africa mines where small children mine rare earth metals?

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