Earthjustice 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.