Monday, July 14, 2014

Groups File Legal Challenge In NYCO Wilderness Mining

View of NYCO from Mt FayFour environmental organizations filed a lawsuit Friday challenging the State’s approval of mineral exploration on 200-acres of publicly-owned Adirondack Forest Preserve Wilderness known as “Lot 8” in Essex County.

The organizations are Adirondack Wild: Friends of the Forest Preserve, Atlantic States Legal Foundation, Protect the Adirondacks! Inc., and Sierra Club, and they are represented by the non-profit law firm, Earthjustice, and pro bono co-counsel Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

According to a notice sent to the media the Article 78 lawsuit seeks to stop mineral exploration in the Jay Mountain Wilderness “until the State complies with all applicable laws.” It was filed in Albany County Supreme Court against the NYS Department of Environmental Conservation (DEC) and its Commissioner, the NYS Adirondack Park Agency (APA) and its Chairwoman, and NYCO Minerals, Inc. The groups contend that a constitutional amendment (Proposition 5) approved by the voters last November suspended one layer of protection for Lot 8, but all other legal requirements protective of Wilderness areas remain in full force and effect.

The groups released the following to the press:

The State agencies have maintained that the amendment “implicitly repealed” all such laws and regulations affecting Lot 8. In June, the APA determined that an amendment of the Jay Mountain Wilderness Unit Management Plan (“UMP”) authorizing mineral exploration conforms with State Land Master Plan Wilderness guidelines. DEC has determined that exploratory drilling will have no significant adverse impacts, granted final approval of the UMP amendment, and issued a final temporary revocable permit (“TRP’) authorizing the mineral sampling operations. Tree cutting and other physical disturbance may begin as soon as July 16.

“The State’s theory of implicit repeal leaves APA and DEC operating in a complete legal vacuum,” said lead attorney Deborah Goldberg of Earthjustice. “They agencies now are violating numerous laws, are ignoring their own internal procedures, and generally are proceeding in an entirely arbitrary and ad hoc manner.”

According to the terms of the TRP, mineral sampling by NYCO Minerals will require the destruction of up to 1,254 trees, the construction of corridors in the forest for vehicular access, and installation of up to 21 drilling pads, with resulting noise, light pollution, and air emissions from industrial equipment. Drilling would continue up to eight months.

“The agencies claim that industrial drilling does not carry the potential for even one significant adverse environmental impact, even though it will take place in a completely wild forest sheltering sensitive plants, including two protected orchid species,” Goldberg added. She also noted that the DEC issued a TRP for a boundary survey of Lot 8 last February, which resulted in the cutting of vegetation within the Lot 8 Wilderness, and withheld that information from the organizations.

“Basically, what we are saying to DEC and APA is ‘follow the law,’ ” said Dan Plumley, Partner with Adirondack Wild: Friends of the Forest Preserve. “It is a flagrant legal violation for the agencies to allow mineral exploration unless and until the full range of laws protecting our wilderness areas from commercial exploitation and industrial uses have been amended.”

“The passage of Proposition 5 was based on misleading and incomplete legislation. It left many major issues to be resolved after the vote about how the Forest Preserve is to be mined. We’re working to hold State agencies accountable to ensure that ecological damage to the Forest Preserve is minimized,” said Peter Bauer, Executive Director of Protect the Adirondacks!

Samuel H. Sage, President, Atlantic States Legal Foundation, said that “The narrow passage of Proposition 5 may have removed the “forever wild’ protection from the Forest Preserve lot in the Jay Mountain Wilderness Area. However, there remain many other requirements in law that have not been amended or repealed and are fully in effect.”

“Concern still exists among Sierra Club members that the text of the ballot initiative did not accurately reflect the actual language of the constitutional amendment,” said Roger Downs, Conservation Director of the Sierra Club Atlantic Chapter. “Accordingly, we want to be exceedingly careful that New York State laws and regulations are closely adhered to as this process moves forward.”

“The road building, tree cutting, and drilling involved in mineral exploration will undoubtedly cause great disturbance to Lot 8 and beyond it,” added Adirondack Wild’s David Gibson. “In addition, the groups have carefully documented that Lot 8 is rich in older growth trees and varied wildlife habitats that demand great care and careful assessment prior to any mineral sampling operations.”

The groups note that there is no reason for the State to rush to judgment with respect to mineral sampling on Lot 8. Recently, APA held a hearing on a NYCO application to expand its existing Lewis mine by approximately 50 percent, and NYCO owns another permitted mine two miles away at Oak Hill that should be ready for full-scale mining by 2016. The company itself estimates these mines have at least 25 years of mineral reserves.

All of the Adirondack Almanack‘s stories about NYCO’s plan to mine the Jay Mountain Wilderness can be found here.

Photo: View of the current NYCO mine and proposed expansion area from Mt Fay (courtesy Bill Ingersoll).

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Community news stories come from press releases and other notices from organizations, businesses, state agencies and other groups. Submit your contributions to Almanack Editor Melissa Hart at

One Response

  1. Flabbergasted says:

    I’m flabbergsted! And APA approved the UMP amendment unanimously under these conditions and DEC rubber-stamped it and issued the TRP, all with only minor changes from the drafts issued in April. Their justification is that the Article 14 amendment “implicitly” removed all need to obey existing State laws and regulations while test drilling is going on in the Forest Preserve Wilderness of Lot 8. And the SEQRA finding was that there are no significant impacts. This is looneytunes. It is extremely bad precedent for future management of the Forest Preserve. This is seat-of-the-pants management.

    The real problem here is that there was no implementing legislation with the amendment to provide direction to the process. If the groups win this lawsuit, may the State needs to go back and do that?

    The more fundamental problem was with the amendment itself, which won by only three percentage points, 53-47. NYCO’s public relations campaign, costing three-quarters of a million dollars we are told,said that that if NYCO did not get Lot 8 they would be forced to pull out, with a loss of 105 jobs, a lot of taxes and a big hole in the local economy. This turned out to be not true.NYCO withheld the rest of the story from the public. Apart from several years left in the existing mine, they planned to expand it by 50% and also. after years of preparation, had the Oak Hill mine nearly ready for full scale mining. They waited until this spring before moving ahead with permit applications for these projects. The point is that they never intended to leave. Nor would they walk away from their state-of-the-art processing plant in Willsboro.

    The i,500 acres of NYCO land to be given to the State in payment for Lot 8 is no bargain either. It has no value as an essential addition to the Jay Mt. Wilderness. Meanwhile, whether on purpose or not it is clear that DEC did a slipshod job of evaluating Lot 8 as proven by work done by Adirondack Wild since the vote last November.

    DEC and APA have been on automatic in all of this from the beginning, never refuting any of the propaganda coming out of NYCO and its PR firm, Behan Communications.It was a done deal for them from the beginning once NYCO made it all about jobs. That’s the mantra of the Cuomo Administration. They split the environmental groups and went ahead.

    Pure and simple, NYCO bought Lot 8 for its own commercial benefit. As we know in hindsight, there were no compelling State purposes for the amendment. Unless the “forever wild” provision can be amended to plug this hole, the Forest Preserve is up for grabs to the highest bidder.

    This is the wave of the future

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