Environmental activists seeking to prevent NYCO Minerals from drilling in the Jay Mountain Wilderness are trying to thwart the will of the electorate, according to court papers filed by the state attorney general’s office.
Assistant Attorney General Susan Taylor argues that NYCO should be allowed to drill for wollastonite in the state-owned Forest Preserve despite a lawsuit filed by Adirondack Wild, Protect the Adirondacks, Sierra Club, and Atlantic States Legal Foundation.
In November 2013, voters approved an amendment to Article 14 of the state constitution to permit NYCO to acquire a 200-acre parcel known as Lot 8 in the Jay Mountain Wilderness in exchange for land of equal or greater value. Known as Proposition 5, the amendment authorized NYCO to conduct test bores to ensure that Lot 8 contains enough wollastonite—a mineral used in plastics and ceramics—to make the land swap worthwhile.
“After losing a hard-fought political battle over the Constitutional amendment, petitioners now seek to continue the war in the courthouse,” Taylor writes in papers filed Friday in New York State Supreme Court.
“The ‘principle’ that petitioners repudiate is the choice made by the voters in November 2013,” Taylor says.
NYCO makes a similar claim in its legal papers: “Petitioners’ objections to the substance of the 2013 Amendment—which were already voiced, considered, and rejected during the Amendment process—provide no basis for invalidating the State’s decision to exercise precisely the authority conveyed to it by the voters through their approval of the 2013 Amendment.”
In July, the four environmental groups obtained a temporary court order against drilling after the state Department of Environmental Conservation issued NYCO a permit for the mineral sampling. Arguments are scheduled for next month on whether the drilling ban should be extended pending the resolution of the lawsuit.
Deborah Goldberg, an attorney for Earthjustice, which is representing the groups, denies that the plaintiffs are trying to repudiate the will of the people.
“The people of New York gave the state an option it did not have before. All we are saying is that, in exercising that option, the state must follow consistent procedures and comply with legal requirements. DEC calls that ‘busy work.’ Even supporters of the constitutional amendment have been shocked at this administration’s cavalier attitude toward the rule of law,” Goldberg said in an e-mail to Adirondack Almanack.
In the lawsuit, the groups contend that DEC failed to follow a variety of environmental laws and regulations in issuing the permit, including the State Environmental Quality Review Act (SEQRA)
Taylor contends that Proposition 5 supersedes laws and regulations in conflict with the amendment. Yet she says DEC did take a “hard look” at the drilling plan, as required by SEQRA, and imposed a number of conditions in the permit to protect the environment.
“The SEQRA record is clear that DEC did not simply ‘rubber stamp’ the mineral sampling project,” NYCO asserts in its legal papers.
The plaintiffs contend that NYCO should be forced to prepare an environmental impact statement, a document that would analyze the project’s potential to harm natural resources.
Taylor and NYCO also rebut the claim that state lawmakers need to pass legislation to implement Proposition 5. Taylor says DEC attorney Ken Hamm, who drafted the Lot 8 amendment, intended it to be “self-executing.”
The state maintains that the public and the Forest Preserve will benefit if the land swap occurs. DEC estimates that about 1,500 acres will be added to the Preserve. In addition, Lot 8 will be returned to the state when the mining is finished.
“The parcels to be added to the Forest Preserve would provide greater natural resource, recreational and environmental value than Lot 8,” Taylor writes.
“Contrary to petitioners’ claims, the forest [on Lot 8] is not old growth, and is host to no significant habitat, or rare, endangered, or threatened plants or animals,” she says.
Taylor says the mineral sampling will affect less than 7.5 acres on Lot 8—“a fraction of the parcel and an even smaller fraction of the Jay Mountain Wilderness.” If the test drilling finds insufficient reserves of wollastonite, NYCO will be required to restore and reseed the drilling sites and access corridors.
NYCO asserts that a delay in drilling could jeopardize jobs down the road. The company says its existing mine, which borders Lot 8, will run out of wollastonite in four years and yet it will take at least that long to conduct the sampling, do the land swap (which is subject to the approval of the state legislature), and get all the necessary approvals to begin mining Lot 8.
“Exploratory drilling must begin immediately to ensure that, if NYCO Minerals determines that further wollastonite mining on Lot 8 is advantageous, the necessary legislative approvals and DEC mining permits are obtained in time to mitigate the economic impact of a gap in wollastonite ore,” the company says in the legal papers.
Photo: Dan Plumley of Adirondack Wild visits Lot 8.