Monday, January 12, 2015

NYCO Begins Drilling In Jay Mt. Wilderness Area

plumley-lot-8-300x2051NYCO Minerals has begun cutting trees and drilling for wollastonite in the Jay Mountain Wilderness, actions that could render moot legal efforts to thwart the company’s plans.

NYCO spokesman John Brodt confirmed that the company began work in December after New York State Supreme Court Justice Thomas Buchanan dismissed a lawsuit challenging NYCO’s permit.

Last week, Earthjustice filed a notice of appeal with the Appellate Division of State Supreme Court, but it’s uncertain whether it will follow through. The nonprofit organization is representing Protect the Adirondacks, Adirondack Wild, the Sierra Club, and the Atlantic States Legal Foundation.

Peter Bauer, executive director of Protect, said the legal issues might be considered moot by the time an appeal would be decided. He said the groups will decide within a few weeks whether to pursue the appeal.

“It’s highly unlikely that a court would act before the damage is done,” he said. “So that will be a major factor in our decision.”

Earthjustice contends that a test-drilling permit issued to NYCO by the state Department of Environmental Conservation violates the Adirondack Park State Land Master Plan and other environmental laws. The permit allows NYCO to cut trees for access roads and drill sites.

Ordinarily, mining is forbidden in the Forest Preserve, which is protected by the state constitution as “forever wild.” In 2013, however, the public voted to amend the state constitution to authorize the state to give NYCO a 200-acre parcel in the Jay Mountain Wilderness in exchange for other lands. The swap will not take place until NYCO confirms that the parcel, known as Lot 8, has sufficient wollastonite to make the deal worthwhile. Wollastonite is a fairly rare mineral used in ceramics, plastics, and paints.

Justice Buchanan had issued a temporary restraining order against the drilling, but he lifted it in December when he dismissed the suit.

Hannah Chang, an attorney with Earthjustice, said the organization might ask the Appellate Division to issue another temporary restraining order. “The work [at Lot 8] could take a few months, so there’s a possibility that the court would make a decision on the request before then,” she told Adirondack Almanack.

Even if such a restraining order is granted, Bauer said Lot 8 will have been severely damaged in the interim.

“This is a historic moment for the Forest Preserve,” he said. “This is arguably the greatest injustice and greatest abuse of the Forest Preserve in the last 120 years of public ownership.”

Among other things, Earthjustice disputes DEC’s finding that the test drilling would result in no significant adverse environmental impact—a finding that freed NYCO of the obligation to prepare a lengthy environmental impact statement. Earthjustice also claims that the Adirondack Park Agency’s amendment of the Jay Wilderness management plan to allow drilling violated the State Land Master Plan.

DEC and the Adirondack Park Agency contend that the constitutional amendment, known as Proposition 5, supersedes laws and regulations that conflict with it. Nevertheless, state officials say the drilling plan was designed to protect the environment.

Photo: Dan Plumley of Adirondack Wild on Lot 8.

 

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Phil Brown

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.




38 Responses

  1. Charlie S says:

    “the public voted to amend the state constitution to authorize the state to give NYCO a 200-acre parcel in the Jay Mountain Wilderness…”

    > The misinformed public!

    “NYCO spokesman John Brodt confirmed that the company began work in December..”

    > December for excavation with its bitter cold temperatures.This will be real good for all of the salamanders that will be dug up and suddenly exposed to that cold air.A death sentence. What’s a couple thousand salamanders anyway. Or frogs that burrow for the winter. Snakes…… Nobody thinks about these things i bet. At least if they would have excavated in warmer weather the amphibians and other critters would have had a chance.How sad!

    • Paul says:

      I think that it might actually be better to do this work in the winter when the ground is frozen. Like with logging it is much lower impact in the winter.

  2. Nate says:

    @ Charlie S

    Fortunately or unfortunately, it is the “misinformed” public that will continue to hold the power to change rules related to the Adirondacks.

    If we want to protect the Adirondacks for the long term, protections cannot simply be a piece of the NYS constitution or administrative law. The people have to want to protect the Adirondacks.

    A large number of people decided this 200 acres was a fair trade. If we can understand why people feel this way, we might have the opportunity to discuss other ways of achieving the desires of the population without damaging or trading away land in the Adirondacks.

    As I have said here before, from my perspective as a younger person, the primary issue my generation faces is not whether we lose 200 acres of land. It is whether we can find a job to support ourselves. I have further come to believe that in this environment, where most people end up working in cities, that very active programs designed to get people INTO the wilderness can help drive an appreciation for, and desire to protect, these places. This will be a trade off, because with use will inevitably come over-use in some areas. But I believe getting people interested in the Adirondacks is the long term solution to these challenges.

    Nate

    • Avon says:

      I’m worried about the day when “a large number of people” is free to decide that something/anything else inside the Blue Line is a “fair trade.” In Teddy Roosevelt’s day, thank God there was no corporate Internet lobbying or PAC fund-raising, or every last acre of the Park would surely have been “fair-traded” away well over a century ago.

      I’d feel a lot better if the Park protections in the NYS Constitution were as hard to amend as the provisions of the US Constitution. (Although that would never work overall, since the NYS Constitution is a voluminous document that micro-manages everything, right down to the speed limit on my single block in Brooklyn.)

      • Paul says:

        I think Colvin has a good point below in his comments. In the past prior to PACs and the internet we certainly did “worse”. interesting point. again this is stiil a swap that will increase the size of the forest preserve.

  3. M Randall says:

    The “misinformed” public had 2 bills to consider both with the ADK in mind, my down state friends voted for both since they were not sure which one was for the one that gave people back their land, which also was in the ADK. Personalty, it is easier to stop prior, than once the bill was pasted. I also had to look at both and make sure I voted “Yes” for the right one. This is my observation, and it is hard now to retake the vote.

  4. Colvin says:

    Mr. Bauer asserts that NYCO’s exploratory drilling “is arguably the greatest injustice and greatest abuse of the Forest Preserve in the last 120 years of public ownership.” Setting aside the issue of whether activities being done pursuant to a constitutional amendment constitute “injustice and abuse,” it would seem that the Forest Preserve has suffered more from other amendments. Consider, for instance, the amendments allowing the slopes of Gore, Whiteface, and Belleayre to be sliced and carved up for downhill ski trails; the amendment authorizing a road to be constructed to the summit of Whiteface; the amendment authorizing construction of the Northway on Forest Preserve land; and the amendment authorizing 3% of the Forest Preserve to be flooded for municipal water supply, canal water supply and stream flow control purposes (remember the Panther Mountain reservoir debacle in the 1940’s?). Consider also the construction of roads to allow blowdown to be removed after a hurricane in the 1950’s–activities completed without any constitutional authorization whatsoever. Unlike the NYCO amendment, none of these amendments included a land exchange requirement to make the Forest Preserve “whole.” We can argue as to whether the purpose of these amendments is more justifiable than the purpose of the NYCO amendment, but if you measure the amount of injustice to the Preserve by the number of trees cut/flooded and whether any land was required to come into the Preserve in exchange, it would seem that these other amendments, and the removal of blowdown in the 1950’s, created a greater injustice and abuse to the Preserve than NYCO’s exploratory drilling.

    • Greg M says:

      21st century sensationalism at it’s best. Everything is the next Chernobyl disaster. The sample drilling is going to happen, agree or disagree, the people and legislature have both made these decisions.

      For fun I reread the amendment and it starts with “Notwithstanding the foregoing provisions, the state may authorize NYCO Minerals, Inc. to engage in mineral sampling operations…”. While I am not a lawyer, the idea that the SLMP/UMP does not allow drilling, and necessary accessory activities, and therefore this is illegal is silly, the constitution supersedes state laws and ‘plans’. My thought is that the SLMP, in reference to drilling activities on Lot 8, is now unconstitutional and void. I’d guess that’s the way the judge sees it too.

      From an environmental standpoint, I can’t imagine how moving drilling trucks is significantly different than logging trucks, particularly during the winter. So what we are really only taking about is drill-site disturbance? How many are there? It is only a 200-acre parcel.

      I can’t see any merit in arguing this further. They were told they can “engage in mineral sampling operations”, and I’ve heard nothing to say they are doing in an unnecessarily environmentally destructive manner. Let’s spend our resources (time, money and energy) on things that will actually change the future of the Adirondacks, not on things that have already been decided.

      I think Pete had the right idea with:

      http://www.adirondackalmanack.com/2014/06/nyco-amendment-commentary-we-need-a-regional-memory.html

  5. jay says:

    Would be these the same misinformed voters that elected the POTUS and Cuomo twice?

  6. Charlie S says:

    Paul says:”I think that it might actually be better to do this work in the winter when the ground is frozen.”

    Better for who and what? You dont really care for amphibians anyway do you Paul?

    • Paul says:

      I do actually. Better for the environment. And better for the “critters” we both care about. You don’t have a monopoly on caring.

  7. Charlie S says:

    Nate says: “Charlie S Fortunately or unfortunately, it is the “misinformed” public that will continue to hold the power to change rules related to the Adirondacks.”

    We should have it where it’s not just one day of voting but a week where the polls are open. And there should be a law where everyone has to vote. And of course we’d have to make sure all voters can count to ten,know their ABC’s and a major plus would be if even a quarter of them had more than a mediocre level of attentiveness about them.Good luck!

  8. Charlie S says:

    In increments it starts Colvin. Before you know it every thing will be like drano…flushed down the pipes,corrosive.

    • Colvin says:

      Charlie S–Armageddon is not coming to the Forest Preserve as a result of NYCO. History shows that amendments are extremely difficult to pass. NYCO was a single, isolated amendment that was approved in a relatively close vote. It sets no precedent whatsoever. I bet you won’t see the passage of a similar amendment in your lifetime.

  9. Charlie S says:

    Greg M says:”So what we are really only talking about is drill-site disturbance? How many are there? It is only a 200-acre parcel.”

    How many burrowing salamanders could there possibly be on a 200 acre parcel in the Adirondacks? Surely a study has been done. If it is a healthy ecosystem possibly tens of thousands? There is such a thing as micro ecosystems which you’d have to be open to see,independent units dependent on the whole.Give a man a bulldozer and offer him monetary notes to put it to use and blindness sets in…if he were even able to see in the first place.
    My dad has told me more than once, “If you cannot replace it you shouldn’t destroy it.” How wise the old man is.They should teach us that ‘day one’ in school.They should teach us that all living things matter!

  10. Charlie S says:

    What choices did we have Jay? People chose the lesser of two evils.

  11. Nature says:

    Charlie,

    I respect your opinions on this issue, but I assume you live somewhere? Wherever that somewhere is, your dwelling displaced lots of flora and fauna when it was built. And, it is blocking flora and fauna from returning. How can you live with that?

    Also, You use some sort of electronic communication device (as evidenced by your posts here). Did you know that these devices use a number of minerals that must be taken from the ground? They also use energy (potential global warming), and require a lot of resources to recycle properly. This all boils down to impact on flora and fauna. Once again, how do you reconcile the use of electronics with the desire to save the earth?

    @Peter Bauer,

    As with Charlie, I respect your opinions on this issue. however, I have a hard time linking a constitutional amendment with injustice. There was a democratic process involved. I would also argue that the Adirondack Park cannot suffer from injustice; it is only a human construct. Only the humans that created this political construct can suffer injustice, and I don’t believe they have based on my statement above.

    To an average person like me this sure looks like you are simply trying to be obstructionist. I don’t believe this to be your intention because you have stated in the press recently that you have no such intentions. I’m just saying…

  12. Hawthorn says:

    So much for “Forever Wild”…

  13. Charlie S says:

    Paul says:”I do actually. Better for the environment. And better for the “critters” we both care about. You don’t have a monopoly on caring.”

    I should hope not Paul but you sorta contradict your initial response to my concern for all of the salamanders when i said “December for excavation with its bitter cold temperatures.This will be real good for all of the salamanders that will be dug up and suddenly exposed to that cold air.A death sentence.”

    Your response to this was “I think that it might actually be better to do this work in the winter when the ground is frozen.”
    As if you didn’t read one word i said in that sentence. Which is it gonna be Paul? Salamanders or excavation? Whose side you on? By your response i already know the answer.

  14. Charlie S says:

    Nature says: “Charlie,I respect your opinions on this issue, but I assume you live somewhere? Wherever that somewhere is, your dwelling displaced lots of flora and fauna when it was built. And, it is blocking flora and fauna from returning. How can you live with that?

    I respect your opinions too Nature,and of course I live somewhere,but you’re comparing things that have nothing to do with the subject at hand. We’re talking about the Adirondacks not suburbia and my place of residence which was constructed over a hundred years ago the damage is long done. I don’t get your drift. It’s as if your psychology (consciously or not) seeks to justify any thing that goes against the things that some of us hold dear,namely the natural order of things.. trees, birds, bees, amphibians,the Adirondacks.

    I know people that no matter what issue you put forward to them relative to another environmentally sensitive area being threatened by whatever corporation their stance is always in defense of the corporation. There’s no rationalization with some people.

  15. Paul says:

    Doing this work in the winter will cause less of a disturbance. Not doing it is a train that has already left the station. Doing it when the ground is frozen will cause less damage.

  16. Charlie S says:

    The salamanders Paul. Hello!

    • Paul says:

      I doubt it would be better to do this work during their breeding season. Doing this kind of work when the ground is easily torn up and compacted during the warmer months has got to be worse. It seems like doing this when these animals are dormant is better. I think we can agree to disagree.

  17. Bill Quinlivan Bill Quinlivan says:

    Look, the reason NYCO is drilling in December has nothing to do with their caring about amphibians. They are drilling in December to beat the possibility of an appeal to the punch. Remember this is the same corporation that was blackmailing us with the “preservation of jobs” to get their way. I voted against giving them the land, not because I didn’t care about the folks who worked for NYCO, but because I did not feel that NYCO’s parent had any long-term commitment to remaining here and when weighed against the precedent that was being set, it was a NO WIN situation for the ADK. I believe that we are looking at the first step in a long term trend of the ADK and the rest of the country being held up and/or held hostage by multinational corporations, but I guess that on this past election day, I was in the minority.

  18. Tony Goodwin Tony Goodwin says:

    Remember that this isn’t the first amendment to Article 14 that resulted in trees being cut. I therefore don’t see this as a precedent that weakens future Article 14 protection of the Forest Preserve.

    The Adirondack Northway cleared thousands of acres and filled many wetlands on the Forest Preserve. The Perkins Clearing land exchange with International Paper resulted in many hundreds of acres of old growth forest being available to be harvested. The amendments that allowed for Whiteface, Gore, and Belleayre ski areas to be built also cut hundreds of acres of trees. In each case, however, the outcome was a net benefit to the public.

    One of the earlier comments on the Almanack article said, “…this is arguably the greatest injustice and greatest abuse of the Forest Preserve in the last 120 years of public ownership.” – While the Lot 8 amendment did primarily benefit a private corporation as opposed to the general public, Perkins Clearing also primarily benefitted a private corporation, and a major justification for both the Northway and ski area amendments was that private enterprise would benefit from these improvements to the Forest Preserve.

    Let’s try to put this in perspective while remembering that if wollastonite is found NYCO must transfer at least a million dollars of new land to the Forest Preserve, and this will be way more than the 200 acres lost in Lot 8.

    • mike says:

      The Northway amendment only took 300 acres. The Blue Line, at the time, was between Keene and Elizabetown, and did not include the shore of Lake Champlain nor much of the I87 route. The Blue Line was changed after the highway was built.

  19. Curt Austin says:

    Principle before Pragmatism!!

    Pragmatism before Principle!

    Principle guides Pragmatism.

    I like decisions based on the fewest number of exclamation points, which are intended to discourage sober-minded thought. That’s what we got in the NYCO matter. It’s very cool that we’ve managed to arrive at this outcome; it’s a great precedent.

  20. Scott van Laer scottvanlaer says:

    I don’t believe it was pragmatic. Firstly, we “sold” the land for far less than it’s value. We spent more than that just considering the amendment and having it typed onto the ballot! Projections on the mineral value are in the 100’s of millions not 1 million.

    If you wanted to benefit the public with such mineral extraction from state land a different system should have been used, perhaps something like in Alaska where residents s receive a dividend from resource exploitation.

    This was not pragmatic, it was not in the public’s interest, it was the sale of public lands to a private company for the benefit of very few in the private sector. It was exactly what article 14 was designed to prevent. As an electorate we lost focus of that.

  21. Bill Ingersoll Bill Ingersoll says:

    Land acquisition is not an end that justifies all means. The possible net addition of 1300 acres is NOT a benefit that forgives the destruction of any amount of wilderness lands. To claim this potential exchange is a “benefit” is to say that the “boring” parts of the Forest Preserve–that is, those parts that lack scenic vistas or trout ponds–should be culled and traded for something more “fun.” I reject this argument.

    We’re in the middle of consummating the largest Forest Preserve acquisition project (Finch Pruyn) we are likely to see in our lifetimes. Therefore I remain unimpressed by the “postage stamps” that we might receive in exchange for Lot 8. For anyone with a long enough memory, you will recall the map of the potential new additions that was circulated last year. Assuming these parcels are still on the table–I don’t believe they were guaranteed–they were NOT all eligible to be added to the Jay Mountain Wilderness.

    Also, Perkins Clearing is NOT a valid comparison to NYCO. That exchange (http://www.adirondackalmanack.com/2014/11/state-land-master-plan-part-four-winning-and-losing-whitney-lake.html) was motivated by a public need as much as by a private need. In the case of NYCO, there was no public issue with Lot 8. We have clear title to it, valid public access to it, and it was deemed important enough to be included within the Jay Mountain Wilderness. Therefore we have no public reason to exchange this parcel. The motivation is all on NYCO’s side. I am not a NYCO shareholder, they do not employ me, and no one has ever passed a constitutional amendment to protect my paycheck. Therefore I cannot imagine any circumstance in which I would have voted in support of Prop 5.

    As a result of this amendment, I refused to vote for Andrew Cuomo this year, and I have cut my ties with both of the “conservation” organizations that supported Prop 5. In my opinion, they sold out, and I have no faith in their leadership to protect the Forest Preserve. The role of a watchdog group is to speak on behalf of the wild, and to be skeptical of any and all actions to subvert Article XIV. As a constituent for the Forest Preserve, I grant no one the authority to speak on my behalf while establishing the acceptable rate of exchange for wilderness lands. I would kick such people out of office if it were up to me.

    It sickens my stomach that Prop 5 was passed by such a narrow margin last year–a mere 154,537 difference between the yeas and the nays. With just a little more effort, perhaps more of the 879,267 undecided voters could have been persuaded to vote “no.”

    • adkDreamer says:

      Bill – Here is my sad story: I live in Jay like many folks. At the ballot box I filled in my ballot on the candidates side and totally forgot to flip the ballot over for the referendums. Mea Culpa on that one. However, the machine that I fed the ballot into should have noticed that the back side was blank and alerted me.

      Probably not a lot of missed votes this way, but I am probably not alone.

      • Bill Ingersoll Bill Ingersoll says:

        The situation you described probably does explain a lot of the blank votes, but not all of them. As you may recall, there were six propositions on the back of the ballot in 2013. However, the count for the blank votes was not consistent across all six items. For the casino question (Prop 1) there were only 512,000 blanks. Prop 2 (civil service credits for disabled vets) had 679,000 blanks, and Prop 6 (retirement age for judges) had 739,000 blanks.

        Both of the Adirondack-related propositions, Prop 4 and Prop 5, had similar blank counts (877,000 and 879,000 respectively).

        This tells me that many voters were only weighing in on subjects they felt knowledgeable about. People were particularly opinionated about casinos, but less so about the issues. I think many voters simply opted not to make a choice if they didn’t understand the issue. Rather than voting down something that might be good, or approving something they might regret, the easiest solution was to avoid the question altogether.

        In regards to Prop 5, New York City voters were especially undecided. In the 5 boroughs, 318,998 people voted for Prop 5; 330,646 people voted against it; and 452,756 people made no choice. That last figure accounts for more than half the statewide number of blank votes for Prop 5.

        Although I cannot verify this myself, I heard rumors that the PR firm hired by NYCO had targeted the Metro area with ads that more or less said Prop 5 was nothing to worry about. Several downstate residents have told me they were completely unaware of any controversy whatsoever.

  22. Colvin says:

    Article XIV was intended to prevent the State from disposing of Forest Preserve land by legislation or administrative fiat. It was not intended to prevent Forest Preserve land from being sold as a result of a constitutional amendment approved by the voters.

    Also, the state has not sold the land for “far less than its value.” The amendment states that information from the mineral sampling operation must be turned over to the State which will then use the information to appraise the land. NYCO must then buy replacement land that is either equal to or greater than that appraised value, or replacement land that is worth $1 million, whichever is greater. If the appraisal comes in at less than a million dollars, then NYCO must buy land that is worth at least $1 million, which should buy approximately 1500 acres–more than 7 times the acreage of the lot that NYCO gets.

  23. Pete Nelson Pete Nelson says:

    Though there is nothing to be done at this point, this amendment – for reasons I’ve written about a lot here at the Almanack – was a flat-out mistake. It was a sacrifice of both wilderness and wilderness values for private gain. Said private gain, being enmeshed in the complexities of a massive multi-national company, was not measurable in any clear way for the people of New York but was certainly not to the people’s overall benefit.

    What we can do now is fight back against the precedent that I and others think this amendment set, by refusing to allow this precedent to have legs. We can do that by being more vigilant, better at organizing, better at educating and, most especially, better at reaching out to the rest of the state the next time we face a similar Faustian deal.

    The steady support and defense of Article XIV over the decades speaks unequivocally to the will of the people of New York. Together we must be sure to not allow that will to be confused or subverted by amendments whose messages are unclear but whose effects are a direct assault on the the very idea and meaning of “Forever Wild.”

    • Paul says:

      Many of the supporters of this were very well informed and have strongly defended Article 14 over the years. Sure some folks were probably “confused” as is the case with any ballot type measure. If it was big bad “multinational” out to stick it to us that would be one thing but here it was very different.

      I think the idea of monitoring how this goes and if there turns out to be a net benefit to the Forest Preserve is what can and should be done at this point. The first step is figuring out what this land is worth (not philosophically but monetarily). If I was the state I would have already been working with the TNC folks that are working with the DEC in Albany on land valuation and figure out what we want to add to the FP for the swap. Some mega wetlands would be a good place to start.

      • Hawthorn says:

        “Many of the supporters of this were very well misinformed…”

        Fixed. The endless PR from supporters was all about the jobs this would save, but there was not one word about jobs in the amendment. If it was about jobs the amendment should have done something to preserve jobs–it did not.

  24. Paul says:

    If this sets a precedent than other corporations are going to want to help the state increase the size of the Forest Preserve and protect more land in the Adirondack park. I doubt this is much of a precedent but maybe?

    1 million dollars worth of land is only a minimum. If they hit pay dirt with this sampling then the state should play hard ball and we could see an major expansion of the FP. Given that if you support expansion of the FP, it is time for groups like the Council and ADK that supported this to make sure that we get as much as we possibly can here. Timberland is still relatively cheap in the Adirondacks and ecologically sensitive land (wetlands etc.) are especially cheap. What makes land valuable for protection makes it somewhat commercially useless so that works in the FP’s favor.

  25. Charlie S says:

    Bill Quinlivan says:Look, the reason NYCO is drilling in December has nothing to do with their caring about amphibians.

    That’s a given Bill!