Monday, July 6, 2020

DEC involvement in NYCO Amendment raises questions about public benefit

This is the last article in a 5-part series on possible amendments in 2020 to Article 14, Section 1, of the NYS Constitution, the famed forever wild provision.

This article looks back at the amendment for NYCO Minerals, Inc., in 2013, that authorized exploratory drilling on 200 acres in Lewis Lot 8 in the Forest Preserve in the Jay Mountain Wilderness. This amendment was barely approved, passing by the narrowest margin of any successful Article 14 amendment. The NYCO Amendment was different from all other amendments to Article 14 because it marked the first time that a private corporation used the amendment process to seek and obtain Forest Preserve lands for no other purpose than benefitting its bottom line. Every other amendment had a public benefit and purpose. The NYCO Amendment did not.

In the run-up to Second Passage in the Legislature and the statewide vote in the fall of 2013, it was clear to us that NYCO’s supporters were playing fast and loose with the facts. Proponents were cavalier in their claims that if the amendment did not pass, NYCO would leave the state and 150 jobs in Willsboro and Lewis in Essex County would be lost. NYCO had to get access to the Forest Preserve, proponents said, because its only other option would be to open an environmentally damaging new mine. The Department of Environmental Conservation (DEC) Commissioner at the time argued that NYCO “indicates that defeat of the amendment will cause it to either shift its mine to other Essex County property that it owns or entirely shut down its New York State operations. Mining other NYCO property would result in significantly greater environmental disruption, involving more earthmoving and expensive extraction methods than would be required by mining Lot 8 because the wollastonite vein is deeper in the earth and interspersed with more rock.”

First, in a phone call with the NYCO CEO Peter Goodwin in 2012, in which a representative of Protect the Adirondacks participated along with other green groups as well as DEC staff, the NYCO CEO stated affirmatively that a no vote would not result in NYCO leaving New York. Goodwin said mining Lot 8 would be a “competitive advantage” for the company, which is a far cry from closing down.

Second, proponents never acknowledged that NYCO had a second mine at Oak Hill, less than two miles away from the Lewis mine that borders the Jay Mountain Wilderness (see picture above). The Oak Hill Mine had been fully permitted in the late 1990s, was fully opened with vast amounts of removed overburden, expanded with new permits in the 2000s, and was fully operational. In fact, NYCO had leased out that mountain for nearly 15 years to a company that had removed vast amounts of the overburden on the mountain for its rock and gravel operations, leaving open veins of wollastonite clearly exposed. A 2006 “25 Year Plan” submitted by NYCO to the Adirondack Park Agency (APA) as part of an application for new permits stated that the wollastonite was of a higher grade at Oak Hill than the Lewis Mine and the company intended to transition to Oak Hill. The existence of this plan was never mentioned by NYCO or the proponents of an amendment.

DEC published a 19-page PR piece in support of the NYCO amendment that showcased possible lands that could be purchased as compensation for Lewis Lot 8, repeated the misinformation that failure of the amendment will lead to NYCO closing down, and never mentioned the existence of the second mine at Oak Hill, while warning of environmental damage elsewhere in the county if NYCO somehow had to find a new mine.

Events since 2013 have clearly shown that these claims were not truthful because NYCO sought and received new permits from the APA to expand both its Lewis and Oak Hill mines. The Lewis Mine received new APA permits for expansion in two directions away from Lewis Lot 8, mining opportunities that were somehow never addressed by proponents in 2012 or 2013.

Since 2013, despite the approval of the amendment, NYCO was sold to Imerys, a multi-national mining conglomerate. NYCO has let go of more than half of its staff and cut wages for those who remain. Today, NYCO is also principally working out of the Oak Hill mine.

While it was clear that state leaders played fast and loose with the facts around the NYCO votes in the Legislature and the popular vote, what was stunning was information that was forced out long after the dust settled through a Freedom of Information request for all documents and correspondence related to the NYCO deal. From this information, it was clear that the Department of Environmental Conservation (DEC) and Cuomo Administration not only strongly supported the NYCO amendment, but that the DEC, New York’s lead environmental agency, acted as a de facto private lobbying firm, strategic consultant, and research firm to provide materials and guidance that decisively aided NYCO’s legislative and PR campaigns during legislative action and the public vote. Below, we detail how the DEC acted as a private lobbyist, where a number of DEC staff worked on NYCO’s behalf. It’s important to note that while some information was released in this information request, vast amounts of internal state agency and DEC correspondence was withheld.

DEC Invested Prodigious Staff Time in Developing Promotional Materials

During First and Second Passage in the Legislature, DEC representatives reached out to legislators, legislative staff, and various interest groups urging their support for the NYCO amendment. Certainly, the DEC has a role in decisions made regarding the Forest Preserve, which is under its care and custody, but it was unusual for the DEC to take the lead in drafting and selling an Article 14 amendment. The DEC did not actively lobby other Article 14 amendment, like it pushed the NYCO amendment.

DEC staff took the unusual steps of developing “fact sheets” and “talking points” in support of the NYCO amendment. In the talking points that DEC sent to legislative staff, DEC talks about buying 2,000 acres at $500 an acre in exchange for Lewis Lot 8. Really? $500 an acre? In Essex County?

This fact sheet also talks about “superior” natural resources of new lands versus the mature, near-old-growth forests that had been in the Forest Preserve since the 1890s in Lewis Lot 8. According to the DEC, the mature forests on Lot 8 “had no particular natural resource value.” It’s remarkable, to say the least, to see the lead environmental agency in New York turn its nose down on 200 acres of forests that had not been logged or otherwise disturbed for at least 120 years. This all culminated in DEC’s 19-page “position paper” in May 2013 boosting the NYCO amendment.

We can quibble with the statements that the DEC makes in these various lobbying materials, but we should all be concerned when a state agency invests prodigious amounts of staff time in the development of materials for the principal benefit of a private corporation, or as the NYCO CEO stated, to assist the corporation’s “competitive advantage.” This level of DEC lobbying and development of supplemental materials was unprecedented.

DEC Actively Lobbied Non-Profit Groups in Support of NYCO Amendment

DEC’s lobbying of environmental groups was also unprecedented. DEC routinely held sessions with more than a half dozen DEC staffers at a time with the Adirondack Mountain Club, Adirondack Council, Adirondack Wild, Protect the Adirondacks, the Sierra Club and Environmental Advocates, among others. In 2012, the Adirondack Council opposed the NYCO amendment, but DEC was able to get the organization to reverse its decision and endorse the amendment in 2013. In 2012, Environmental Advocates opposed the NYCO amendment. DEC staff emailed to Environmental Advocates “We are of course disappointed that you have chosen to oppose and memo the NYCO proposal.” In 2013, DEC was able to get EA to take no position on Second Passage. In 2012, DEC worked on the Adirondack Mountain Club, which supported the amendment.

DEC reached out far and wide. DEC’s lead lobbyist reached out to the NYS Business Council, about the NYCO amendment writing “You around to discuss? We’re hoping for some help.” DEC staff reached out to try and enlist support from the NY League of Conservation Voters and The Nature Conservancy.

DEC also worked the Sierra Club, Atlantic Chapter, to support the NYCO amendment. The hard sell led the Sierra Club leader Roger Downs to write to the DEC “I’ve had a few days to process our meeting and I appreciate the follow up. Clearly the NYCO deal is of great importance to DEC as is evident by the amount of staff outreach. Admittedly this level of focus is curious to me in consideration of the universe of other issues facing DEC.”

In the end, DEC successfully enlisted the support of a few groups, which helped pass this amendment in the Legislature and during the public referendum. In no other amendment did the DEC whip up the votes of environmental groups like it did to build support for the NYCO amendment.

DEC Guided, and Coordinated with, NYCO in Lobbying and Advocacy

Beyond developing promotional materials and pressuring environmental groups to support the NYCO amendment, DEC counseled NYCO staff and its lobbyists on who and when to lobby individual legislators and how to successfully build a coalition. State agency staff counseling private corporations on strategies to help with legislative success seems out of the ordinary, or at least it should be.

After the success of First Passage of the NYCO amendment in 2012, that fall supporters started planning for joint operations in 2013 for Second Passage. In November 2012, staff for Assemblymember Teresa Sayward reached out to the DEC with a request, “NYCO is looking for talking points for the video they are preparing to make.” DEC responds to the NYCO CEO “Hope you had a nice Thanksgiving. Attached is what DEC has developed for talking points in follow up to our meeting. My apologies for the delay. Rob [Davies, Director, Division of Lands & Forests] will be reaching out to set up a conference call to discuss next steps. Please let me know if you have any questions, comments or concerns. Thank you. Julie [Tighe].”

DEC continued to work with NYCO on securing some undeveloped NYCO lands for potential parts of the land swap. DEC asks for “verbiage” and “property descriptions.” DEC also worked with NYCO on its overall strategy. At 3:05 PM on April 30, 2013, Davies wrote NYCO CEO Goodwin: “Peter, Any word on the steel workers?” in reference to political/lobbying support from the Steelworkers Union. At 3:34, Goodwin responded to Davies: “You must be clairvoyant! Just heard that we will get Steelworker support. Does Julie T [Tighe] have a Bill number yet? So we can pass to the Steelworkers.” At 3:47 PM, Tighe emailed Goodwin and asked for a bill memo from the Steelworkers Union in support of the NYCO amendment: “Please ask the steelworkers union to get us their memo when it is available and we can see if we can leverage that.”

In May, Mark Behan of Behan Communications, retained by NYCO for lobbying and public relations, emailed back and forth with Tighe about memos of opposition. On May 15, Behan emailed DEC leaders transmitting a letter of support for the NYCO amendment from Congressman Bill Owens to Assembly Speaker Sheldon Silver and said he “looked forward to talking on Monday.”

On May 24, 2013, Goodwin, Behan and DEC leaders exchanged emails and materials for a conference call later that day. Behan Communications had prepared various lobbying materials that would be previewed in that call. On May 31, 2013, Goodwin emailed DEC seeking guidance for how to lobby the Legislature. Tighe emailed back with precise targets for who to lobby: “More specifically, the chair of the En Con Committee and central staff.”

On June 3rd, Tighe wrote Goodwin reporting of progress in the Legislature: “We had a good meeting today with Assm Stec and Senator Little to bring them up to speed on where things are. The Commissioner and I are meeting w Assm Sweeney [Assembly Conservation Committee Chair Robert Sweeney] tomorrow to fill them in. I am in the process of scheduling meetings with … other environmental groups for later this week. Thanks-Julie.” At 4:50 PM that day, Behan emailed Tighe and others at DEC about the support of the Steelworkers Union: “Dear Rob, Julia, Marc and Ken — Enclosed is the United Steelworkers’ letter issued today to Assembly Speaker Silver (and copied to Gov. Cuomo, Commissioner Martens, Sen. Little and all members of the Assembly) endorsing the NYCO Adirondack land exchange. Best regards, Mark Behan.” Thirteen minutes later, Tighe responded “Fantastic. Thanks!” Davies responded at 6:20 PM, “Excellent. We are making real progress at the right time. Thanks.” The next day Goodwin emailed Davies and Tighe a memo of support from the ALF-CIO.

On June 12, 2013, Tighe emailed retired Assemblymember Sayward “Thanks for your efforts. Please let me know if there are particular members you think need me to pay them a visit. I’m going to try and hit up en con and judiciary members today. Thanks- Julie”. Sayward wrote later: “Hi Julie, I have been on the phone this morning and I too believe the Judiciary is important. I will meet personally with Helene [Assemblymember Weinstein] this coming week. She may not vote for the bill, but I believe she will work with me to get it through committee. Teresa.”

At 9:32 PM on June 12th, Tighe emailed Mr. Goodwin reporting that Assembly Environmental Conservation Committee chairman Robert Sweeney had put the bill for Second Passage on his committee’s calendar. She suggested that NYCO submit a letter in support: “i think you guys should submit a memo/letter to the various committees. assm en con, judiciary and W&M. plus the speaker.” Five minutes later, Goodwin responded needing clarification and guidance: “Julia What. Type of letter and Please list who? Mark Behan can draft one Regards Peter.” Six minutes after that, Tighe emailed Goodwin “letter of support explaining why its important to the company. all the dem members of the assembly en con, judiciary and ways & means committees – mark behan should know how to get those lists. Its a lot of members in the Assm. (I know b/c i have been pulling them off the Assm floor all day today to discuss this with them).” At 9:46 PM, Goodwin responded “How about giving them the Video? A letter will take time” and also asking Tighe “How much time do we have?” At 9:48 PM, Tighe emailed “En con is tomorrow. Not sure when the next cmte mtgs will be – likely next week.” At 9:51, Goodwin responded “Thanks I’ll talk to Mark [Behan] in the AM.” At 9:51 PM, Tighe emailed “Sounds good.”

Now, understand, that it takes six months for the DEC to respond to a simple Freedom of Information request. Clearly, NYCO got some pretty great service from senior DEC staff. The correspondence above, and the coordinated materials, shows a vast expenditure of state resources on behalf of NYCO Minerals, Inc., as well as a hand-in-glove coordination between the corporation and the DEC to plan and execute a legislative campaign. This unprecedented support by the DEC was decisive in passing this amendment in the Legislature.

DEC Intervened at the Board of Elections to Change Ballot Language to Make it Favorable to NYCO

As it turned out, the DEC’s work in support of NYCO did not end with the Second Passage in June 2013. The DEC’s work to support the NYCO amendment was needed again, and acutely, in August. At 6:31 AM on August 1, 2013, Behan emailed his team at Behan Communications and NYCO leaders about the ballot language approved by the Board of Elections at its July 29, 2013 meeting.

Dear Colleagues:

We have received word from New York State Board of Elections that the NYCO and land swap amendment will be Proposition Number 5 on the November ballot. In addition, the Board of Election has proposed the following language:

In Relation to a Land Exchange in the State Forest Preserve with NYCO Minerals, Inc.
The proposed amendment to section 1 of article 14 of the Constitution would authorize the Legislature to convey forest preserve land located in the town of Lewis, Essex County, to NYCO Minerals, a private company that plans on mining the land. In exchange, the NYCO Minerals would give the State at least the same amount of land of at least the same value, with a minimum assessed value of $1 million, to be added to the forest preserve. When NYCO Minerals finishes mining, it would restore the condition of the land and return it to the forest preserve. Shall the proposed amendment be approved?

As you can see, the language is inaccurate, unclear and clumsy. For example: NYCO has committed to giving the state at least 1,500 acres of land. It does not make clear that the state’s transfer of 200 acres to NYCO is temporary, while additions to the state forest preserve are permanent. While NYCO and mining are mentioned twice, the language never expresses the public benefit of the exchange: More open space for preservation and recreation. (Other proposed amendments do set forth such a benefit, as shown below.) We are working with our contacts in state government to see if the Board of Elections can be persuaded to make changes in the language and will have more to report on Monday.

At 11:58 AM on August 1, 2013, Mr. Goodwin emailed Davies and Marc Gertsman, DEC Counsel, conveying NYCO’s unhappiness with the Board of Elections’ approved language. “Rob, I will call you this PM around 1:00. We are VERY concerned with this language. See below [Behan’s forwarded email]. Regards Peter.” At 1:12 PM, Tighe responded to Goodwin: “we are doing what we can on this.”

Assemblymember Dan Stec’s chief of staff Deb Capezzuti emailed Tighe with recommended ballot language from Behan Communications:

Mark Behan reached out to us with proposed language for the ballot-Mark feels that the revised language still references mining to often and also referring to NYCO as a private company. He also suggested changing the word “assessed” to “appraised” but the CA bill clearly states “assessed”, which we need to be consistent with- as you can see he wants to include the 1500 acres which I don’t think we can do as it is not mentioned in the CA in that manner. I do like the terminology “for mineral exploration and extraction in exchange for”. Elizabeth said that DEC and Assembly signed off on this yesterday which we were not aware of-I was off last Thursday and Friday. Please let me know your thoughts-thanks Deb. Below is Behan’s suggestion:

Behan’s suggestion:

The proposed amendment to Section 1, Article 14 of the State Constitution would authorize the Legislature to temporarily convey to NYCO Minerals Inc. 200 acres of forest preserve land in the Town of Lewis, Essex County, for mineral exploration and extraction in exchange for which NYCO Minerals Inc. would permanently convey to the state at least 1,500 acres to expand and improve public access to the forest preserve and would fully restore the condition of the borrowed 200 acres and return it to the forest preserve? Shall the amendment be approved?

–Deb Capezzuti Chief of Staff Office of Assemblyman Dan Stec.”

On August 5, 2013 the Board of Elections executive staff changed the ballot language for Proposal 5. The July 29, 2013 version approved by the Board of Elections Commissioners themselves reads:

Proposition 5 In Relation to a Land Exchange in the State Forest Preserve with NYCO Minerals, Inc.
The proposed amendment to section 1 of article 14 of the Constitution would authorize the Legislature to convey forest preserve land located in the town of Lewis, Essex County, to NYCO Minerals, a private company that plans on mining the land. In exchange, the NYCO Minerals would give the State at least the same amount of land of at least the same value, with a minimum assessed value of $1 million, to be added to the forest preserve. When NYCO Minerals finishes mining, it would restore the condition of the land and return it to the forest preserve. Shall the proposed amendment be approved?

The August 5, 2013 version approved by the Board of Elections executive staff and placed on the ballot reads (changed language is in bold):

Proposition 5 In Relation to a Land Exchange in the State Forest Preserve with NYCO Minerals, Inc.
The proposed amendment to section 1 of article 14 of the Constitution would authorize the Legislature to convey forest preserve land located in the town of Lewis, Essex County, to NYCO Minerals, a private company that plans on expanding an existing mine that adjoins the forest preserve land. In exchange, NYCO Minerals would give the State at least the same amount of land of at least the same value, with a minimum assessed value of $1 million, to be added to the forest preserve. When NYCO Minerals finishes mining, it would restore the condition of the land and return it to the forest preserve. Shall the proposed amendment be approved?

In response to a press inquiry related to the six ballot amendments and to a controversy around the language of the proposed gambling amendment, the Board of Elections staff stated in pertinent part that “The Department of Environmental Conservation asked for changes to the two Adirondack land swap amendments which were accommodated and re-certified and co-signed by the two Co-Executive Directors on August 5. No changes were made to the other amendments after the July 29th meeting.” It’s important to note that Protect the Adirondacks was denied additional materials under a Freedom of Information Request by the Board of Elections, including 45 pages of correspondence with other state agencies. An appeal of this decision was also denied.

Once again, this level of intervention by senior DEC staff on behalf of NYCO was unprecedented. These 45 pages of withheld materials should be made public.

DEC Assisted NYCO in its Vote Yes Advocacy for November 2013 Election

The coordination between the DEC and NYCO did not end with Second Passage or the intervention at the Board of Elections. DEC assisted NYCO with its promotion of Proposal 5 in the run-up to the November 5, 2013 election.

On June 20, 2013, at 2:47 PM, just a day after Second Passage, NYCO started organizing for its advocacy campaign for the general election. It started with a request to DEC for help. Dan Fitzgerald, of Behan Communications, wrote Davies and Tighe asking for lobbying materials that DEC had developed for use in advocating in the general election. Fitzgerald wrote:

Rob, After reading the DEC position paper, I was impressed with the detail that it provided as well as with the fact that it showed the use of the Adirondack Council guidelines. I think that this would be a wonderful resource for interested voters who will want to be informed before casting their vote on this issue. I thought that if the position paper were already posted to the DEC website, we could simply provide people with the link. In the event that it is not or will not be posted there, is this document one that can be shared on supporters websites? Dan Fitzgerald, PMP, Senior Project Manager, Behan Communication.

Davies responded that day: “Hi Dan – No, we never put maps on the DEC website. We would be happy to e-mail to you whatever you need that would assist you in creating a website. Let me know if you need anything.”

On August 26, 2013, Goodwin emailed Tighe and Davies about a new promotional website and Facebook page supporting Proposal 5.

At 9:16 AM on October 16, 2013, Behan emailed Goodwin seeking help to refute criticisms of Proposal 5: “Hi, Rob, Peter and Mark — Among his frequent criticisms of Proposition 5 Peter Bauer says there’s no enabling legislation — therefore, no guarantee that the state will get what it says it will get. Conversely, he says, there is enabling legislation for Prop. 4. Do you know the history here? Why no enabling legislation? We want to be prepared with an answer. Thanks Mark.” At 9:18 AM, Goodwin forwarded Behan’s email to Tighe and asked “Please see the email below. Can you provide an answer for us on this issue?” At 9:33 AM, Tighe responded to Goodwin and at 10:18 AM Ken Hamm, a DEC attorney, provided a more detailed response. The next day Mr. Goodwin emailed Hamm “Thanks Ken” and to Tighe “Thanks for the help Julie.” Tighe emailed Goodwin “Any time.”

DEC staff should have refrained from any and all advocacy or support for this amendment in the months after Second Passage and prior to the election in November 2013. State agencies are barred from assisting one side or the other in ballot questions. DEC was hardly impartial.

The Fallout

The NYCO Amendment was listed on the 2013 ballot as Proposition 5. It passed, largely carried by strong union efforts in support of Proposition 1 that allowed casino gambling in New York. Hundreds of thousands fewer New Yorkers voted for Proposition 5 than did Proposition 4 for the resolution of property title issues in Township 40 around Raquette Lake.

Since the passage of the amendment in 2013, NYCO has conducted test drilling on Lewis Lot 8, cutting the forest that had not seen an axe since the 1890s, or before, for roads and drilling platforms. NYCO is now working to test the wollastonite supply beneath Lewis Lot 8 by horizontal drilling from its mine wall that borders the Forest Preserve.

The good news is that the NYCO amendment has produced changes in the assessment of proposed Article 14 amendments in the Legislature in several critical ways, spearheaded by the leadership of the State Assembly Conservation Committee Chair Steven Englebright and the senior environmental staff in the State Assembly:

  • It is now stated policy among legislative leaders and staff that a proposed Article 14 amendment must be scrutinized for its purpose and benefits. An amendment must be a verifiable solution of last resort that is needed to resolve a real public problem.
  • An amendment must provide tangible public benefits.
  • An amendment must be written consistent with past amendments.
  • An amendment must be accompanied by enabling legislation that details all agreements and the process for how the amendment will be administered at the time of First Passage. Enabling legislation is now a must for Article 14 amendments.

The three possible amendments at varying stages of consideration in 2020 are being assessed under this criteria. While State Assembly leaders have made it clear that there will be no more NYCO-style amendments, and that new possible Article 14 amendments will be tightly scrutinized, the DEC and Cuomo Administration have shown no appetite for reflection. Thankfully, the Legislature has made serious reforms.

The NYCO amendment has not been finalized by the Legislature as is required. The final land swap has to be authorized by the Legislature to approve the value of Lewis Lot 8 and the new lands proposed for addition to the Forest Preserve as compensation for the loss of Lewis Lot 8. It’s 2020 and the state has yet to submit anything.

Protect the Adirondacks has called for legislative hearings to fully examine the role of the DEC and Board of Elections in the NYCO Amendment. It is our position that this amendment should not be finalized by the Legislature until all of DEC’s actions in support of NYCO have been brought to light, all withheld materials made public, and that this matter is fully investigated.

In 2015, Protect the Adirondacks submitted a complaint to state leaders about the NYCO amendment. The New York Times published parts of PROTECT’s research.

This is the fifth article in a 5-part series that looks at amendments to Article 14, Section 1 of the State Constitution, the famed forever wild provision,  that are under consideration in 2020.

Photo: The two NYCO Minerals, Inc., mines in Lewis. Oak Hill is in the foreground, with the Lewis Mine and Jay Mountain Wilderness in the background. Photo by Nancie Battaglia.

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Peter Bauer

Peter Bauer is the Executive Director of Protect the Adirondacks.

He has been working in various capacities on Adirondack Park environmental issues since the mid-1980s, including stints as the Executive Director of the Residents' Committee to Protect the Adirondacks and FUND for Lake George as well as on the staff of the Commission on the Adirondacks in the Twenty-First Century. He also worked at Adirondack Life Magazine. He served as Chair of the Town of Lake George Zoning Board of Appeals and has served on numerous advisory boards for management of the Adirondack Park and Forest Preserve.

Peter lives in Blue Mountain Lake with his wife and two children, enjoys a wide variety of outdoor recreational activities throughout the Adirondacks, and is a member of the Blue Mountain Lake volunteer fire department.

Follow Protect the Adirondacks on Facebook and Twitter.




32 Responses

  1. Chris says:

    Horrible “politics” and it’s still not over!

    Thanks for your work on this.

  2. Lee Keet says:

    Peter,

    The big NYCO failure was the lack of enabling legislation, not DEC’s advocacy for the proposed swap.

    I was Government Relations Chair for the Adirondack Council at the time of the NYCO proposal. When it came up, we did not have a formal policy for under what conditions we would support a proposed land swap amendment. After many committee and board meetings at the beginning of 2013 we adopted one and presented it to the DEC as a “without this we will oppose” set of conditions. We recently expanded this policy to include “use” amendments, but the six key principles have not changed. Truthfully, we did not expect the folks at DEC to be able to come up with a deal that met all six conditions.

    Your article implies collusion or malfeasance on the part of DEC and NYCO and impugns the reputations of some very decent folks. I was there, and I know that DEC was working very hard to strike a deal that would meet our criteria. Somehow they did, or honestly thought that they had.

    I am printing the Council’s 2013 rules for supporting a land-swap amendment below in their entirety so other readers can assess them and DEC’s actions in response.

    Adopted by the Board of Directors, Adirondack Council, February 7, 2013

    Any proposed exchange of land in the Forest Preserve for land not now in the Forest Preserve will be judged against the following considerations:
    1. The proposed land exchange must be narrowly defined, specific in purpose, limited in scope, and be supported by important public policy objectives;
    2. The land currently in the Forest Preserve proposed for exchange cannot have unique biological, environmental, or hydrologic features, cannot include critical wildlife pathways, and cannot be part of a contiguous parcel that would become non-contiguous after the exchange;
    3. The ecological, biological, hydrological, physiographic, and/or locational qualities of the parcel(s) to be received should be superior to those of the parcel(s) being exchanged, and these qualities of the parcel(s) to be exchanged should be such that the parcel(s) would be a candidate for addition to the Forest Preserve absent any exchange proposal.
    4. If (a) the land received will not add significantly more acres to the Forest Preserve than contained in the acreage of lands taken out of the Preserve, or (b)
    the appraised value of the parcel(s) being received is not substantially higher than the appraised value of the parcel(s) being given up,
    then the parcel(s) to be received must be overwhelmingly superior to that being exchanged, taking into consideration biodiversity, flora, fauna, animal pathways, watershed characteristics, streams, lakes and other water bodies in the parcel(s);
    5. Any impact of the proposed exchange on local communities must be, on balance, substantially to the benefit of those communities;
    6. Taken as a whole, the proposed land exchange must achieve a significant improvement to the Forest Preserve and/or a long term benefit either to the local communities being affected or to the People of the State in general.
    . . . . . .
    I wish other environmental and advocacy organizations would adopt policy positions like these before they are needed, and make them public. Those presented here are not perfect, but having them and letting our government officials and partners know them in advance is better than the knee-jerk reactions from some to each proposal that comes along. And, I think, they allow us to dispassionately look backward at prior decisions, as you have, and question whether we acted in the best interests of the environment, economy, and citizenry.

    The NYCO project failed for the reasons you point out. I think our principles stood tall.

  3. Henrietta Jordan says:

    Um, how does one define “corruption”? Thanks, Peter, for your explication.

  4. Zephyr says:

    The deal failed in the ways that many of us predicted (read the old posts here and the comments) based on what often happens when private industry promises jobs, jobs, jobs in exchange for giving away a public good. Here’s one link: https://www.adirondackalmanack.com/2013/12/nyco-amendment-fact-fiction.html Happens over and over and over again.

  5. Tim says:

    I’ve been waiting years for this article! Thank you.
    Why were the DEC and members of the legislature so invested in passage of this amendment?
    I’ve heard but not confirmed most of the remaining miners are from Vermont.
    I haven’t seen any activity at the Lewis mine in years. Why haven’t they been required to “reclaim” the land?
    Why was it so important to the DEC and others to add land to the Forest Preserve which would probably never be developed anyway in exchange for more eyesores?

  6. Joe Martens says:

    Thanks to Lee Keet for the measured and thoughtful response to Peter Bauer’s diatribe against DEC. I was the “…Commissioner at the time…” and take exception to Peter’s description of the Department’s action. If his arguments were weighed by the volume of his words, we are surely damned. But suffice to say that we (meaning my staff and me) honestly believed that the NYCO amendment was necessary, that it would preserve jobs in an area where they were desperately needed and that there would be a large net benefit to the Forest Preserve. Reading Peter’s account, you would think that DEC staff worked on nothing else but the NYCO amendment. Frankly, it was one of dozens of statewide legislative priorities. We worked equally hard, to name just one, on the Township 40 amendment, a problem that no one had solved for more than a century, and we succeeded. We also added thousands of spectacularly beautify acres to the Forest Preserve, in the Adirondacks and Catskills, even though we knew that Peter Bauer would fume, fulminate, criticize and attack us for how we proposed to classify them. I could go on and on about all the good things that DEC’s fine staff did, and continues to do, to protect and preserve the Adirondacks, and the balance of the State’s natural resources from Long Island to Niagara Falls. But I’m simply no match for Peter’s angry war of words.

    • Boreas says:

      Mr. Martens,

      I personally feel you and DEC were trying to do what you felt was right at the time. My take from Peter’s article is SHOULD DEC have the ability to sway public opinion a constitutional amendment based on what they feel is right – and of so, within what constraints? Did Peter say anything that wasn’t true?

      What citizens need to do is learn from previous amendments and decide if the process is broken and determine how to fix it. I thought long and hard about whether to vote yes or no for the amendment. I ended up voting yes mostly because I live in Essex Co. And thought the promised jobs outweighed the environmental issues. I took a big swig of that snake oil.

      Snake oil can be packaged in many ways, so there needs to be safeguards in place to avoid future heavy-handedness from political bodies in pushing amendments. Buyer beware.

    • Scott van Laer scott van Laer says:

      “…large net benefit to the Forest Preserve” I don’t understand how you can honestly say that based on the proposed return for selling off that portion of wilderness. It would have been a small addition to the Forest Preserve in exchange for placing a mine in a wilderness area. The issue split the green groups and regardless of opinions, politics or calculations at the time we can now look back and clearly see which side made the correct judgement.

  7. Philip Terrie Phil Terrie says:

    The question is not whether or not the DEC accomplished a bunch of good things. It did, obviously. The question is this: did it violate the law by using state resources to advocate for something that benefited a private company? NY law stipulates that state resources “shall not be given or loaned to or in aid of any private corporation or association, or private undertaking.” In the case of this amendment, as the NYT article clearly establishes, the DEC stepped over the line. But I want to withdraw the word “corruption” from my earlier comment. I do not believe that any DEC official benefitted personally. If I seemed to suggest that, I apologize, to Joe Martens. for whom I have enormous respect, and to anyone else involved. I should not have used that word. What I meant to say is that for reasons not entirely clear–pressure from the second floor? a sincere, but incorrect, belief that it was protecting jobs?– the DEC operated outside its legal mandate. To argue that it did lots of other things is irrelevant.

  8. Hank Kinosian says:

    This deal resulted in a give-away of hundreds of millions of dollars worth of wollastonite to a huge international corporation. Why didn’t the DEC lease the mineral rights so that the resident of NY state could benefit economically from this natural resource?

    • Colvin says:

      Clearly the deal has gone south, with NYCO not upholding its part of the bargain. But it is inaccurate to say that the deal “resulted in a give-away of hundreds of millions of dollars worth of wollastonite.” In fact, it hasn’t resulted in a give-away of anything. NYCO has yet to receive anything from the State except permission to do some exploratory drilling. NYCO cannot mine the land until the legislature approves land coming into the Forest Preserve from NYCO as an exchange. The legislature may well never do this, but even if it does, the amendment says that the land coming into the Preserve has to be “equal to or greater than the value of the land to be conveyed by the State,” with a floor value of not less than $1 million. The value of the land would be based on an appraisal, and the appraisal would presumably have to be influenced by the results of the exploratory drilling. Won’t this result in an appraisal that is higher–probably considerably higher–than the value of similar acreage in the Adirondacks that does not have valuable minerals? This should mean that considerably more acreage would come into the Preserve than the acreage that NYCO would be allowed to mine. But again, the legislature may never approve a land exchange, in which case the entire deal is dead. If so, may it rest in peace.

  9. Joe Martens says:

    Thanks for your comment Boreas. There is far too many allegations in Peter’s comments to address but I will say that DEC was careful to stay within the legal guardrails that have been put in place over time. I don’t think anyone anticipated the change in ownership and management direction at NYCO and I, like many people, feel a bit duped. But I don’t regret the path we took; we made the decisions we made based on the best information we had at the time. Thanks again.

  10. Zephyr says:

    The bottom line is that the NYCO deal has proven to be the bad one many predicted. Loss of jobs, environmental destruction, misleading the public, etc. I’d like to see some who were involved reflect on what went wrong and how they will prevent it happening again instead of justifying their incorrect actions.

  11. Charlotte Hall says:

    As for any public benefit of the amendment in the form of local jobs, none had materialized as of two years ago. In fact the opposite had happened, according to a well-reported story by Jim Odato in the Adirondack Explorer in August 2018:
    “Five years ago voters changed the New York Constitution to give an Adirondack mining business the right to dig in the state Forest Preserve, in part to save local jobs. So far, it hasn’t worked out that way.

    “Since the 2013 vote, NYCO Minerals has sold its operations and assets to an industrial-minerals conglomerate called Imerys. This Paris-based company has not taken advantage of the opportunity afforded by the constitutional amendment and instead has laid off or reassigned workers at its mine in the town of Lewis, angered union representatives, and irked people concerned about the economic vibrancy of the region.”
    Has anything changed in the past two years?
    https://www.adirondackexplorer.org/stories/nyco-land-swap-has-failed-to-save-jobs

    • Boreas says:

      Capitalism and free markets have their down sides. Same with not being able to see into the future.

      • Zephyr says:

        Time and time again businesses win special breaks at taxpayer expense claiming they will bring jobs and nothing materializes. Many were predicting exactly this since there were no guarantees concerning jobs in the deal. Asking companies politely to please remember the promises made after they get the great deal never works.

        • Charlotte Hall says:

          And yes, this is why we should not be amending the New York Constitution to assist a private enterprise—even with good intentions, any benefit to the public is uncertain at best.
          .

  12. Joe Martens says:

    I want to thank Phil Terrie for his clarification regarding corruption but I have to respond to his assertion, based on a New York Times story, that DEC broke the law. DEC was perfectly within its rights to craft and advocate for a constitution amendment with the Legislature. What it cannot do is advocate for it once goes before the voters, which it did not do. The state can educate but not advocate and DEC did not step over the line, NY Times story notwithstanding. NYCO, by the way, has not gotten anything of value to date except the right to do test borings on Lot 8 to determine the quantity and quality of the wollastonite reserves. The site has not been “desecrated” and the State still owns it. I agree, btw, with many of the commenters that NYCO has not acted responsibly in the wake of the amendment and should not be given a second bite at the apple.

    • Philip Terrie Phil Terrie says:

      My thoughts on this case do not derive from the NYT article but from the evidence. I guess it all depends on how we interpret the word “educate” (funny how much disagreement and litigation follow from the inevitable uncertainty and ambiguity of language–the best Adk example is how we understand the word “timber”). There are lobbyists for the Koch brothers who deny the impact of carbon on our warming climate but claim they are merely “educating” the public.

    • Peter Bauer says:

      Joe Martens:

      Thank you for your comments.

      I’m heartened that you have looked back and feel “duped” by NYCO, though many of us saw this deal for what it was in 2012 and 2013.

      The historic record, based on materials released to the public, show that the DEC placed its very big thumb on the scale at every step of the way to boost the chances of the NYCO Amendment.

      DEC greatly assisted NYCO during the legislative reviews for First Passage in 2012 and Second Passage in 2013. I do not recall this level of DEC advocacy for any prior amendment.

      DEC’s advocacy included whipping the votes of environmental groups, in an unrelenting campaign, that was unprecedented in any DEC administration that I had witnessed in the previous 25 years. At least one environmental leader remarked at how unusual this was.

      DEC acted on behalf of NYCO with the Board of Elections. This involvement, clearly spurred on by NYCO’s lobbyists, was unprecedented.

      DEC assisted NYCO in its Vote Yes campaign, again at the behest of NYCO lobbyists.

      The hand-in-glove lobbying partnership between NYCO and the DEC, I believe, was unprecedented. I do not recall seeing the DEC actively partner with a private corporation on a lobbying campaign at any point in the last 25 years.

      If the DEC’s support for NYCO was business as usual at the DEC I’d appreciate very much if you would supply other examples of legislative campaigns that the DEC undertook for the principal benefit of one private corporation. It’s my understanding that DEC’s unusual advocacy on behalf of NYCO was the exception, not the rule. If I’m mistaken, and DEC regularly campaigned on behalf of individual private corporation, I’d be interested in seeing that list.

      Perhaps you could also help to release to the public to the rest of the materials that the DEC and Board of Elections have shielded from public review in the interest of transparency and full disclosure.

      In 2020, the good news appears to be, that there’s consensus that NYCO-style amendments should not happen again. That’s progress. The Forest Preserve deserves no less.

      Thank you.

      Peter Bauer

  13. Joseph Martens says:

    Comment forums are not the best place to conduct a dialogue but I’ll offer these parting remarks. Phil: I’m not sure what is worse, being called corrupt or being compared to the Koch brother lobbyists. Peter: Just because something is unprecedented does not mean its bad or wrong. I can’t speak to prior constitutional amendments. but DEC certainly worked just as hard on Township 40, probably harder, and although corporate entities were not involved, a lot of private landowners were and all benefitted greatly from DEC’s hard work. I was not involved in the Perkins Clearing Amendment but that is certainly an example of a private, corporate interest benefitting from a constitutionally authorized exchange of land. The public would also have benefitted if NYCO had followed through and an exchange of lands occurred. As I recall, 200 acres would have come out of the Forest Preserve and and some 1,500 acres of far superior land would have been added. Finally, I should clarify my feeling “duped” by NYCO. Poor choice of words. The company changed hands and I was extremely disappointed that the new owners did not follow through on the promises of the outgoing NYCO management.

  14. Joseph Martens says:

    I’m not a big fan of this type of forum to exchange ideas, but a few final responses. Phil: I’m not sure what’s worse, being accused of corruption or being compared to lobbyists for the koch brothers. To the latter charge, there is plenty of case law about what is education and what is advocating. DEC, as stated previously, stayed within the guard rails. If not, I’m sure we would have been battling this out in court and not in the NY Times. Peter: unprecedented does not mean bad or illegal. Yes, DEC advocated strongly with the legislature and with stakeholders because we believed the amendment would be a good deal for the people of New York, not because we believed it would be good for NYCO. Remember, if the NYCO deal came to fruition, NYCO would have had to pay NYS at least $1 million, acquire some 1,500 acres and convey it to the DEC for addition to the Forest Preserve and hand back the original 200 acres, fully reclaimed, at the end of the mine’s life. DEC worked even harder on the Township 40 amendment, which, btw, benefited hundreds of private citizens AND the people of New York. I wasn’t party to the Perkins Clearing amendment, but it benefited International Paper, a private corporation. My guess is that it would not have passed the Legislature if DEC had not advocated forcefully for it at the time. Regarding being “duped” by NYCO: poor choice of words. NYCO changed hands not long after the amendment passed and the new management never followed through on the promises made by the prior NYCO team. I didn’t see that coming. Suffice to say, I was extremely disappointed and saddened that it didn’t, but I guess I just don’t have the same clear foresight that some others claim to possess.

    • Zephyr says:

      An agreement where one side only promises to do things with no legal recourse if they don’t is a lousy agreement, particularly when it involves sums of money and valuable property. The main impetus here seems to be that NYCO promised to keep jobs in the region, with no guarantees of any sort. This was pointed out repeatedly and publicly back when the push was on to get the amendment passed. I just can’t fathom the state making agreements where they rely on promises that have nothing behind them.

    • Lee Keet says:

      Since I started this thread I will quote Teddy Roosevelt on critics: “It is not the critic who counts. … The credit belongs to the man who is actually in the arena; whose face is marred by the dust and sweat and blood; who strives valiantly … who, at worst, if he fails, at least fails while daring greatly; so that his place shall never be with those cold and timid souls who know neither victory or defeat.”

      If you were to only measure mistakes and ignore successes everyone would be a loser. NYCO was right at the time and the principles it let us develop for land swaps have passed the test of time.

      Perhaps in retrospect NYCO should have posted a performance bond, and in retrospect we should have insisted on enabling legislation with the first amendment passage, But on substance it was a good deal that failed for unanticipated subsequent events, from which we have learned.

      This has been an interesting exchange that pains me because people I admire and/or respect have made it personal and not about ideas or policy. As D J Trump would tweet, sad.

  15. Marion Weaver says:

    I’m ashamed to admit that I was one of the voters who was taken in by NYCO and the DEC’s arguments for approving the land swap for NYCO to drill test probes at the Lewis mine on state property – Lot 8. The wollastonite mines in the US are in the two eastern Adirondack mines and in Gouverneur, NY. The mineral has a great many uses, including replacing asbestos in brake and clutch linings. So I thought it would be a good idea to keep the mine open & productive.

    As to the future, DEC, bite me once, shame on you; bite me twice, shame on me. Be alerted.

  16. Joe Martens says:

    Thank you Lee. I apologize if any of my remarks seemed personal. Unfortunately the high road is the road less traveled these days. Sad indeed.

  17. Philip Terrie Phil Terrie says:

    OK: final words.

    I agree with Joe that forums like this are far from ideal for discussing serious, complicated matters. For one thing, a statement intended to be ironically hyperbolic can be taken literally.

    But what remains is this: The activities of the DEC in the process leading up to the NYCO amendment were, to put it generously, problematic. I (and many others) think they contravened state law, which forbids the use of state resources in activities that benefit a private company. Joe Martens and others think they didn’t. That’s a matter that only a court could decide, and this never went to court.

    The whole affair was a mess from the start. I, for one–and I certainly wasn’t alone–was utterly opposed. Many of us could see that the jobs argument was a thin ploy designed to save a few corporate bucks at the expense of the Forest Preserve. It set a dangerous precedent, one quite different from what occurred with Perkins Clearing. The Perkins Clearing trade was recommended by the Temporary Study Commission in 1970 and thus originated with the state as an effort to solve a problem of land management. It was not done primarily to serve the interest of a corporation (though that was an outcome). The NYCO deal, on the other hand, originated with NYCO, not the state. Hence the state was effectively doing NYCO’s bidding and not starting from a position aiming to improve its capacity to manage the Forest Preserve. The fact that the NYCO amendment didn’t turn out the way that its supporters hoped is irrelevant. Dwelling on what the state stood to receive in return for its 200 acres is also irrelevant. Article 14, section 1, of the NY Constitution is a monumentally powerful protection not just of millions of acres of trees and water but also of an idea. Fiddling with that idea, without incontrovertible benefits, solid reasoning, and strict adherence to principle, is not to be undertaken lightly. (Constitutions, of course, must be subject to revision and amendment–but seldom and only with good cause. That’s why it’s hard to do.)

    The role of the Adirondack Council in all this is equally problematic. It was one of two actions (the other was cooperating with George W. Bush to stage a bit of political theater on Whiteface in 2002) that led me to see the Council as occasionally too interested in compromise when offered a chance to rub shoulders with the powerful. When the Council endorsed the NYCO amendment, the game was lost. The New York Times cited the Council’s endorsement of the amendment when it editorialized for its passage a few days before the popular vote. This surely led many New Yorkers unfamiliar with the details to vote for it. I have it on good faith, moreover, that the Council’s decision encountered bitter objections from staff and a minority of board members, but they were overruled. The Council, of course, has been on the right side of many other issues. I remain a member.

    That’s all I have for this forum. If you want to discuss it further, email me.

  18. Joe Martens says:

    Phil: Thanks for your final comment. Just one final question, and we can certainly take this up via email. Where is the state law that “forbids the use of state resources in activities that benefit a private company”? The state constitution (Art. 7) prohibits state government from giving or loaning public money to private corporations, neither of which was done, by any stretch of the imagination, in the course of DEC’s work on the NYCO amendment.

  19. Philip Terrie Phil Terrie says:

    I said I was done, but I guess I should reply to a direct question. Article 7, section 8, of the NY constitution: “The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking.” Seems to me (and at least 2 lawyers I know) that if DEC personnel, paid employees of the state, are, on the job, actively promoting something that benefits NYCO, that means the state is using its money in aid of a corporation. But, as I said earlier, only a ruling by a NY court would be definitive.

  20. Good Camp Owner says:

    Thankful there isn’t a sixth part….

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