by Charles C. Morrison
The Atlantic Chapter has two lawsuits in progress in the Adirondack Park. One concerns “Lot 8,” a 200-acre Forest Preserve parcel in the Jay Mountain Wilderness Area of the Champlain Valley. Readers may recall that this parcel was the subject of an amendment to Article 14 of the State Constitution, the “forever wild” provision, on the ballot last November as Proposal 5. It allowed a private company, NYCO Minerals, Inc. to expand its existing wollastonite mine into this State land.
Despite strong opposition by several environmental organizations, including the Sierra Club, the amendment passed 53-47%, allowing NYCO as a first step to undertake test drilling to determine if the quantity and quality of the mineral warrants fullscale open pit mining. If NYCO goes ahead, the company would submit an appraisal of Lot 8, including forestland value and mineral value, to the state Legislature. This would be a basis for determining how much NYCO should pay for Lot 8 with acres of private forestland to be added to the Forest Preserve.
This is not a “land swap” in the usual sense where, as in the past, all of the rules were established in advance by the state Legislature. One of the loose ends is that while test drilling is in progress, Lot 8 it is still Forest Preserve, subject to all of the protections afforded in state law.
The problem is that in implementing the test drilling the Adirondack Park Agency (APA) and NYS Department of Environmental Conservation (DEC) have chosen to obey some state laws but not others. For example, they have bypassed an adequate review under the State Environmental Quality Review Act and completely ignored the need to amend the Adirondack State Land Master Plan.
To allow this to become normal procedure without objection would greatly undermine Forest Preserve protection. Another major issue is that DEC drastically undervalued the natural resources of Lot 8, which was acquired as tax sale land added to the Forest Preserve in 1885. The diverse forest there now is nearly “old growth,” rich in ecological values.
APA cherry-picks the law
Since last January, the Sierra Club, represented pro bono by Deborah Goldberg of the New York City office of Earthjustice, the national not-forprofit environmental law firm, has been telling APA and DEC that they must obey all of the applicable state laws, not just those that they feel like obeying. Mintz Levin, et al., a New York law firm is partnering, pro bono, with Earthjustice. Also, besides the Atlantic Chapter there are three other clients—Adirondack Wild: Friends of the Forest Preserve, Protect the Adirondacks! and the Atlantic States Legal Foundation.
Despite strong efforts to obtain compliance from APA and DEC, these state agencies, under direction of Governor Cuomo’s staff, have issued their approvals for the test drilling. However, on July 14, our attorneys filed in Essex County State Supreme Court and obtained a temporary restraining order to prevent NYCO from proceeding with test drilling. Oral arguments will soon be heard in Schenectady County Supreme Court, where a request will be made for a preliminary injunction against NYCO while the case is in progress.
A good outcome would be that DEC and APA would be required to start the process over, this time obeying all applicable state laws, and to re-study the resource values Lot 8. There is plenty of time to do this, as NYCO has decades of reserve ore deposits to mine and has just applied to the state to greatly expand its existing mine next to Lot 8 and a nearby mine at Oakhill—facts that NYCO withheld from the voting public last November when they said they soon would be out of ore, would have to dismiss all 105 employees and go out of business, unless they obtained Lot 8.
6,235-acre mega resort
The other case, managed by John Caffry of the Glens Falls law firm of Caffry and Flower for the Sierra Club, Protect the Adirondacks! and a neighboring landowner, concerns the Adirondack Club and Resort (ACR), a mixed use development proposed for the mountain slopes overlooking the Village of Tupper Lake.
At 6,235 acres this is the largest project ever proposed in the six million-acre Adirondack Park. Of particular concern is that on 4,700 acres the project would carve up resource management area (RMA) land with a sprawl of 80 “great camps.” RMA land, the lowest density land category for private land under the state’s ecologically-based zoning in the park, constitutes the basic “open space” fabric of the park. If that goes, there goes the park as we know it! Clustering was rejected by the developer and not required by APA.
The developer’s project application was first submitted to APA in 2004 and accepted as complete in 2006. Subsequently, APA began an extremely drawn out adjudicatory public hearing, after which APA approved the project and the current legal action began. Through a technicality in legal procedure the Sierra Club and PROTECT were able to take the case directly to the Appellate Division of the State Supreme Court, Third Department, Albany, skipping the trial court (a.k.a. the State Supreme Court) at the county level. On July 3, the Appellate Division rejected the arguments of the Sierra Club and PROTECT.
We strongly disagree with the Appellate Court decision in several respects and decided in July to ask permission to appeal to the state’s highest court, the State Court of Appeals. Among other errors, the Sierra Club and PROTECT believe that the Appellate Court failed to uphold APA Act requirements with regard to the RMA land. Also, the court erred in its holding that the Park Land Use and Development Plan (for the private land) is mere guidance and is not binding on the APA, despite the plain language of the act to the contrary. If not overturned, this error reverses 40 years of legal practice at the APA. Correcting such errors is essential to the future of the Adirondack Park.
As a first course of action, the Sierra Club and PROTECT! have filed a motion with the Appellate Division asking for permission to appeal to the Court of Appeals. If the motion is denied, applicable legal procedure allows the plaintiffs to send such a motion directly to the Court of Appeals. It is expected to take up to six months to get an answer. If the answer is positive, the actual appeal then will begin. Meanwhile, the ACR developers still have to get permits from DEC and the US Army Corps of Engineers.
What you can do:
Donate online, or send a check payable to the “Sierra Club Foundation” and write on the memo line, “Adirondack Defense Fund.” Send your contribution to: Sierra Club Atlantic Chapter, 353 Hamilton Street, Albany, NY 12210
Charles Morrison, the former director of natural resources planning for DEC, is a member of the Chapter’s Adirondack Committee.