October 16, 2015
by Charles C. Morrison
On August 2, The New York Times published a story about a letter of complaint by Protect the Adirondacks! (PROTECT) addressed to several senior state officials. The letter accuses the state Department of Environmental Conservation (DEC) of violating the state constitution multiple times over several years by forming an illicit partnership with NYCO Minerals.
The inappropriate partnership enabled NYCO to prevail in the 2013 statewide referendum that amended the “forever wild” provision of the state constitution, specifically granting NYCO the right to mine Forest Preserve Wilderness land in the Adirondack Park.
The Forest Preserve was created in 1885 because wanton exploitation by commercial lumber interests, with unrestrained clear-cutting, was destroying our forests, watersheds, fish and wildlife resources and threatening the canal system. That did not stop a state-appointed forest commission from selling the Forest Preserve to the lumber companies. So in 1894, the “forever wild” clause was added to the state constitution, two years after creation of the Adirondack Park.
With their documented advocacy on behalf of NYCO’s project to purchase and exploit Forest Preserve Wilderness, the DEC and Governor Cuomo have blatantly violated, over several years, their promise to uphold the state constitution and their legally established “care and custody” responsibilities for the Forest Preserve. They have betrayed a trust and set a terrible precedent.
The constitution prohibits gifts or loans of state money to aid any private undertaking. In the past, the DEC has been careful not to cross the line between educating the public with factual information and openly advocating and lobbying for an amendment. This time they crossed the line big time.
Scores of emails obtained by PROTECT from the DEC under the Freedom of Information Law (FOIL), with many other emails withheld by the DEC as “internal” communications, clearly show that the “...DEC improperly and illegally utilized all of the machinery of state government to advocate for this amendment. DEC devoted hundreds of thousands of dollars, if not millions, in staff time to supporting the NYCO amendment.” PROTECT’s complaint was carefully researched and documented over many months.
The DEC did not act alone. Since the DEC does not make a move without the approval of Gov. Andrew Cuomo and his staff, PROTECT’s complaint is a strongly substantiated indictment of the governor’s office.
Readers may remember that Proposition 5, on the ballot in the 2013 statewide fall elections, was approved by the narrowest margin in 50 years, 53% to 47%, with over one million votes against it. Nevertheless, passage of the amendment allowed NYCO to undertake test drilling for wollastonite ore on a 200-acre parcel of Forest Preserve land in the Adirondack Park near Willsboro in the Lake Champlain Valley.
NYCO’s test drilling was completed last winter, and the DEC and NYCO are evaluating whether it is worthwhile to proceed with full-scale mining. If NYCO wants to go forward, it will need the Legislature’s final approval of the appraisal, which will establish the value of the site. That value will determine how many acres of ordinary private forest land NYCO will have to pay in compensating the state.
The land-in-payment will be added to the Jay Mountain Forest Preserve Wilderness Area. Also, if the 200-acre forever wild parcel is mined by NYCO, it must be restored and returned to the state when mining has been completed.
When voters approved the deal in the referendum, it was the first time since the creation of the “forever wild” provision in the state constitution (in 1894) that an amendment was passed primarily for the financial gain of a privately owned industrial-commercial company. NYCO hired a public relations agency (for $600,000) and spent nearly a million dollars for targeted TV ads filled with lies and half-truths. The voters were told that if the amendment did not pass, NYCO would have to shut down, fire 105 employees and leave the country. At the same time, NYCO was saying to the DEC, by email, that if the referendum failed the company would move the existing workforce to a new mine nearby.
The amendment was opposed by the Sierra Club’s Atlantic Chapter, PROTECT, Adirondack Wild, and the Atlantic States Legal Foundation, but it passed anyway. The DEC and the governor’s staff were successful in splitting the conservation organizations; the Adirondack Council (at first against the proposal) and the Adirondack Mountain Club stayed out of it. In January, 2014, the four opposing organizations became clients of EarthJustice, which unsuccessfully sued the DEC and Adirondack Park Agency (APA) over implementation of the amendment.
As stated in its July 20 letter of complaint, PROTECT’s research found six critical areas where DEC’s advocacy violated the constitution by acting for NYCO’s benefit. The letter, fully documented with excerpts from the DEC emails, reveals that the DEC:
- negotiated the terms of the constitutional amendment with NYCO and structured a draft amendment that it believed had the best chance to be approved by the voters;
- drafted and revised legislation and bill memos, and aggressively lobbied for the NYCO amendment;
- lobbied legislative leaders, committee members and chairs, and legislative staff. The DEC drafted and distributed fact sheets and talking points to assist lobbying efforts.
- pressured environmental non-profits to either support¬—or at least not oppose—the NYCO amendment, and recruited support from trade associations and unions;
- coordinated closely with NYCO, directing NYCO executives to contact and enlist the support of various legislators and other powerbrokers;
- assisted NYCO in the general election, even intervening to change the official ballot language.
While the DEC’s regulatory staff generally maintain an “arm’s length” relationship with the staff in the industries they regulate, close working relationships nevertheless flower into close professional ties and friendships. Apparently, the “revolving door” between industry and government works as well in Albany as it does in Washington, D.C.
Charles C. Morrison is a member of the Adirondack Committee of the Atlantic Chapter and a director of PROTECT. He is retired from the DEC, where he was director of natural resources planning.