ELIZABETHTOWN — Court motions here have stopped NYCO Minerals from starting test mining on Lot 8 in Lewis on Thursday.
Supreme Court Justice Thomas Buchanan issued a temporary restraining order Monday, pending review of a lawsuit filed by a coalition of environmental groups charging that permits for mineral exploration on state land were granted without due environmental review process.
The Article 78 lawsuit was filed Monday morning in Essex County Supreme Court, challenging policies adopted by the State Department of Environmental Conservation, Adirondack Park Agency and NYCO Minerals.
COURT DATE SET
Exploration, tree cutting and core sampling was set to begin July 17 on an eastern slice of a 200-acre parcel of Jay Mountain Wilderness.
Test-mining operations were approved by voters in New York last November as part of Proposition 5.
Concerns at issue are temporary revocable permits and amendments to the State Land Master Plan, made in June following Proposition 5’s approval.
Dan Plumley is a partner at Adirondack Wild, one of the groups that filed suit.
“We got the restraining order,” he said after leaving court Monday. “The restraining order will prohibit NYCO from implementing the temporary revocable permit (TRP) and doing sampling until at least Aug. 22. That’s when we go back to court.
“We will be back in court to address the Article 78 proceeding, the action we filed against APA and DEC for approving the Unit Management Plan amendment and the TRP to allow mineral sampling on existing State Forest Preserve lands designated as Wilderness.”
Discussion in court Monday found a restraining order was needed because work was set to begin as early as Thursday, Plumley said.
“We’re heartened by the fact that we have the restraining order. We’re glad that we’ll be able to have our case heard.”
APA and DEC spent much of the past seven months detailing the excavation permit, which was set to unfold in three phases. Strict protocols outline how and where NYCO would test for wollastonite on state land beside its existing mines in Lewis.
At the heart of the environmental concern is the state land-use designation.
Proposition 5 granted permission for NYCO to swap 1,500 acres of private land for the 200-acre Lot 8, providing enough wollastonite is found under the property.
“This is the first time in the history of Forever Wild (constitutional provision) that the state is allowing industrial activity to take place on designated Wilderness land,” Plumley said.
“We have never had a constitutional amendment where this kind of thing has been perpetrated in advance of a land swap. This is still designated Wilderness land. It is still part of the Jay Mountain Wilderness area, the smallest wilderness area in the Adirondack Park,” Plumley said.
NYCO spokesman John Brodt said via email that the company would not be commenting on the lawsuit.
“The constitutional amendment was approved by a strong majority of New Yorkers following passage by two successive, separately elected Legislatures,” DEC spokesman Peter Constantakes told the Press-Republican via email.
“DEC is acting in accordance with the constitutional amendment. Beyond that, we do not comment on pending litigation.”
The Article 78 claims DEC and APA did not use due diligence in granting permission for NYCO, based in Willsboro, to conduct tests on State Forest Preserve land.
“This is a very, very important matter,” Plumley said of precedent-setting permits allowing industrial activity on Wilderness land.
“It’s not just about whether you stand for development, business and jobs — our lawsuit is not trying to change the result of the Proposition 5 vote. We respect the fact that Proposition 5 passed, and we see it as a horrible precedent.
“But there’s a doubly horrible precedent in the way the state is bulldozing forward, literally, to implement this action — without a full environmental impact statement, without recognition of the rare and protected species on Lot 8, without detailed inventory analysis that would be expected of any private entity looking to conduct industrial activity in the park.”
Another reason DEC’s temporary permit is being challenged, Plumley said, is that the agency isn’t following its own guidelines.
“They provide a series of laws and regulations and policies that we feel were not implicitly repealed by Proposition 5. (APA and DEC) have been saying the amendment that narrowly passed gave them the authority to implicitly repeal state law. We disagree with that 100 percent.”
Earth Justice, Adirondack Wild, Protect the Adirondacks and the Sierra Club’s Adirondack Chapter filed the lawsuit.
Their concern is being represented by nonprofit law firm Earthjustice and pro-bono co-counsel Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., based in Boston and New York City.
“The state’s theory of implicit repeal leaves APA and DEC operating in a complete legal vacuum,” lead attorney Deborah Goldberg of Earthjustice said in a statement.
“The agencies are violating numerous laws, are ignoring their own internal procedures and generally are proceeding in an entirely arbitrary and ad-hoc manner.”
The matter goes before Buchanan on Friday, Aug. 22, at State Supreme Court in Schenectady.
‘NO REASON TO RUSH’
The groups said there is no reason to rush mineral testing on Lot 8 because NYCO is also looking to expand mining at two nearby sites.
“Recently, APA held a hearing on a NYCO application to expand its existing Lewis mine by approximately 50 percent, and NYCO owns another permitted mine two miles away at Oak Hill that should be ready for full-scale mining by 2016.
“The company itself estimates these mines have at least 25 years of mineral reserves,” the environmentalists said in a news release.
The NYCO expansion hearing two weeks ago, held in Lewis, gave voice both to concern for the economic well-being of the Adirondack towns surrounding NYCO and its mines and the overall impact of all NYCO operations on forestland and area roads.
NYCO excavates and processes wollastonite, a rare mineral found only in three locations in the United States. The powder crushed from the ore strengthens ceramics, paints and plastics.
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