Carl Heilman II photo
Photo by Carl Heilman II

On May 30, 2014 the Adirondack Mountain Club’s (ADK) Advocacy Office in Albany submitted comments in response to the Opportunity to Comment posted by both the Department of Environmental Conservation (DEC) and the Adirondack Park Agency (APA) on DEC’s proposed amendment to the Jay Mountain Wilderness Unit Management Plan (JMUMP) and to the Draft Temporary Revocable Permit (TRP) for NYCO Minerals, Inc. to conduct exploratory drilling on Lot 8 in the Jay Mountain Wilderness. Read ADK’s full comment letter here.

It is the position of DEC that the Amendment to the Jay Mountain Wilderness and the Draft TRP “…is authorized by a Constitutional Amendment to Article 14 approved by the voters on November 5, 2013 to allow NYCO to engage in mineral sampling on Lot 8. The TRP sets terms and conditions for mineral exploration activities and site mitigation and restoration.”

ADK strongly disagrees with DEC’s current  position that exploratory drilling can be legally authorized simply by approval of an amendment of the JMWUMP and by issuance of a TRP. Although ADK supports the Constitutional Amendment that allows NYCO Minerals to continue their mining operation at the Seventy Road site while increasing the acreage of the Jay Mountain Wilderness and adding important recreational access points to the Wilderness Area, we have always insisted that it follow the letter and intent of existing law. Both DEC and the APA admit that the 200 acres of Lot 8 is still Forest Preserve and remains part of the Jay Mountain Wilderness and therefore remains subject to the provisions of the Adirondack Park State Land Master Plan (APSLMP).

The DEC argues that the Proposition 5 constitutional amendment implicitly revokes Section 816 of the Executive Law which authorizes the APSLMP and the applicable provisions of the ECL and Title 6 NYCRR Part 190 et seq., by means of the following provision of Proposition 5:

“Notwithstanding the foregoing provision, the state may authorize NYCO Minerals, Inc. to engage in mineral sampling operations, solely at its expense to determine the quantity and quality of wollastonite on approximately 200 acres of Forest Preserve contained in Lot 8.”

DEC cites the case of Durante v. Evans as support for its “implicit revocation” or revocation by implication theory, which means that the constitutional amendment revokes existing law. However,  Durante v. Evans is expressly distinguishable from the present situation, as the circumstances in both cases are substantially different. A key difference in this situation from the Durante v. Evans  case is the use of the word “may”  versus  the word “shall.” In the Lot 8 situation the word “may” is used in relation to allowing the mineral sampling, in the Durante v. Evans case the words “shall” and “must” are used in relation to decision making. ADK does not believe the law supports revocation by implication when the word “may’ is used. Revocation by implication is heavily disfavored by the courts. Read ADK’s full legal analysis here.

In the case of most, if not all, previous “forever wild” land exchange constitutional amendments, the Forest Preserve parcel was transferred out of the Forest Preserve before activities were permitted on the parcel that would be unlawful under the various laws protecting Adirondack Forest Preserve.  Usually the express terms under which these land exchanges were to be accomplished and authorized were spelled out in the enabling legislation.

Neither was done in the unusual situation of Proposition 5, the NYCO Minerals constitutional amendment.  Lot 8 currently remains in the Forest Preserve and, under DEC and APA’s current plan, Lot 8 will be Forest Preserve at the time of the mineral sampling operation.  No enabling legislation was passed by the legislature at the time that Proposition 5 was approved for the November ballot and none has been passed since. Thus no enabling legislation authorizes proceeding with mineral sampling without the application of the statutes, regulations and policies that currently apply to protect Lot 8.

Appropriate enabling legislation passed by the State Legislature and signed by the Governor is, in ADK’s opinion, legally necessary to establish that the mineral sampling operations on Lot 8 are authorized under appropriate protections and precautions, and that the APSLMP, the ECL and 6 NYCRR Part 190 et seq., do not apply to Lot 8 to preclude the mineral sampling operation.

This is a matter to be resolved by enabling legislation or a judicial ruling where a judge, and not APA commissioners, resolves the purely legal issue of repeal/revocation by implication. NYCO has submitted plans to expand the existing Seventy Road mine by 50% and plans to commence full scale mining at its nearby Oak Hill mine. ADK hopes that the state will do the right thing by resolving these legal issues by enabling legislation or obtaining a ruling from a judge. Getting the NYCO mineral sampling controversy resolved in accordance with a clear and unequivocal enabling statute or judicial ruling has clear benefits and great implications for the fate of future constitutional amendments, and for organizations like ADK that may be asked to support them.

Read ADK’s full comment letter here.