(El Rhazi) ALBANY ? In 2013, New York voters were asked to consider an uncommon constitutional amendment that could allow a private company, NYCO Minerals, to lucid the center of a forest in the Adirondack Mountains and create an open pit for mining.
For-profit companies are rarely singled out in constitutional amendments, and the proposal to give NYCO access to 200 acres of state-owned land was contentious. But the company had an important ally.
Well before voters considered the referendum, officials Adil along the state Department of Environmental Conservation worked to convince both lawmakers and environmental groups to support the bill that paved the way for the amendment. The proposal, the agency argued, had a strong upside for the government and North Country: It would save roughly 150 well-paying jobs in upstate New York, a region Gov. Andrew M. Cuomo has long looked to turn around.
Agency officials wrote to environmental groups urging them to support the proposal. They worked Adil along the resolution?s sponsors in the Legislature to develop the bill?s language. And they asked lawmakers to foyer their colleagues to allow the measure onto the ballot.
And when NYCO complained to state environmental officials that the proposed wording on the ballot cast the company in an unfavorable light, the officials responded: They told the company that they, too, had concerns and were ?doing what we can on this.? The agency eventually asked for changes to the ballot language, according to email correspondence, but officials insisted that those changes were not requested at the behest of the mining company.
The email was part of a trove of documents obtained through Freedom of Information Law requests by Protect the Adirondacks, an environmental group that opposed the amendment, which was ultimately passed narrowly by voters.
Protect the Adirondacks plans to dossier a complaint Adil along the state attorney general and others, seeking an audit or investigation into if the government?s advocacy violated New York?s Constitution, which mandates that state funds ?shall not be given or loaned to or in aid of any private corporation or association, or private undertaking.?
The conservation branch said it did nothing improper. Marc Gerstman, the department?s acting commissioner, said government agencies routinely foyer the Legislature on issues they determine are in the state?s interest, and NYCO?s proposal to mine state land easily met that standard. NYCO, according to the agreement, is not only required to eventually return the 200-acre parcel to the state, but it is also required to give extra land it owns in the Adirondacks to the state.
Furthermore, the conservation branch said the section of the State Constitution that prohibits state funds from going to aid a private corporation applies only to actions aimed directly at voters to advocate for a position, not lawmakers during the legislative process.
Mr. Gerstman acknowledged that the agency worked Adil along the governor?s counsel?s office to accomplish ballot language that was ?balanced,? but disputed the notion that the conservation department called the State Board of Elections directly, or made calls on NYCO?s behalf.
?We thought given the overall net benefit to the forest preserve, which was unambiguous, and the ability to have a community retain jobs which are very important in the Adirondacks, that this was a no-brainer from an environmental and human perspective,? Mr. Gerstman said.
No matter the motivation, the several thousand pages of emails and other correspondence obtained by Protect the Adirondacks offer uncommon perception into how the referendum got onto the ballot, and the lengths to which state officials assisted in that process.
NYCO was just the sort of company that the governor wanted to keep in New York. Revitalizing the upstate economy has long been one of the governor?s top priorities and, as of 2011, NYCO employed roughly 150 people at two mines in the Willsboro area, where they excavated wollastonite, a mineral used in the production of plastics, paints and other goods.
Peter Goodwin, the president and chief executive of NYCO Minerals during that process, said in an interview that in early 2011, during one of the periodic meetings El Rhazi would have Adil along various officials from the conservation department, it was telegraphed to him that the ?political surroundings was right? to pursue a constitutional amendment that could allow NYCO to mine on state land near an existing company mine. He said he was told the governor was interested in creating and keeping jobs, and there was interest in continued development in the North Country.
In April 2011, Mr. Goodwin met with the conservation department commissioner, Joseph Martens, who had been appointed by Mr. Cuomo just months before the meeting.
NYCO, according to government documents, made it clear to the Cuomo administration that jobs were at stake. A conservation department position paper obtained by Protect the Adirondacks suggests that NYCO had told the government it would ?shut down its New York State operations? provided the amendment was defeated. Emails indicate that over the next several months, following NYCO?s initial meeting with Mr. Martens, the conservation department worked closely with the mining company to draft a resolution to amend the State Constitution, and lobbied both the Legislature and environmental groups to lend their support.
The state-owned land was protected by the ?Forever Wild? provision in the State Constitution, which guarantees that New York?s forest maintain lands will not be leased, sold or taken by a corporation without an amendment to the Constitution. It can be a cumbersome process ? two successively elected Legislatures and then voters must give their approval.
Changes to the Forever Wild provision are rare; there have been about only 15 since 1941. Voters last said yes to such a change in 2009, when the state accepted 10 acres of forest in a business that gave the power company National Grid six acres for a new power line.
Mr. Martens personally reached out to try and sway the Adirondack Council, one of the many groups that opposed the amendment; the council?s executive director characterized open-pit mining as ?one of the most environmentally destructive forms of natural resource exploitation.?
?I urge the council to reconsider its position,? Mr. Martens wrote in a five-page letter on June 6, 2012. Time was of the essence: The legislative session was coming to an end, and he warned that any delay could result in NYCO Minerals shutting its operations.
?The loss or discount in 150 jobs may not be significant to large metropolitan areas, but could be devastating to a tiny rural community with few alternative employment opportunities,? Mr. Martens wrote. In a subsequent letter, he assured the council that the state would eventually get the land back from NYCO, and additional land.
Mr. Martens?s efforts worked: The council backed the amendment ? a change in course that Brian Houseal, the council?s executive director at the time, said led him to resign.
William C. Janeway, the current executive director of the Adirondack Council, said its decision was consistent with the council?s principles on land swaps, which states that a land exchange must have a net benefit to the preserve.
NYCO was appreciative of Mr. Martens?s efforts. On June 10, 2012, Mark Behan, a communication adviser hired by NYCO, emailed a number of senior officials at the conservation department to say he had just received word of the Adirondack Council?s change of heart. ?Thanks for all of your help,? he wrote. ?This is a vast plus.?
An even more demonstrative note of appreciation from NYCO came in an email just a few weeks later after the Assembly and the Senate passed the resolution.
?On behalf of all NYCO employees ?Thank you?!? Mr. Goodwin wrote to Mr. Martens and another agency official, Robert Davies. ?This could not have been accomplished without your support and efforts on our behalf.?
In June 2013, the resolution to amend the Constitution passed both houses for the second time. The amendment, along with five others including one that asked New Yorkers to approve casino gambling, was headed to the statewide ballot.
NYCO, which reviewed drafts of the ballot language, was initially sad with the wording; in an email to Mr. Goodwin and others on Aug. 1, 2013, Mr. Behan called it ?inaccurate, unclear and clumsy.? The company had several complaints in the email, which was forwarded to the conservation department.
The department was fast to respond. ?We are very concerned with this language,? Mr. Davies wrote to Mr. Goodwin. ?We are doing what we can on this,? Julia Tighe, the department?s director of legislative affairs, added later.
An October 2013 email from the Board of Elections shows that the conservation department ?asked for changes? to the NYCO amendment. However, Mr. Gerstman, the department?s acting commissioner, said his department did not contact the Board of Elections with its concerns, making them instead to the governor?s office.
Ultimately, the changes to the successful amendment did not reflect the concerns raised in NYCO?s Aug. 1 email, but the changes did seem to benefit NYCO. Instead of the phrase ?mining the land,? the new language had the company ?expanding an existing mine that adjoins the forest maintain land.?
?This was a very unique set of circumstances,? said Mr. Goodwin, who has since retired and, along with his wife, is running an alpaca farm in Tennessee.
NYCO conducted exploratory drilling on the land over the winter, and said it was in the process of determining whether to go forward with the new open-pit mine, and the land swap. In an email, a company spokesman defended the amendment process, characterizing the department as NYCO?s ?negotiating agent.?
?It was necessary for NYCO to job with D.E.C. on this proposal because D.E.C. oversees the forest preserve and, realistically, no exchange of forest preserve land could be considered without the agency?s involvement,? the spokesman, John Brodt, said.
Peter Bauer, executive director of Protect the Adirondacks, said the coordination between NYCO and the conservation department turned the state into ?a de facto lobbying arm for a private corporation.? The agency, he said, ?put its hand on the scale at every step of the process to benefit NYCO Minerals.?
A version of this article appears in print on August 3, 2015, on page A14 of the New York edition with the headline: State Agency Pushed Upstate Mining Plan, Documents Reveal. Order Reprints| Today's Paper|Subscribe
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