Standing Firm In Difficult Times: Fishkill Ridge Community Heritage Update Report
RE: Thalle Mine Expansion

“Take Care how you place your moccasins upon the earth... for the faces of future generations are looking up from the earth, waiting their turn for life”
-Chief Oren Lyons, Faithkeeper of the Turtle Clan, Onondaga Council of Chiefs of the Hau de no sau nee (ho dee noe sho nee), of the Onondaga Nation.

"A politician can't be right too early!"
- Governor George Romney. Intended to have a double meaning: 1. It's a good thing for a politician to be right as soon as possible and 2. If a politician is right before the public is ready to hear the truth and says so, she'll have the satisfaction of being right, but will very quickly be voted right out of office. Romney thought it was better to wait until the public finally discovers the truth on its own before saying anything.

"Scenic Hudson - A Private Land Trust and Developer"

Scenic Hudson’s Peculiar Role:
Scenic Hudson, Inc., a private land trust and developer based in Poughkeepsie, New York, is responsible for generating many of the problems inherent in this situation. Perhaps the strangest part of this matter has been Scenic Hudson’s peculiar role in it. Scenic Hudson appears to have withdrawn its objections to the mine expansion in return for a commitment from Thalle Industries to make some cosmetic changes to the mine face, however the proposed changes will do little to mitigate the mine's adverse ecological and visual impacts. In apparent consequence to such an agreement, Scenic Hudson, Inc. has used its considerable power and influence to indirectly “win” the right to dismiss the issue of harm to the Eastern Timber Rattlesnake, by agreeing not to pursue the issue. This not only allows Thalle Mine to continue, but to expand its business of destroying a unique ecosystem for private gain by hauling it away in truckloads over the next 40 years. If this is a “win” for Scenic Hudson, it was purchased at a very high price, since their part in this phyrric victory will be remembered within the Hudson Valley for many generations to come.

The word “trust” is not without meaning. “Trust” by its very nature implies a lower level of accountability and scrutiny; it implies the presence of conscience and values that reduce the need for external monitoring and controls.

The Hudson River Sloop Clearwater, Inc. is an outstanding example of a trustworthy group. Like Scenic Hudson, Inc., it too is a private corporation. Clearwater’s membership consists of a broad spectrum of the population, making it difficult to predict its response to specific issues. However no one is in doubt about the importance of the sometimes vague, often unstated but ever present “Clearwater Values” to the success of the organization. Clearwater ascribes the highest importance to ethics and justice.

General Electric is also a private corporation. Unlike Clearwater, GE has extraordinary wealth, power, and resources at its command. Like Clearwater, GE has the capacity to create well-equipped programs and classes concerning the environment. But even though all this is true, as long as Clearwater maintains its values, GE will always be outstripped by Clearwater’s humblest effort! In Science as in Life, the difference is all in the values.

Misguided Sense of Loyalty:
One of the difficulties in the situation is a misguided sense of what it means to be “loyal” within the environmental movement. As might be expected, environmental organizations tend not to criticize one another. Criticism from outside the movement is expected, but not taken very seriously. Even the most outrageous conduct on the part of an environmental organization is accepted by other environmental organizations without criticism.

There may be merit in unconditional acceptance, but a mirror that tells lies and says your hat’s on straight when it isn’t, isn’t of much use. We need more honest mirrors within the environmental movement.

Scenic Hudson can be justly proud of the role it has played in establishing the right of citizens to participate in legal proceedings that affect the environment. Because of Scenic Hudson’s participation in the historic Storm King decision, citizen’s groups affected by the environmental impacts of a proposed project now have a legal right, or “standing,” to challenge proposed activities that might compromise the environment, including the impacts on natural or scenic beauty and to the historic fabric of the site in question.

At the time of the Storm King decision, Scenic Hudson was an activist organization. Unlike politicians who desire reelection, Scenic Hudson could afford to be “right too early.” They were a private organization and they weren’t running for anything. As a result of striving to do the right thing, Scenic Hudson has found itself in a position to assume by default many of the responsibilities of planning and decision-making that ought properly to reside with government.

Scenic Hudson’s historic role has been to function in that vacuum left by government’s failure to properly discharge its mandated responsibilities.

At best, Scenic Hudson has performed as a quasi-public institution doing for government what government has been unable to do for itself.

At worst, Scenic Hudson represents privatization of government, opening the possibility of using privatization as a means of evading the higher standard of accountability to which democratic government would be held.

Scenic Hudson’s position that the protection of the Eastern Timber Rattlesnake should be different for two mines separated by only a few thousand feet must raise serious questions. The situation becomes all the more absurd because in order to take this position Scenic Hudson must reject the advice of Dr. William S. Brown. Dr. Brown is the same expert herpetology witness who advised Scenic Hudson in a similar manner regarding protection of the very same snakes in the matter of the permitting the Sour Mountain Mine.

In fact, Scenic Hudson doesn’t need to actively take a position; but simply support the position taken by the DEC opposing Dr. Brown. Strange, since in the past the DEC agreed with Dr. Brown regarding the protection of snakes on the Bald Hill property owned by Sour Mountain Realty. Nevertheless, the Administrative Law Judge employed by the DEC chose not to grant Dr. Brown's request to testify in person in the Thalle Mine matter.

Dr. Brown's in person testimony was denied because it would have extended the hearing by an entire day. Of course, the mining is irreversible and will take place over decades, but a single day was considered too much to add to the deliberations regarding whether mining should be done at all.

If our state government were entirely functional, specifically, if the NYSDEC were properly staffed and funded and if its mandates were revised to eliminate conflicts of interest, we might find the services of Scenic Hudson are not needed at all. Many persons now employed at Scenic Hudson might then return to the roles they formerly filled within government, including the jobs some once held within various Departments of Environmental Conservation. Others might wish to seek employment within industries in whose behalf they advocate at present, such as Thalle Industries, Inc.

The first question that comes to mind regarding Scenic Hudson’s conduct in the matter of the expansion of Thalle Mine is simply “Why?

In fact, we're not likely to find out. Scenic Hudson, Inc. is a private corporation and under no more obligation to disclose what they’re doing or why they're doing it than any other private corporation. They may choose to be accountable to the public as they see fit, but unlike a branch of government, they are under limited obligation to account for their actions and are rarely called upon to do so.

Why would Scenic Hudson risk their reputation in the very community where they and their participants have so many opportunities in their dual role as a land trust and a developer? Why did they oppose the Montfort Mine proposal while supporting Thalle Mine’s proposal to expand? What right or mandate does Scenic Hudson have beyond the right or mandate of any other organization to decide what is best for the public interest? Does power and reputation make them more equal than others?

These questions have been raised before by those who seek to favor industry by doing away with all environmental regulations. This time they’re being asked by another environmental organization in behalf of that part of the ecosystem that can’t speak to defend itself.

Finally, and most of all, we ask these questions in behalf of our posterity.

Back to the 1840’s:
There were those who were apparently miffed because we were undeterred by the expenses that were supposed to exclude us from participation in the issues conference concerning the Thalle Mine expansion. One individual went so far as to remark within the context of a legal brief that Fishkill Ridge Community Heritage was well represented by an environmental attorney and an engineering firm, as though Thalle Industries, Inc. were somehow abused thereby. The fact we were present and prepared to do business at the issues conference was considered remarkable. However, the presence of two Scenic Hudson attorneys, presumably representing Scenic Hudson, but also in support of Thalle Industries, drew no special comment. Our “opposition” made it plain they did not expect Fishkill Ridge Community Heritage to be able to afford to be there.

Because Scenic Hudson owns property nearby and presumably could have qualified for party status had they chosen to participate, the Administrative Law Judge granted Scenic Hudson an exception from the burden of conforming to the rules governing party status. Scenic Hudson was permitted the luxury of being present throughout the proceedings with the understanding they would only become active and full participants in the conference if and when they wished. It was a deal that would have satisfied the feudal lord of any Hudson Valley manor back in the 1840’s when feudal manors were still legal in the Hudson Valley.

Scenic Hudson’s attorneys sat in grand silence as our opposition questioned our right to party status in the conference, fully enforcing the very rules for obtaining party status from which Scenic Hudson had just been exempted. Scenic Hudson has come a long way in absolutely the wrong direction since the days when they first advocated the right of citizens to have standing in environmental issues.

Should a Charity Focus on Suffering or its Causes?
What could be more noble than feeding the hungry? And yet there’s a dark side to the problem, a side of the issue the volunteers who run soup kitchens must confront on a daily basis: When you feed the hungry in a community, are you really helping or are you adding to the problem?

If government is doing something that creates large numbers of poor, they need to change what they’re doing to correct the problem. On the other hand, if the same hungry people are being fed by a charity, the symptom vanishes and there is no need for government to mend its ways. Is the soup kitchen enabling government mismanagement by making it possible for them to avoid having to abolish the causes of hunger? Or is the soup kitchen doing enough by providing immediate compassionate response to relieve the very real suffering of the hungry? Since the government depends upon the soup kitchen to provide a service the government deems necessary and since the government is subsidizing the soup kitchen with taxpayer dollars in as much as not for profits are tax exempt, does that amount to making the soup kitchen a quasi-governmental agency?

Is Scenic Hudson a Quasi-governmental Agency?
If we did away with the well-intentioned helping organization, would it become easier to see the deficiencies of government that made us depend on the helping organization in the first place? Might we not be better off by insisting we receive the quality of government we’re paying for?

When Scenic Hudson creates a park, does it create the park because elected democratic government is incapable of exercising appropriate stewardship over our natural resources? Is a functioning democracy grounded in the guiding principles set forth in the Constitution and the Bill of Rights not capable of managing and enhancing the lands we hold in trust for our posterity? Should a democratic, self governing and free people need to depend on an aristocracy, real or self appointed, to oversee us as parents might oversee children? At very least, if we need to publicly fund aristocrats by granting them a tax free, not for profit status, should they not be elected and accountable to the people?

At the same time, how are we to protect ourselves, and our environment, from a tyranny of the majority? It’s an old issue stated most eloquently by Heinrich Ibsen in his great play “An Enemy of the People,” written in Norway in 1882. In the play Ibsen raises the question as to whether democracy’s heavy reliance on majority decisions can ever produce the correct result, since the majority is always ready to settle for the easy answers offered by demagogues. Ibsen’s conclusion is that solutions always come from individuals and small groups who are the first to conceive them. So far; so good. But the catch comes here: Ibsen depends on the heroism and intelligence of these individuals to be enough to make the difference and to enlighten society. He doesn’t seem to realize that democracy is all about coming together as equal people, in an atmosphere of mutual respect, willing to share decision making and willing to take personal responsibility for the decisions made.

It can be true that before many come to know something, one person must know it. But then that one person MUST share that knowledge with others, or it dies with that individual. The principled democratic process is all about that sharing. The principled democratic process has been part of numerous major success stories in the American experience, from Edison’s laboratory in Menlo Park to Benjamin Franklin’s “Junto” in Philadelphia.

At the same time we are a democratic nation, but only up to a point. When something goes wrong, there are those who call for more democracy, while others cry out to appoint a “Czar,” someone with special authority who is empowered to solve the problem.

The “land trust” occupies a place somewhere between the “Czar” solution and the “soup kitchen” approach. The underlying assumption is that the land trust is a great asset, if not completely necessary for government to address the problems. Quasi-governmental organizations create quasi-democratic processes. They become adept at “creating mechanisms” to “allow for feedback” and “for public participation in the process.” In practice, they’re not much better or worse than elected government in going through the motions of democracy. The major difference: as a private corporation, their accountability to the public is limited. Are they accountable on a voluntary basis? Here you are left to guess, because you already know as much as you’re entitled to know.

Government versus Private Interests:
There is a problem in drawing the line between government and private interests. For example, a government employee would be wrong to use information obtained while negotiating public parkland to advance a personal or private investment based on advanced knowledge of that privileged information. Not nearly as clear is the privilege of information obtained by a private party in dealing with another private party on the subject of parkland. Would it be possible to initiate a government land acquisition among private parties, deliberately delaying government involvement until private parties have had the opportunity to profit from that advance information?

Did Beacon Need Scenic Hudson?
Given the general trends of growth and change, would Beacon have changed in the same direction without the participation of Scenic Hudson? Or did Scenic Hudson just happen to be in place when the inevitable growth spike occurred? We’ll never know, but it seems likely the pattern of growth occurring throughout the Hudson Valley would have occurred in Beacon as well. It also seems democratically elected local government may have presided over change as well or better than a private, self-selected group of expert consultants, however well intended.

Good Deeds, However Numerous:
Good deeds, however numerous, do not entitle the doer to a free pass to do wrong. It is wrong on the part of Scenic Hudson to advocate for mining within the context of this historic and environmentally sensitive area long noted for its beauty and unique culture. Scenic Hudson takes credit for the fact that Thalle Industries has agreed to clean up the destruction they cause by mining. This “beautification benefit” rationale offered by Scenic Hudson provides mighty thin soup in exchange for the destruction of an irreplaceable ecosystem.

When Jay Montfort’s Sour Mountain Realty wanted to create a mine directly across the road from the Thalle Mine, a search was made until the rattlesnakes everyone knew were there were found.

Scenic Hudson takes credit for the actions that have led to the present impasse. This impasse has, for the time being, prevented Sour Mountain Realty from proceeding with the creation of their proposed mine. The issue is far from being a dead letter. Scenic Hudson has opened the door for Sour Mountain Realty by advocating in favor of the mine directly across the street.

Scenic Hudson’s Rationale for Increasing the Size of Thalle Mine:
The rationale for Scenic Hudson’s advice to Thalle Mine regarding the proposed expansion appears to have been based on the idea that land already mined could be “reclaimed.” The unique ecosystem destroyed by mining can never be recreated or restored to its original state.

“Reclamation” would include expanding the size of the area now mined to allow the proper distance for the “stepping” of the terraces while adding a few more truckloads to the profitability of the mine. “Reclaimed” in this case principally consists of beautification by means of planting trees on “stepped” areas.

By following Scenic Hudson‘s suggestions, “Expansion” and “Destruction” could in effect be masked as “Reclamation,” a word with a far more pleasant sound.

Scenic Hudson has had a private relationship with Thalle Mine over the past seven years. Such relationships are sometimes referred to as “partnering.“

Since both Scenic Hudson and Thalle Mine are private corporations, they are under a limited obligation to share the contents of any agreements or business they might have with the public, quite unlike the full public disclosure required of government. It is our understanding from what they have chosen to share that Scenic Hudson will continue to support their mining operation and Thalle Mine will adopt Scenic Hudson’s version of an acceptable (to Scenic Hudson) clean as you go policy with a final clean up at the end. It would be strange indeed if the public actually needs Scenic Hudson or any other private organization to negotiate for the public or to oversee Thalle Mine’s responsibility to clean up the destruction left by mining!