Eagle Rock near Big Bay: Administrative Law Judge Richard Patterson, in an MDEQ contested case, recommends Eagle Rock, a sacred site for Native Americans, not be used as a portal for Kennecott's proposed sulfide mine on the Yellow Dog Plains. (Photo by Keweenaw Now)MARQUETTE -- Administrative Law Judge Richard Patterson announced on Tuesday, Aug. 18, that he will uphold permits issued to Kennecott Eagle Minerals Company by the Michigan Department of Environmental Quality (MDEQ) in 2007 for the company's "Eagle Project," a nickel and copper sulfide mine on the Yellow Dog Plains, with one critical exception that could nix the project or at the very least require a major overhaul of the mining plan.
Nonetheless, the petitioners in the case will likely appeal the portions of the permits not struck down or modified. Attorneys say the contested case record provides a remarkably strong basis for appeal.
In his decision, Patterson recommended moving the mine’s portal, or entryway, from Eagle Rock, a sacred outcropping with spiritual importance to local Native American tribes. Patterson stated that Kennecott and the MDEQ "did not properly address the impact on the sacred rock outcrop known as Eagle Rock" and suggested moving the mine’s entry portal away from the rock.
Susan LaFernier, Keweenaw Bay Indian Community (KBIC) vice-president, said KBIC could not make a formal statement about the decision until the Tribal Council has time to review and discuss it.
"We're still in the process of reviewing the decision," LaFernier told Keweenaw Now today, Aug. 19. "It's 178 pages."
LaFernier spoke eloquently of the spiritual connection between Eagle Rock and the Ojibwe people at the Protect the Earth gathering at Eagle Rock on Aug. 2, 2009. More than 170 people participated in the event, which included a two-mile walk from the Yellow Dog River to Eagle Rock, Native American ceremonies and guest speakers.*
The Yellow Dog River. Opponents of the mine walked from here to Eagle Rock on Aug. 2, 2009. (Photo by Keweenaw Now)Michelle Halley, attorney for the National Wildlife Federation (NWF), said, "Kennecott has claimed for years that Eagle Rock is the only possible location for the mine’s portal. Without that option, this mine could be halted or, at the very least, require a complete overhaul of the mining plan. We are pleased that Eagle Rock will be protected, assuming MDEQ Director Steve Chester follows the judge’s recommendations on this issue."
Patterson’s decision comes in the form of a recommendation to Chester. According to law, the parties in the case will have an opportunity to file exceptions to the judge’s recommendations by submitting a written document outlining those components with which they agree or disagree. Once Chester has received the exceptions, he will issue his final decision. Chester is not obligated to follow Patterson’s recommendations.
Citing DEQ spokesperson Robert McCann, an article in the Marquette Mining Journal today, Aug. 19, said the parties in the case have 30 days to file objections to the Aug. 18 ruling, which will be reviewed by Chester before his decision is made.
While the protection of Eagle Rock is fantastic," Halley added, "it doesn’t address most of the technical deficiencies we outlined in the course of the contested case. Therefore we will almost certainly appeal the final agency decision should Director Chester adopt the judge’s recommendations on the remaining issues."
Other than quoting Michelle Halley's mention of "technical deficiencies," the Aug. 19 Mining Journal article did not mention petitioners' concerns about the safety of the mine or about the potential environmental damage acid mine drainage could do to rivers, streams and Lake Superior. The article quotes Kennecott extensively.**
Yellow Dog Summer: Judge ignores flaws in mine design
An Aug. 18 press release from Yellow Dog Summer, opponents of the mine, stated that while Judge Patterson has recommended that Kennecott not use Eagle Rock for its mine portal, he has ignored critical faults in Kennecott-Rio Tinto's application, including the very design of the mine -- faults noted by experts.
Teresa Bertossi, an organizer with Yellow Dog Summer, said, "The judge’s decision to uphold permits issued to Kennecott by the MDEQ is of little surprise. I am glad that he found one of the obvious flaws, the proposal to desecrate a sacred site of the Anishinaabe, in Kennecott’s fraudulent application. Unfortunately, he overlooked other obvious problems."
Dr. David Sainsbury, a rock mechanics expert, in his 2006 Technical Review commissioned by the MDEQ, stated as follows: "The analysis techniques used to assess the Eagle crown pillar stability do not reflect industry best-practice. In addition, the hydrologic stability of the crown pillar has not been considered. Therefore, the conclusions made within the Eagle Project Mining Permit Application regarding crown pillar subsidence are not considered to be defensible."***
Rock mechanics expert Jack Parker, author of the report, "KEMC Eagle Project: A Fraudulent Mining Permit Application," questioning the crown pillar stability and the safety of the mine, also questioned the recent decision document.
"Having read through the first fifty pages of the decision document I find numerous blatant lies, some of them critical, including that which claims that their outside experts, Sainsbury and Blake, agreed with Kennecott that the 87.5 meter crown pillar would be 'stable,'" Parker said. "Sainsbury actually said that because of the way the design process was conducted those conclusions were ‘not defensible,’ meaning not supported by fact."****
Gene Champagne, Big Bay resident, said, "The judge seemed to recognize the Tribe’s right to their sacred land. However, he didn’t address the deficiencies in the permit itself, including those that affect the safety of the mine."
NWF: Decision to permit unsafe mine violates law
The decision is the latest development in a series of legal challenges to prevent a foreign mining company with a deeply troubled environmental and human rights history from blasting a risky metallic sulfide mine beneath the Salmon Trout River in the central Upper Peninsula. Petitioners in the case are the Keweenaw Bay Indian Community, Huron Mountain Club, National Wildlife Federation and Yellow Dog Watershed Preserve.
"Ore body 150 feet down" is the title of this photo of the Salmon Trout River, which flows above the site of Kennecott Minerals' proposed sulfide mine near Marquette. The River contains a rare population of Coaster Brook Trout. (Photo © 2007 Yellow Dog Watershed Preserve and courtesy www.savethewildup.org. Reprinted with permission.)In most areas, the judge’s recommendations failed to address issues that are important to protect workers and the environment. Halley, who said she is still reviewing all of the specifics of the decision, went on to say that NWF will address its concerns in written exceptions presented to the MDEQ and ultimately through appealing Chester’s final decision if it comes to that.
"This ruling does not change our firm belief that the decision to permit this mine violates the law," said Andy Buchsbaum, regional executive director of the National Wildlife Federation’s Great Lakes Regional Center. "We remain committed to protecting the people, economy and wildlife of Michigan from this risky type of mine that has proven deadly to rivers, streams and communities in other states."
During oral arguments in the summer of 2008, NWF and its partners presented more than two dozen witnesses in a variety of technical disciplines. At the time, Halley remarked, "the testimony in this case has done nothing but demonstrate Kennecott’s substandard job in preparing the application and the slipshod review by the DEQ. Testimony at the hearing from Kennecott, MDEQ and our experts proves time and time again that the proposed mine is unsafe for humans and the environment."
Perhaps most stunning was the admission of MDEQ employee Joe Maki, leader of the mining review team that ultimately recommended approval of the mining permit. Asked under oath if he had applied mining law Part 632’s critical standard which states that the company must prove it will not pollute, impair, or destroy natural resources, Maki stated simply, "I did not." Asked if the mining review team had applied that standard, he said "I don’t believe so, no."
Should MDEQ Director Chester act on Patterson’s recommendation regarding Eagle Rock, Kennecott will remain stymied and cannot conduct mining operations until a new mining plan is submitted and approved. In addition, the U.S. Environmental Protection Agency must still decide whether the company could obtain necessary federal permits.
Editor's Notes: Thanks to the National Wildlife Federation and Yellow Dog Summer for the press releases used in this article, and to Save the Wild UP for their news updates on this issue.
*If you missed our 2-part article on the Protect the Earth workshops and Walk to Eagle Rock Aug. 1-2, click here: Protect the Earth 2009, part 1 and Part 2: Walk to Eagle Rock (includes a videoclip of Susan LaFernier's speech at Eagle Rock.)
**The Mining Journal article quotes Kennecott spokesperson Deb Muchmore and Kennecott General Manager Jon Cherry.
***To read Dr. David Sainsbury's 2006 report, click here.
**** To read Jack Parker's report, click here. See also our videoclip of Jack Parker speaking on a panel at Michigan Tech last spring.
Update: Thanks to the Lake Superior Mining News for posting the document with Judge Patterson's decision. Click here to read it in pdf format.
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