Wednesday, January 28, 2015

Marquette County Board, residents, environmental groups oppose Road Commission vote to sue EPA over CR 595; lawsuit funding sources undisclosed

By Michele Bourdieu

Members of the Marquette County Road Commission return from a closed session discussion of their proposed lawsuit against the Environmental Protection Agency during their Jan. 19, 2015, meeting in the Marquette Township Hall in Marquette. (Photos by Gene Champagne for Keweenaw Now)

MARQUETTE -- Two years ago the U.S. Environmental Protection Agency (EPA) refused to remove their objections to the proposed Marquette County Road 595 and the Michigan Department of Environmental Quality (DEQ) did not issue a permit for it. If built as a haul road for the Eagle Mine, it would have impacted quality wetlands and streams according to the EPA. Since then Eagle Mine has spent about $50 million improving existing roads and bridges in Marquette County and uses an approved route to haul ore from the Eagle Mine to the mill in Humboldt.

After a closed-session discussion held during their Jan. 19, 2015, meeting, the Marquette County Road Commission (MCRC) voted on a resolution to sue the EPA for what the MCRC calls the federal agency's "arbitrary and capricious decision" in objecting to the permit for CR 595. The resolution states public funds will not be used for the lawsuit, but the Road Commission would not reveal the source of private funding for the lawsuit, estimated at $500,000. This refusal to disclose funding sources led to a 3-2 vote of the Marquette County Board of Commissioners objecting to the proposed lawsuit at their own meeting the following evening, Jan. 20.

On Wednesday, Jan. 21, at a Marquette County Township's Association meeting in Negaunee Township, representatives of about half of the 19 townships voted to support the Road Commission's resolution.

Environmental groups oppose CR 595, lawsuit

The Yellow Dog Watershed Preserve (YDWP) has expressed strong opposition to the potential construction of County Road 595 and the Road Commission's projected lawsuit.

"Our misguided local road commission’s agenda does not serve the needs of citizens, only corporations and agencies who profit from this excess development at whatever cost," YDWP states on their Web site in a Jan. 26, 2015, article. "The estimated cost to construct CR595 has risen to $100 million for infrastructure that will cross 21 miles of partially hydric and hydric soil types, wildlife corridors, isolated waterways, and wetland headwaters for several major watersheds in Marquette County."*

This wetland in the proposed CR 595 corridor is one of many sensitive areas that would be impacted if the road is built. (Keweenaw Now file photo © and courtesy Jessica Koski)

On July 8, 2014, Save the Wild U.P. posted photos of bulldozing and road construction along the previously defeated CR 595 route -- at the remote headwaters of the Mulligan Creek.

"Construction along this route included multiple instances of wetlands impacts, including unpermitted culvert installation and wetlands dredging and filling, with no evidence of a Clean Water Act Section 404 permit -- a permit required by law to alter or destroy wetlands during the permitting review of the CR 595 proposal," SWUP stated in the article.**

Today Alexandra Maxwell, SWUP interim director, confirmed that article is still accurate and construction continued after July 2014.

Trees, stumps, and dirt bulldozed illegally into wetlands of Mulligan Creek. (Photo  © Kathleen Heideman and courtesy Save the Wild U.P.)

"SWUP led a hike along snowmobile trail 5 through the Mulligan Plains in September and construction had continued," Maxwell said.

Public comments for, against lawsuit resolution

Before and after the closed session at the MCRC meeting, local residents spoke both in opposition and in support of the Road Commission's potential lawsuit.

Marquette County District 2 Commissioner and former Humboldt Township Supervisor Joe Derocha, who attended all three meetings, said he and his township had supported CR 595 in the past but now, as a County commissioner, he is not supportive of the Road Commission's proposed lawsuit against the EPA.

Joe Derocha, Marquette County commissioner and former Humboldt Township supervisor (standing), addresses the Marquette County Road Commission before their closed session during their Jan. 19 meeting. Derocha stated his objections to the proposed lawsuit against the EPA, partly because of potential negative effects it could have on the EPA's present review of Humboldt Mill as a potential Superfund site. He also expressed his view that this issue should be discussed at an open public forum. 

Derocha explained his position to Keweenaw Now.

"We (Humboldt Township, when he was supervisor) fully supported the 595 permit effort and, with broad local community support for the road, we failed to acquire a permit to build the 595. It would have created many jobs and a direct link to Humboldt Township," Derocha said. "The EPA ruled and the State (DEQ) did not issue the permit. That didn't make us happy, but we have to accept it."

Derocha said he believes this is a politically driven issue.

"I am not supportive of a lawsuit against the EPA, and I feel the Road Commission has not taken into consideration the unforeseen consequences that may occur that would directly affect Marquette County and its residents," Derocha noted. "Senator Casperson and staff have lobbied the Road Commission to make this happen. He's put together a private fund of undisclosed investors."

While CR 595 was intended to be a haul road for the Eagle Mine, Lundin Mining Co., the present owner, has not stated any support for the lawsuit or interest in funding it or the building of CR 595.

"We are neither for nor against the MCRC’s decision," said Dan Blondeau, Eagle Mine senior advisor, Communications and Media Relations. "For now, our operations are dependent upon current infrastructure and our role in keeping that infrastructure sound."

Blondeau also confirmed for Keweenaw Now that Eagle Mine, as stated recently in the Marquette Mining Journal, "would not contribute to funding the lawsuit nor toward building the road should the permits be issued."

Jon Saari, Save the Wild U.P. vice president and Upper Peninsula Environmental Coalition (UPEC) treasurer, commented at the meeting that the lawsuit might not necessarily result in 595 being built. He said the road and the lawsuit are different issues and the MCRC should think about the deeper issue of the real motives for the lawsuit, where the money is coming from and why this lawsuit is of national interest.

Mary Ellen Krieg of Big Bay pointed out that what the EPA did was not unusual, since the permit application was insufficient, and the Road Commission, if they go ahead with the lawsuit, will probably have a hard time proving what the EPA did in Marquette County was not different from what they have done in other places. She also stated her objection to the MCRC spending the County's time and resources for this effort, even if they don't use public funds for the actual lawsuit.

This map, displayed at the Aug. 28, 2012, EPA public hearing on CR 595, shows the Marquette County Road Commission's proposed CR 595 (green route) and two alternative routes preferred by the EPA -- Mulligan Plains East/Sleepy Hollow (brown route) and Red Road/Sleepy Hollow (red route). (Keweenaw Now file photo)***

Joyce Iwinski of Big Bay asked the MCRC, "Who actually is funding this lawsuit?"

She did not receive an answer from the road commissioners.

Iwinski added she was appalled by the MCRC’s disregard for the environment and for her, since she relies on the EPA for environmental protection.

Mike Thibault of Ishpeming urged the MCRC to go forward with the lawsuit:

At the Jan. 19 meeting of the Marquette County Road Commission, Mike Thibault of Gwinn expresses his support for the Road Commission's intention to sue the Environmental Protection Agency for not removing their objections to the building of County Road 595 in 2013. (Videos by Gene Champagne for Keweenaw Now.)

Gene Champagne of Big Bay told the MCRC board it should consider itself lucky, along with the County Board, that it wasn’t prosecuted for filing a fraudulent permit. He noted they were opening themselves up to the possibility of taxpayer counter lawsuits.

"This issue is going to be a distraction from what your job is -- and that's maintaining our county roads, which are in very bad condition," Champagne said. "Transparency -- where's the money coming from?"

Champagne said he would like to see an alternative route but it needs to be done another way, not through this lawsuit.

"The mining company needs to file it under their permit -- and it still stands today, if it wasn't for Eagle Mine, we wouldn't be having this discussion here," Champagne noted.

The MCRC Board then went into a closed session "to consider written attorney-client communications exempt from disclosure under MCL 15.243 (1)(g) as allowed by MCL 15.268(h)" and emerged after a considerable amount of time with a resolution to sue the EPA. Here Dave Hall, MCRC Board chair, reads the resolution:

After a closed-session discussion during the Jan. 19, 2015, Marquette County Road Commission (MCRC) meeting, David Hall, MCRC chair, reads a resolution to sue the Environmental Protection Agency (EPA) for not removing their objections to the proposed County Road 595 in 2013, thus preventing permitting of the road, intended at that time to be a haul road for the Eagle Mine. See UPDATE below.

The Road Commissioners voted unanimously to approve the resolution, and a second public comment period followed.

William Malmsten of Marquette Township and UPEC said he could see no need for this road, even if it were permitted, since mining operations would be half over by the time it could be built. He expressed concerns about the source of the funding and Sen. Casperson's political agenda in pushing for the lawsuit.

Carla Champagne and Joyce Iwinski, both of Big Bay, then expressed strong concerns about the MCRC's refusal to reveal the sources of private funding:

Following the reading of the Marquette County Road Commission's resolution to sue the EPA for objecting to the building of County Road 595, two residents of Big Bay -- Carla Champagne and Joyce Iwinski -- offer reasons for their opposition to the proposed lawsuit. 

Catherine Parker of Marquette reminded the MCRC Board that DEQ and DNR (Department of Natural Resources) staff had told them some areas on the 595 route were too sensitive for road building. On the other hand, Mike Nelson of Ishpeming told the MCRC to "go for it," and put people’s lives ahead of everything else, citing recent accidents involving Lundin’s ore trucks.

Catherine Parker of Marquette and Mike Nelson of Ishpeming, Mich., express opposing views on the Marquette County Road Commission's resolution to sue the EPA for their objections to permitting the proposed County Road 595 in 2013.

In an email to concerned citizens, Parker added, "Casperson is attempting to alter the Michigan constitution to allow interest and earnings from the Natural Resources Trust Fund to be used for infrastructure directly related to natural-resource-based industries, including timber harvesting and mining."****

Keweenaw Now was unable to reach MCRC Chair Dave Hall, but we received a written public statement from him in which he indicates the lawsuit is intended to allow building CR 595 "while ensuring that no County taxpayer dollars will be spent at any point in the legal process."

The statement says County Road 595 has wide support from many community groups. While Hall bases the MCRC's resolution for the lawsuit on this "broad and overwhelming support," he does not mention any funding for CR 595. The private funding, with no sources identified, appears to be only for the lawsuit.

"Based on the diverse and overwhelming expressions of community support we continue to receive, the Commission is optimistic that private funds will be sufficiently raised to cover all the expenses of any legal process, without costing taxpayers one dime. The vote to move forward with the legal process is contingent on the availability of these private funds," Hall writes. See UPDATE below.

Marquette County Board of Commissioners votes against MCRC lawsuit resolution

On Jan. 20, at their regular monthly meeting, the Marquette County Board of Commissioners considered the Road Commission resolution to sue the EPA as a late addition to their agenda.

County Commissioner Karen Alholm (6th District) told Keweenaw Now she added the lawsuit resolution to the County Board's agenda in order to clear up a misunderstanding about her position on the issue.

"The reason I brought it up at the County Board meeting is that I was told, and I verified, that the Road Commission was under the impression I was in favor of the lawsuit," Alholm said. "My position had been misstated to the Road Commission and I wanted to correct it."

Alholm noted she was generally in favor of CR 595 because she considered it shorter and safer, but she is aware of the wetland situation and opposes the lawsuit.

"I oppose the lawsuit because the funding sources for the lawsuit have not been divulged and that lack of divulgence is contrary to my belief in governmental transparency," Alholm said. "If there is a lawsuit, the court will decide the merits of the case."

At the County Board meeting, Commissioner Derocha spoke again about the need for transparency by the Road Commission concerning the undisclosed funding sources.

County Board Chair Gerald Corkin (District 4) told Keweenaw Now that Sen. Casperson and his aide, Marty Fittante, "have been drumming up support in Marquette County over the past year to sue the EPA over the 595 ruling."

Corkin said he also had supported CR 595 in the past when Rio Tinto (owner of the Eagle Mine at the time) was going to fund building the road.

"When it wasn't permitted they spent a good amount of that money to upgrade the existing roads in Marquette County," Corkin explained. "I don't support taking transportation funds to build a road for the mining company when U.S. 41, the busiest road in Marquette County, is rough and falling apart."

Commissioners Alholm, Derocha and Corkin voted "Aye" on a County Board motion not to support the lawsuit against the EPA because of the lack of divulgence of the funding sources to the public. Commissioners Bruce Heikkila (District 3) and Bill Nordeen (District 5), who supported the proposed lawsuit, voted "Nay." Commissioner Johnny DePetro (District 1) was absent and excused. The motion passed 3-2.

Corkin told Keweenaw Now, however, that the County Board motion doesn't override the MCRC's resolution to sue the EPA. The County Board appoints the Road Commission members, but the MCRC is independent.

"It's not very smart on their part," Corkin said of the MCRC resolution to sue the EPA.

Corkin added the County Board is planning to invite the MCRC to a meeting in order to ask them for full disclosure of who is funding this lawsuit. At present the date for the meeting has not been set, but it would possibly be during the week of Feb. 9, between the next two County Board meetings. It would be open to the public.

The next meeting of the Marquette Board of Commissioners will be held at 6 p.m. on Tuesday, Feb. 3, in Room 231 of the Henry A. Skewis Courthouse Annex, Marquette.

Marquette County Townships Association members support MCRC resolution

The Marquette County Townships Association (MCTA) met on Wednesday, Jan. 21.

According to Jackie Koski, MCTA secretary, the MCRC resolution to sue the EPA was not on the MCTA agenda but came up during public comment and a discussion among the township representatives who were present. About 20 people were present, representing 9 or 10 of the 19 Marquette County townships.

Koski said the MCRC resolution was approved in a vote by the township representatives, but without a roll call.

"I think it should have been a roll call vote," Koski told Keweenaw Now.

She has contacted the townships and requested that the resolution be put on the agenda for the next MCTA meeting, scheduled for Feb. 25, when they may have a roll call vote on it. Koski is also asking all the townships to discuss the resolution at their individual meetings.

State legislators show support for CR 595 in TV interview

On Dec. 26, 2014, Upper Michigan's Source (TV6) published an interview with local U.P. state legislators -- Sen. Tom Casperson (R), 38th District; Rep. John Kivela (D), 109th District; Rep. Scott Dianda (D), 110th District; and Ed Mc Broom (R), 108th District -- on the subject of CR 595. All four expressed their support for CR 595.*****

Notes:

* Click here to read the Jan. 26, 2015, article on the Yellow Dog Watershed Preserve Web site.

** See the July 8, 2014, Save the Wild U.P. article with photos of road construction near Mulligan Creek.

*** For background on the CR 595 permit application, see our two articles on the Aug. 28, 2012, EPA Public Hearing on CR 595, including many public questions and comments on both sides of the issue: EPA Hearing on CR 595 permit: Part 1, Questions and EPA Hearing on CR 595: Part 2: Comments.

**** Click here to see Senate Bill No. 16, introduced by State Sen. Tom Casperson (R), 38th District, on Jan. 20, 2015.
Click here for Senate Joint Resolution C, also introduced by Sen. Casperson on Jan. 20, 2015.

***** See the Dec. 26, 2015, TV6 article and video, "State lawmakers discuss future of County Road 595."  Click here for the complete interview.

UPDATE: The Marquette County Road Commission's Jan. 19, 2015 resolution to sue the EPA and MCRC Board Chair Dave Hall's public statement are posted on their Web site. Click here for the text.

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