Wednesday, March 18, 2015

Native American groups seek injunction against MDNR on Graymont land transfer proposal

By Michele Bourdieu

This wetland near Rexton, Mich. is within the area of the proposed Graymont limestone mining project -- an area that includes fragile wetlands and critical ecosystems. The proposed project is also within Native American ceded territory, which is under an 1836 Treaty that guarantees Native hunting, fishing and gathering rights. (Photo © and courtesy Steve Garske)

MARQUETTE, GRAND RAPIDS -- A group of American Indians from northern Michigan filed for an injunction today in federal court in Grand Rapids seeking to bar the Director of Michigan's Department of Natural Resources (MDNR), Keith Craegh, from approving a land transfer to Graymont Mining Company. If approved, the land transfer would be the largest transfer of land out of the public domain in Michigan's history -- over 11,000 acres would be affected.

According to the lead Plaintiff, Dr. Phil Bellfy, "The land subject to transfer is wholly within the 1836 Treaty of Washington Ceded Territory and subject to the conditions laid out in the 2007 Inland Consent Decree. It would be unconstitutional for the MDNR Director to transfer those lands as we -- American Indians -- have Treaty rights to "the usual privileges of occupancy" on those 11,000 acres. We are asking the Court to step in and preserve our Treaty rights and enjoin Mr. Craegh from transferring that land."

The phrase "the usual privileges of occupancy" is taken from Article XIII of the 1836 Treaty of Washington, and the extent of those "Article XIII Rights" was "conclusively resolved" by the 2007 Inland Consent Decree.

According to Idle No More, "Virtually all 'Land Cession' Treaties throughout the Upper Great Lakes region retain the right to hunt, fish, and gather on 'public lands.' The Courts have upheld these rights. Based on the language of the 1836 Treaty, for example, the 2007 Inland Consent Decree "is intended to resolve conclusively [Treaty Right] claims, and to provide for the protection of the resources in the 1836 Ceded Territory."*

Click here for the EX-PARTE MOTION FOR PRELIMINARY INJUNCTION WITH SUPPORTING BRIEF.

Concerned groups, citizens write to MDNR Chief

"A foreign mining company wants to buy 10,000 acres of our public land?" said Kathleen Heideman, SWUP president. "By my calculation, that’s ten thousand great reasons to reject the deal." (Image courtesy Save the Wild U.P.)

A February 27, 2015, a collective letter of opposition from concerned groups and citizens in the Upper Peninsula to MDNR Chief Craegh urges him to reject the Graymont proposal.

"The Michigan Department of Natural Resources must manage and conserve public lands for public benefit," the letter states. "The Graymont proposal includes lands currently open to the public for hunting and recreational trails, lands supporting wildlife, and land managed for timber -- contiguous forest lands considered some of the most productive forest land in the Eastern Upper Peninsula."

This sale of public land to benefit a foreign mining company would be a great loss for Michigan's forest and tourism economies, the letter adds. It would displace existing limestone quarrying jobs as well as long-term forestry and tourism jobs and would be "devastating" for the environment.

"The sale of these lands interferes with Indian tribes' rights by having an adverse impact on fishing, hunting and gathering activities of tribal members under the 1836 treaty, as well as a lack of cultural inventory, and no plan for inadvertent discovery," the collective letter of opposition continues.

Graymont, a Canadian mining company, first submitted an application to purchase over 10,000 acres of public land from the MDNR in November of 2013. Graymont intends to construct surface limestone quarries and, eventually, an extensive underground mine.

The area under consideration includes fragile wetlands and critical ecosystems. These public lands support unique hydrology and biodiversity, including "karst" habitat identified in Michigan’s Natural Features Inventory, limestone features (cliffs, pavement, sinkholes, caves) and special ecologies uniquely adapted to limestone: bats reliant on limestone caves, globally-rare "alvar" plant communities, and limestone wetlands critical to the endangered Hine's Emerald Dragonfly, termed "one of North America's rarest dragonflies" by the U.S. Fish and Wildlife Service.

The collective letter of opposition is signed by individual citizens as well as major groups, including the Michigan League of Conservation Voters, Upper Peninsula Environmental Coalition, Friends of the Land of Keweenaw’s Board of Directors, the Chippewa Ottawa Resource Authority, the Central U.P. Group of the Michigan Chapter of the Sierra Club, Yellow Dog Watershed Preserve, Concerned Citizens of Big Bay, Save the Wild U.P., the Sault Ste. Marie Tribe of Chippewa Indians, the Keweenaw Bay Indian Community, Students for Sustainability of Northern Michigan University, Northwoods Native Plant Society, Citizens for Alternatives to Chemical Contamination, Citizens Against the Rexton Project, Concerned Clergy of Marquette, the Marquette Unitarian Universalists Social Action Committee and multiple individual property owners in Trout Lake, Mich.**

"These are serious and unresolvable objections," said Alexandra Maxwell of Save the Wild U.P. (SWUP), who helped organize the collective letter of opposition. "Our message to Director Creagh is simple: don’t make this deal." According to Maxwell, Save the Wild U.P. has been following the developments of this project since Graymont submitted its application; SWUP and other groups have consistently attended public meetings and submitted commentary critical of this potential land sale. "Now a majority of environmental organizations and concerned citizens throughout the U.P. have reached a clear consensus -- the Graymont project must be stopped."

Aaron Payment, tribal chairperson of the Sault Ste. Marie Tribe of Chippewa Indians, said he was glad to sign the letter.

"I know that the DNR has received hundreds and hundreds of letters, emails and calls from my Tribal Citizens in opposition to this mine as it would devastate our treaty right to the land," Payment writes. "The proposed action is a harbinger of what's to come. The DNR has admitted in smaller group meetings they oppose the deal so you have to wonder why they are prostituting our land by continuing to consider this deal. Ask yourself, if the DNR has made clear they are in opposition, who is directing them to proceed despite DNR professional staff objections? What or who is driving this proposal? During the Chippewa County group of the League of Women Voters' public session at the Bayliss Library in the Sault, the DNR admitted the input they received was well over 90 percent in opposition. If the vast majority oppose, who is selling you out and for how much?"

Sierra Club, Michigan Chapter: Public needs more time to comment

A March 15 update from the Michigan Chapter of the Sierra Club states, "Sierra Club opposes the large-scale sale of public lands for private development. The decision on this application may come as soon as March 19. However, the application has gone through so many revisions, so quickly, that the public has not had an adequate opportunity to comment on the proposed action. Graymont has submitted nine versions of the application, with five coming since January 5, 2015. This means that by the time the public has seen and read an application, there has often already been a new one submitted.

"The most recent application was released to the public on March 10, less than 10 days before a proposed decision. Sierra Club believes that regardless of the merits of the proposal, the public deserves to have a reasonable period of time to review and comment on the final version of the application. We are asking DNR Director Keith Creagh to allow the public at least 30 days to review a final application before he makes a decision."

Graymont Proposal not on agenda for Citizens Advisory Councils

Horst Schmidt of FOLK (Friends of the Land of Keweenaw) said he attended a joint meeting of the MDNR's U.P. Citizens Advisory Council (Eastern and Western U.P. councils) in Marquette on March 16, but the Graymont proposal was not on the agenda.

"Considering the importance of the Graymont deal, it is significant that it was not on the agenda, even though I had asked our chair to place it on the agenda," Schmidt told Keweenaw Now. "One member from the eastern council said the access provisions after the deal would be implemented, as explained to him by the DNR, were enough to satisfy him that it was acceptable. The DNR did not communicate anything to the eastern and western councils in toto about the nature of the provisions or anything at all about the Graymont transaction."

Schmidt also questioned Graymont's proposed royalty payments.

"Over and over, Graymont appears to be generous," Schmidt noted. "First with the royalty increase from 18.75 to 30 cents/ton of usable dolomitic limestone. Second, it can indicate they are significantly underpaying the state. Third, by so doing, they are robbing people of the State of Michigan of revenue that would go into the DNR's land trust. Finally, by appearing generous, they apparently must think that it is still profitable for them. What kind of profit margin would they being making? Unlike regular mining operations, there is much less risk for Graymont with a known limestone deposit."

The Michigan Natural Resources Commission will hold its regular monthly meeting Thursday, March 19, at the Ralph A. MacMullan Conference Center, 104 Conservation Drive, in Roscommon. Following public comments, MDNR Director Creagh is scheduled to announce his decisions on several land transactions, including a revised land transaction application submitted by Graymont, Inc. For the agency's  background on Graymont’s proposals, visit the MDNR website at www.michigan.gov/graymontproposal.***

The MDNR is accepting written comment from the public concerning the newest revision of the Graymont proposal through Thursday, March 19.

"We strongly urge folks to review the facts," said SWUP's Maxwell, "and then write directly to Director Creagh, asking him to reject the Graymont land deal. Concerned citizens still have time to protect their public lands, in their own words."

Written commentary may be submitted to:
DNR-GraymontProposalComments@michigan.gov
 

Notes:

*Full texts of the Treaty and the Consent Decree can be found here: http://article32.org/

** Click here to read the Feb. 27 letter of opposition.

*** See also our Feb. 22, 2015, article, "DNR Chief approves mineral rights exchange with Graymont but delays decision on 10,000-acre land transaction; residents, groups express opposition to Graymont project."

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