Friday, February 02, 2018

DEQ hearing on Back 40 wetlands permit attracts nearly 500; Menominee Tribe lawsuit seeks federal Clean Water Act jurisdiction

By Michele Bourdieu

The large gym at Stephenson High School was filled with about 500 people attending the four-hour Michigan Dept. of Environmental Quality Hearing Jan. 23, 2018, on Aquila Resources' Back 40 mining project application for wetlands permitting. (Photo © and courtesy Emilio Amador Reyes)

STEPHENSON, Mich. -- Nearly 100 concerned citizens, both Native and non-Native, spoke during the Jan. 23, 2018, Department of Environmental Quality (DEQ) public hearing on the wetlands permit for the Back 40, Aquila Resources' projected open-pit sulfide mine, for gold and other metals, near the Menominee River, which forms the border between Michigan and Wisconsin, not far from Lake Michigan.

Many speakers were from the Menominee Indian Tribe of Wisconsin, who have opposed the Back 40 project for years and who filed a lawsuit on Jan. 22, one day before the hearing. The lawsuit is a complaint against the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers for failing to follow the Clean Water Act Section 404 permitting regulations by delegating wetlands permitting to the State of Michigan.*

While a few speakers defended the mining company's application, the majority spoke -- many with passion -- in opposition to the wetlands permit application and the mining project itself, citing harmful impacts not only to the river and adjacent wetlands but also to historical and cultural resources, including archaeological sites in or near the proposed mine site.

Regina Chaltry and her daughter, Grace, spoke from the heart against the mine and for the water. Regina asked DEQ to deny the permit. She said she opposes the project because Aquila has applied for only an open pit mine while promising investors an underground mine, which underscores all calculations of waste rock, discharge water and tailings.

Regina Chaltry speaks at the hearing against the Back 40 mining project. (Photo © and courtesy Marisa VanZile);

"Our family has had a cabin on the river for more than 70 years in the current location and spend a lot of time of the river," Regina said.

Grace captured the hearts of the audience with her brief statement:

Young Grace Chaltry speaks out for the water. (Video © and courtesy Mark Doremus)

Two members of the Menominee Tribe who spoke at the beginning of the hearing were Ada Deer, former Menominee tribal chair, and Guy Reiter, Menominee tribal organizer. Here are some brief excerpts from their speeches:

Ada Deer, former Menominee tribal chair, speaks in opposition to Aquila's Back 40 project, comparing it to resource extraction from indigenous lands worldwide. (Video © and courtesy Emilio Amador Reyes)

Guy Reiter asked the people wearing blue shirts for solidarity in protecting the water to stand. He expressed the Menominee people's resolve to resist exploitation and asked the DEQ to apply environmental justice to tribal interests. Reiter also said he brought more than 200 letters, many from Menominee youth, to deliver to the DEQ.

"Our will will not be broken," Reiter said. "We'll stand on the shoulders of our ancestors that are in the ground that Aquila wants to dig up out of the ground."

Guy Reiter, after joking about the meaning of his name, states the tribe's determination not to give up. (Video © and courtesy Emilio Amador Reyes)

Crystal Chapman Chevalier, a Menominee tribal legislator, said her comments were as an individual tribal member. She addressed the DEQ's past failures to protect Michigan's environment:

Crystal Chapman Chevalier challenges the DEQ to do their job of protecting "Pure Michigan." (Video © and courtesy Mark Doremus)

Kathleen Heideman of Marquette, Upper Peninsula Environmental Coalition (UPEC) board member, offered an example of fundamental problems with the Aquila’s feasibility analysis. UPEC, through their Mining Action Group, had hired two independent technical reviewers to study the wetland permit application.

One reviewer, the Center for Science in Public Participation, stated the following in their report: "The mining permit and wetland permit are inextricably linked. The location and size of proposed mine site facilities as presented in the November 2017 Wetland Permit Application are different from those presented in the Mining Permit Application, and pose risks to wetlands that have not been analyzed."**

Kathleen Heideman of UPEC cites an example of technical problems with the wetlands permit found by an independent reviewer. She also asks DEQ to deny the permit and submits reports by two independent technical reviewers.**(Video © and courtesy Mark Doremus)

Al Gedicks, executive secretary of the Wisconsin Resources Protection Council, spoke about methylmercury, noting its absence in the 2,650-page application. He explained how Aquila's project as proposed would add to bioaccumulation of methylmercury, a neurotoxin, which would impact fish, wildlife and human health.

Al Gedicks, executive secretary of the Wisconsin Resources Protection Council, points out some of the harmful effects of methylmercury, noting the absence of any mention of the neurotoxin in Aquila's proposal. (Video © and courtesy Mark Doremus)

Raj Shukla, executive director of River Alliance of Wisconsin, a water advocacy group, pointed out the inconsistencies and unknowns in Aquila's proposal

Raj Shukla, executive director of River Alliance of Wisconsin notes inconsistencies in Aquila's wetland permit application. He says the true size and scope of the project is not clear. Shukla says his organization joins with those opposing both the wetlands permit and the project itself. (Video © and courtesy Mark Doremus)

While most of the speakers at the hearing opposed the permit, a few did speak in support of it.

Tony Retaskie of the Upper Peninsula Construction Council asked the DEQ to permit Aquila to go forward with the mine because of the need for "family sustaining jobs."

Lois Ellis, Dickinson Area Economic Development Alliance director of economic development, said the Alliance urges approval of Aquila's latest project application and they expect DEQ to do a careful review of the application.

Steve Casey, DEQ Water Resources Division Upper Peninsula District supervisor, who conducted the hearing, asked the crowd to be respectful of all speakers.

"I was very pleased that the crowd was respectful," Casey told Keweenaw Now.

He said 88 people spoke with a three-minute limit, but there was not enough time to hear from 45 others who had filled out cards with their intention to speak. He noted the frequent applause, mostly for those opposing the project, took time from those who didn't have a chance to speak before the hearing ended at 10 p.m.

"It may have intimidated some with different viewpoints," Casey said.

He noted some speakers handed in their comments and there may have been others who handed in written comments even though they did not speak.

Today, Feb. 2, 2018, is the deadline for written comments on the Aquila application for the permit that includes Part 303 Wetlands and Part 301 Inland Lakes and Streams.

Casey was assisted at the front table by Jarrod Nelson, DEQ environmental analyst, and Kristi Wilson, DEQ environmental quality specialist.

Ginny Pennala, DEQ Water Resources Division supervisor of the Resource Unit for the Upper Peninsula, attended the hearing but was not seated at the front table.

Pennala said DEQ encourages people to submit written comments on the MI Waters Web link here. Note that the link probably will not be available after today, Feb. 2.

Kristi Wilson is the main DEQ reviewer of this application since she has been studying it for some time, Pennala explained, noting the review would be a team effort.***

However, this application requires oversight by the Environmental Protection Agency (EPA) section 404 of the Clean Water Act.

"On a project of this magnitude the EPA has mandatory oversight," Pennala told Keweenaw Now this week.

The EPA also relies on the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service in this review under the Clean Water Act requirements.
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Menominee Tribe files lawsuit against EPA, Army Corps

On Jan. 22, the day before the hearing, the Menominee Indian Tribe of Wisconsin filed a lawsuit to address the failure of the EPA and the Army Corps to comply with Clean Water Act requirements concerning jurisdiction and permitting for dredged or fill material in waters of the United States.

Michigan is one of two states (the other is New Jersey) where the EPA delegates regulation of wetlands to the state except in the case of projects that come under certain categories of the Clean Water Act (such as this one) that require mandatory federal oversight.

However, the position of the Menominee Tribe is that the federal agencies should not merely review the project but should take control of the permitting process for the Clean Water Act 404 permit.

During the Jan. 23 hearing, Gary Besaw, chairman of the Menominee Nation, referred to the recent lawsuit against the EPA and the Army Corps.

"The Menominee believe that under the Clean Water Act the State of Michigan cannot assume Clean Water Act permitting authority for the Menominee River or its wetlands. The way  DEQ is proceeding in the permit application is contrary to the public's interest, and in this entire process should be placed on hold pending the outcome of the federal litigation filed by the Menominee yesterday."

Janette Brimmer of Earth Justice, one of the attorneys representing the Menominee Tribe in their lawsuit, told Keweenaw Now that this litigation deals only with the federal Clean Water Act Section 404 permit. Under the Clean Water Act, certain waters cannot be delegated to a state because of interest beyond a certain state.

"If the state has a separate permit," Brimmer said, "it can exercise its state-level jurisdiction on state law matters, but it doesn't invoke the same regulations and legal requirements as if the (Army) Corps and the EPA were in control of the process."

One difference between the state permit and the federal Clean Water Act 404 permit is that the National Historic Preservation Act would be invoked, she explained. It requires a formal consultation process with the tribe.

As the Menominee Tribe states in the lawsuit (paragraph 11), "Since time immemorial the Menominee Tribe has lived, hunted, fished, gathered, farmed and otherwise occupied and used the ceded lands, including the lands around the Menominee River. The Menominee Tribe has also practiced cultural and religious ceremonies in reservation lands, ceded lands, and included lands around the Menominee River. The Menominee Tribe’s connection to the Menominee River is existential as the Menominee Tribe’s origin story takes place at the mouth of the Menominee River."*

Brimmer also noted that the Army Corps of Engineers said in 1979 that the Menominee River was a water used in interstate commerce.

Paragraph 55 of the lawsuit states the following: "While the Clean Water Act allows for EPA to approve the delegation of some Section 404 permitting to a state, 33 U.S.C. § 1344(g), permitting in waters and their adjacent wetlands that are used, or could be used, in their natural condition or with reasonable improvement for transport in interstate commerce is not and cannot be delegated to a state."*

Interstate commerce can include fishing, recreation, industrial uses, etc., for more than one state. The Menominee River forms a boundary between Wisconsin and Michigan.

"The 404 (federal permit) is necessary to finalize the applicant's current proposal," Brimmer added.

According to the lawsuit, based on the Clean Water Act, the EPA and the Army Corps of Engineers are supposed to take control  of the permitting process for wetlands and the river.

Keweenaw Now has contacted the EPA, but so far they have not replied to our questions. Watch for a possible update.

Editor's Notes:

More videos of individual speakers testifying at the Jan. 23 hearing can be found on the Back Forty Film Facebook page, for those who have a Facebook account. Many thanks to our contributors -- Emilio Amador Reyes for his photos and videos, Marisa Van Zile for photos and information, and Mark Doremus for uploading videos we requested to YouTube for our readers' access.

* Click here to access the lawsuit filed on Jan. 22, 2018.

** Click here for the independent report from the Center for Science in Public Participation. A second technical review, by Dr. Tom Myers, independent hydrologist, concerned impacts to the wetlands in Aquila's project area. The report on his review states, "Dr. Myers’ analysis involved an assessment of the predicted drawdown on wetlands and a review of the groundwater modeling of those impacts. One concern includes how the modeling conceptualized the wetlands, meaning the level of connectivity with surface water. Another concern includes the prediction of the extent of the drawdown, as modeled." Click here for Dr. Myers' technical review.

*** On Jan. 19, 2018, DEQ's Kristi Wilson sent a letter to Aquila requesting clarification of certain discrepancies in their groundwater technical information. You can access this letter and other documents related to the application on the DEQ's MIWaters site. Click here and then click on Documents. Select the document (listed by date) to download. Warning: You may need WinZip to open the document. Links to some documents can also be found here.

Sunday, January 28, 2018

Nearly 500 Copper Country residents march across Lift Bridge in anniversary Sister March: videos, photos

By Michele Bourdieu

An estimated 400-500 participants in the Jan. 21, 2018, Copper Country Sister March cross the Portage Lift Bridge carrying signs about their concerns, from voting power to women's rights as human rights to DACA and immigration -- and more. The theme of this year's women's marches -- held in many U.S. cities -- was "Power to the Polls." (Photos by Keweenaw Now unless otherwise indicated.)

HOUGHTON -- Despite a very icy sidewalk on the Portage Lift Bridge, a large crowd of women, men and children walked from Houghton across the bridge to Hancock and back on Sunday, Jan. 21, 2018, to demonstrate, for the second year in a row, their solidarity with Sister Marches held across the country -- on the anniversary of the Sister Marches held a year ago in solidarity with the huge 2017 Women's March on Washington, DC. This year the many signs carried in the march reflected continued concerns for women's rights and equality for all, with an added theme of "Power to the Polls," encouraging women to vote.

As she did last year, Susan Burack of Hancock again instigated the Sister March in Houghton by signing up with the national march. This year the Women's March: Power to the Polls, began with a large rally in Las Vegas, Nevada, on Jan. 21, kicking off a national voter registration tour intended to elect more women and progressive candidates to office.

As participants gather in Houghton to line up for the Jan. 21, 2018, Sister March, Susan Burack of Hancock addresses the marchers about Power to the Polls -- registering to vote, voting, and making a difference locally by getting involved in the local community. Click on photos for larger versions.

Burack said the Houghton County Democratic Party and the League of Women Voters helped her spread the word about the march.

"The variety of the signs was wonderful," Burack said. "We sure have a lot of issues to march about. And the range of ages from babies to seniors and everyone in between. If it was 400-500 people it is a terrific representation of our population!"

Preparing to march to the Portage Lift Bridge, participants line up near the Houghton waterfront.

As she walked gingerly up the icy hill to Shelden Avenue Ellen Seidel, retired Michigan Tech librarian, commented on why the sister marches are important to her.

"The whole future's at stake," Seidel said, "from the planet to the children."

Several women who participated in the 2017 Women's March on Washington, DC, led the Sister March in Houghton this year. One of those was René Johnson, Finlandia University Servant Leadership director and assistant professor of religion.*

"Last year I may have been responding to my distress over the hateful, divisive rhetoric in the air and my angst over possible policy changes that would take America in a terrible direction away from the higher values of compassion, generosity, and kindness," Johnson said. "Going to the march in DC, surrounded by the most vibrant display of positive humanity (in both size and volume) that I'd ever experienced, was both a comfort to my distress and a confirmation that a powerful movement was afoot. I participated in Sunday's local Sister March because I choose to persist in supporting and promoting this movement (which I hope continues to resist bigotry and thin democracy even after this current administration), because I believe in the power of the people, and because I have a voice."
Inset photo: René Johnson of Hancock wears her message on an original sign during last year's Women's March in DC. (File photo © P.J. Besonen of Covington, Mich., and courtesy René Johnson)

Led by several local women who participated in the 2017 Women's March on Washington, DC, participants in the Jan. 21, 2018, Sister March head up the hill to Shelden Avenue on their way to the Portage Lift Bridge in Houghton. Click on YouTube icon for larger video screen. (Videos by Keweenaw Now)

Commenting on this year's Sister March in Houghton, Valorie Troesch of the Houghton Dems, who has led workshops on running for local office, echoed the theme of power in voting.

"There's a old maxim that the world is run by those who show up," Troesch told Keweenaw Now. "We need to show up -- run for office, vote, work for those who are running for office, speaking up."

Displaying a variety of signs with their concerns, marchers form a long line up Shelden Avenue and across the Portage Lift Bridge. (Photo by Allan Baker for Keweenaw Now)

Lorraine Weirauch of Tamarack City, a retired educator, said she participated in the Sister March because of several issues that are important to her.

Lorraine Weirauch of Tamarack City pauses on the bridge to comment on her participation in the march.

"I wanted to support the women, Planned Parenthood, DACA (so important!), indigenous women, fairness, justice -- a more thoughtful government," Weirauch told Keweenaw Now.

More videos:

After crossing the bridge to Hancock, marchers return to Houghton, most walking slowly and carefully on the ice-covered sidewalk of the bridge.

After walking up the east side of the bridge to Hancock, the large crowd divides in two groups to return on both sides of the bridge. Parents guide their children while some senior citizens hold onto the railings or walk slowly and carefully on the ice.

In the midst of the hundreds of marchers with signs calling for change, a few young men march in the opposite direction calling out the name of the US President. It was not clear what their purpose was, but the march remained peaceful.

Linda and Jim Belote of Hancock comment justifiably on the iciness of the bridge sidewalk. No injuries were reported, as far as we know. Marchers remain cheerful on the last part of the trek.

At the end of the Houghton Sister March, signs along the street remind passers-by of some of the issues of concern to the marchers. (Photo by Allan Baker for Keweenaw Now)

Facebook friends share photos ...

Keweenaw Now appreciates the Facebook friends we contacted for permission to use the following photos they posted of their Sister March participation:

The Vendlinski family of Houghton display their individual signs as they prepare to join the 2018 Sister March to the Portage Lift Bridge. Pictured, from left, are Andi, Jim, Lewis and Catherine. (Photo courtesy Andi Vendlinski)

Andi Vendlinski also participated in the 2017 Women's March on Washington.

"I was very fortunate to be able to march in Washington last year and am glad that one year later we are still fighting, even in smaller cities like Houghton," Andi said. "It’s amazing to see how passionate people can be, and I am so proud of my family for standing up and taking part in this fight with me."

Artists Joyce Koskenmaki, left, and Bonnie Peterson, both grandmothers, display their list of issues of concern to "Grannies." Click on photo for larger version. (Photo courtesy Bonnie Peterson)

Katie Maki and daughter Daphne march in Marquette:

Katie Maki of Houghton still has great memories of her trip to Washington, DC, for the 2017 Women's March on Washington. On that long bus trip she and her daughter Daphne made new friends from Marquette; therefore, this year Katie and Daphne decided to re-unite with them by participating in the Jan. 21 Sister March in Marquette.

Katie Maki, left, her daughter Daphne, center, and Daphne's friend Mya Johnson, right, display their colorful signs during the Sister March in Marquette on Jan.21, 2018. (Photo courtesy Katie Maki)

Katie said it was difficult to compare the Marquette Sister March with last year's huge march in DC, though she found both "amazing."

"Obviously there was massive anticipation for the DC march including a three-hour car ride followed by an 18-hour bus ride!" she said. "Getting off that bus into a sea of women and pink was intense. We have never been a part of something that large and powerful. It was life altering. We met these ladies (and another woman who couldn’t be at the Marquette march) on the bus and decided to stick together at the march. What an amazing experience. Marquette was amazing too -- more people than I imagined. I don’t know numbers but it felt like 1000. The speakers were amazing, including the little girl who spoke at the end."
Inset photo: Katie Maki, right, in green jacket, and Daphne at the 2017 Women's March on Washington. (File photo courtesy Katie Maki)*

On Jan. 21, 2018, Katie and Daphne Maki join Marquette area friends they met in DC last year for the Sister March in Marquette. Pictured here, from left, are Jackie Stark of Marquette, Daphne Maki of Houghton, Judy Krause of Ishpeming, Katie Maki of Houghton and Mary Stone of Negaunee. (Photo courtesy Katie Maki)

Marquette marchers enjoy some sunshine during their Jan. 21, 2018, Sister March. (Photo courtesy Katie Maki)

A large sign at the Marquette Sister March reflects the emphasis on "Power to the Polls" in this year's women's marches. (Photo courtesy Katie Maki)

Community support for the Sister March in Marquette. (Photo courtesy Katie Maki)

More photos in new slide show:

Click here to see more photos in our new slide show: Sister March: Jan. 21, 2018. Click on the first photo. Click the info icon for the caption and follow arrows to the right for the slide show.

* Editor's Note: See our Feb. 3, 2017, article, "Local mothers, daughters, friends inspired by joining Jan. 21 Women's March in D.C."