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.

Guest Article: New Coalition rallies to protect Menominee River from Back 40 sulfide mine

By Horst Schmidt

During a July 28, 2017, rally for protecting the Menominee River, water protectors on the Interstate Bridge between Menominee, Mich., and Marinette, Wis., display signs to raise awareness of the threats to the river posed by the projected Aquila Back 40 sulfide mine. (Photos © and courtesy Horst Schmidt, unless otherwise indicated.)

On a beautiful, sunny July afternoon, I headed to the twin cities of Menominee, Michigan, and Marinette, Wisconsin, where the Menominee River flows into Lake Michigan. These twin cities were originally logging and later manufacturing towns. The Menominee River drains a large part of the central UP -- fed by the Paint, Michigamme and Brule rivers and their tributaries and lakes.

This map shows the location of the Menominee River and the rivers that feed into it. (Map courtesy Horst Schmidt)

On July 19, 2017, I had met Regina Chaltry of Join the River Coalition at a meeting of the Michigan Department of Natural Resources (MDNR) Western Upper Peninsula Citizens Advisory Council, where she and three colleagues asked the MDNR to consider the danger of Aquila Resources’ proposed open-pit Back Forty gold, copper and zinc mine next to the Menominee River. The Council listened, but declined to take any action. The DNRs of Michigan and Wisconsin have been working to restore fish habitat, especially the sturgeon, for decades. The Coalition felt the opening of the mine would create new environmental hazards for the river. At Regina’s invitation, I attended the Coalition’s event in Marinette a week later.

The legacy from nineteenth- and twentieth-century economic growth is major pollution at the mouth of the Menominee River. This year the Menominee River Area of Concern, with assistance from the Michigan Office of Great Lakes and the federally funded Great Lakes Restoration Initiative, has finished the clean-up of the lower river to the tune of 41 million tax dollars.*

Today, when you drive on US 41 through both cities across the Interstate bridge, you see cleaned-up towns, an island park, shipbuilding and other waterfront activities. Even from a decade back, the local communities have seen major improvements in their quality of life. The presence of the river draws tourists and summer residents to the area. Fly fisherman flock here. Wisconsin and Michigan DNR fisheries biologists have been successful in restoring the sturgeon population. Residents and visitors value a clean river.

Shipbuilding company and marina on the Menominee River.

Hallelujah! A new group, Save the Menominee River-Stop the Back Forty Mine (aka the Join the River Coalition) has taken up the good fight to stop the proposed Aquila Back Forty mine. It is made up of citizens on both sides of the Wisconsin-Michigan border. Ron Hendricks has been leading the charge to stop the mine for 14 years with the organization called Front Forty, which is now part of the Coalition. Join the River Coalition formed last April because of the fear that the Michigan Department of Environmental Quality (DEQ) would approve the mining project.

To raise awareness, the Coalition held a rally/picnic/protest/entertainment event on July 28 in Stephenson Island County Park in Marinette on the Wisconsin side next to the Interstate Bridge. This was a collaborative effort with the Menominee Tribe of Wisconsin. Even though the tribe now resides in east central Wisconsin, its origins lie at the mouth of the Menominee River. Their creation myth is centered in the area. Tribal members hold sacred sites along the length of the river, including areas of the proposed mine site. They are completely opposed to the mine and to the potential destruction of their heritage. Guy Reiter, a member of the tribe, has headed their opposition with significant support from his tribal members.

Signs at Stephenson Island County Park in Marinette, Wis., displayed during the July 28, 2017, event to save the Menominee River.

We gathered at the park during the early evening hours. Regina, who was one of the organizers, got us going for the protest march across the bridge and back with people of all ages holding signs to make drivers and passengers going across the bridge aware of the potential damage from the Back Forty project.

Regina Chaltry of Join the River Coalition, one of the organizers of the event, displays her sign during the protest march across the bridge.

While people were gathering, tribal members played exciting, innovative drum music. What protest would be complete without t-shirts, bumper stickers along with arts and crafts for fundraising? I got a really neat t-shirt. It highlights NOMINE in MeNOMINEe. Before and after the march, the group held a potluck along with tribal members selling grilled grass-fed beef sandwiches.

Musicians perform on the pavilion stage at Stephenson Island Park, Marinette, Wis., while participants gather for the evening rally.

Water protectors sell Save the MeNOMINEe River t-shirts, bumper stickers and more for fundraising.

We got lots of honks and high signs as we were marching. At the same time, a crew of photographers were gathering movie footage for a documentary. It was neat to watch one man, Doug Osman, as he went with his crew, asking people for comments about the proposed mine. I offered a comment -- my 30 seconds of fame.

Water Protectors walk from Marinette, Wis., towards Menominee, Mich., on the Interstate Bridge.

Water protectors demonstrate their concern for the water in front of a Pure Michigan sign.

Native American speakers brought up the challenges and the importance of keeping alive their traditions, which include treating the environment with respect.

It got dark. Earlier a large sheet had been hung over a beam on the park building in preparation for a talk with slides by Al Gedicks, retired University of Wisconsin-La Crosse professor and executive secretary of the Wisconsin Resources Protection Council, who has worked for years with Native Americans to oppose the dangers of sulfide mining.

Al Gedicks of the Wisconsin Resources Protection Council speaks with passion about the dangers of sulfide mining during his presentation about the Back 40 mine project in Sturgeon Bay, Wis., on June 6, 2017. He is the author of Resource Rebels: Native Challenges to Mining and Oil Corporations, which tells how Native and non-Native concerned citizens worked together to prevent harmful mining in Wisconsin. (Photo courtesy Al Gedicks)

Al gave a dynamic presentation in which he talked about pollution, sulfide mining, Michigan DEQ and Native American rights. Here is his summary, called "Defending Water, Defending Life":

"Opponents of Aquila Resources’ Back Forty metallic sulfide mine project have been repeatedly told that public opinion and citizen opposition to the project will have no influence on whether the Michigan Department of Environmental Quality (DEQ) issues permits for the proposed mine. These statements from the DEQ are part of the psychological warfare that the mining industry employs to discourage citizen organization to oppose ecologically destructive mining projects.

"The history of Wisconsin grassroots resistance to the Crandon metallic sulfide project from 1976-2003 and the Penokee Hills open pit iron mine from 2011 to 2015 demonstrates the power of Indian and environmental alliances to defeat large mining corporations that fail to recognize Indian treaty rights and obtain a social license to operate from those communities affected by mining projects. A social license indicates a community’s acceptance or approval of a mining project. It is intangible and unwritten, and cannot be granted by the Michigan DEQ or any other state agency or legal authority.

"After Exxon’s defeat at Crandon and the grassroots campaign to enact Wisconsin’s Mining Moratorium or 'Prove it First' law, the mining industry was forced to acknowledge that controversial projects can be stopped dead by local people and communities, threatening shareholder value and destroying executives' careers. Anti-mining activism is a global social movement." **

Water protectors display signs about the dangers of the proposed Aquila Back 40 sulfide mine, intended to mine for gold and other minerals. Cyanide is used to dissolve and separate gold from ore.

About 11 p.m. I decided to call it quits. It had been a long day of travel and a night of activities. It is gratifying to know that the Upper Peninsula Environmental Coalition (UPEC) has a new ally to continue its battles with the Michigan DEQ and the mining company. Off to Marquette the next morning for another meeting.

Sunset from Stephenson Island Co. Park, Marinette, Wis.

Mining companies assure regulatory agencies from whom they want projects approved -- and the public, who are interested in mining jobs, that there will be no mishaps or negative impacts on streams and lakes. However, these guarantees -- given as pacifiers -- don't hold up if there are major precipitation events or the company slips in its vigilance. State governments, in their desire for economic development, frequently do not require sufficient funds to pay for post-closure clean-up, leaving the cost to tax payers and permanent damage to the environment. Environmentalists share concerns about mining impacts because they are aware of almost two centuries of mining and post-mining catastrophes in this country, many of which still haunt us today.

For more information on the Back Forty Mine and environmental concerns, click on the following links to reports from UPEC's Mining Action Group (formerly Save the Wild UP):

"Michigan DEQ Permits Sulfide Mine, Imperils Menominee River"

"Aquila Back Forty Facts"

"What is Sulfide Mining?"

See also:

Keweenaw Now: "MDEQ to hold October public hearing on Aquila Back Forty mining project near Menominee River; public comment period continues"

and: 

"Mine proposed on Michigan-Wisconsin border prompts concerns" 

Aquila Resources 

Author's Notes:

* Click here to learn about Areas of Concern (AOCs).

Explanations of work done in the Menominee AOC available from the Environmental Protection Agency (EPA)

Info on Menominee AOC from the Michigan Office of Great Lakes 

See also: "Ecological health of U.P. river improving"

** Summary from Al Gedicks’ email to the author, dated July 31, 2017. 

Editor's Note: Guest author Horst Schmidt is president of the Upper Peninsula Environmental Coalition (UPEC).

UPDATED: MDEQ announces Proposed Mining Permit Decision on Aquila Resources Back Forty Project, seeks public comment

From the Michigan Department of Environmental Quality:
UPDATED Sept. 6-7, 2016, with information from Public Notice and more.

LANSING -- The Michigan Department of Environmental Quality (MDEQ) announced on Friday, Sept. 2, 2016, its proposed decision to grant a mining permit to Aquila Resources for the Back Forty Project -- a proposed gold, zinc and copper mine and processing facility in Lake Township, Mich. -- and a public hearing to be held October 6, 2016.

The MDEQ determined the application meets the requirements for approval under Michigan’s mining law, Part 632 of the Natural Resources and Environmental Protection Act, which requires that mining operations must be protective of natural resources, the environment, and public health and safety.

As part of the decision-making process, the MDEQ is seeking comments from interested persons on the proposed mining permit decision, as well as two other pending permit decisions for the project: an air emissions permit and a surface waters discharge permit (NPDES, or National Pollutant Discharge Elimination System permit). The MDEQ will hold one consolidated hearing and public comment period for all three permit decisions to ensure convenience for citizens. A fourth permit application for impacts to wetlands will be considered by the MDEQ in a separate review process.*

The public hearing will be held from 6 p.m. to 10 p.m. CST on Thursday, Oct. 6, at Stephenson High School gymnasium, located at W526 Division Street, Stephenson, Mich., to accept public comment on the proposed decisions. Throughout the hearing hours, technical staff of the MDEQ will be available in an area adjacent to the hearing room to answer questions regarding the MDEQ’s reviews and proposed actions. In order to accommodate the anticipated number of speakers, presentations will be limited to five minutes. Written comments will also be received at the hearing.

Interested persons may submit written comments by mail or e-mail until 5 p.m. November 3, 2016. Mail your comments to DEQ Back Forty Comments, Office of Oil, Gas, and Minerals, 1504 West Washington Street, Marquette, MI 49855. E-mail your comments regarding the Back Forty Mine Project to the designated MDEQ mailbox at DEQ-Mining-Comments@michigan.gov. All verbal and written comments presented during the hearing and comment period will be considered prior to making a final decision on each of the proposed actions.

Individuals needing accommodations for effective participation at the hearing should contact Tina Coluccio, 906-228-4524 one week in advance of the hearing date to request mobility, visual, hearing, or other assistance.

The MDEQ is required by law to issue a final mining permit decision on or before December 1, 2016. However, the decision date may be extended if additional information from Aquila is needed to address issues raised by public comments.

Aquila submitted its permit application on November 11, 2015. A team of technical experts from the MDEQ and Michigan Department of Natural Resources carried out a thorough review of the application and required Aquila to submit extensive additional information. The MDEQ also held a public meeting on the application on January 5, 2016, and received public comments throughout the review process.

Click here to access the Mining Permit Application and other documents.

Click here for the air permit information.

Click here for info on the NPDES permit and related documents.

For more information about Aquila Resources and the Back Forty project, visit the Aquila Web site: www.aquilaresources.com/projects/back-forty-project.

For more information about the MDEQ, visit: www.michigan.gov/deq.

* Editor's Note: For more details, see Keweenaw Now's Sept. 1, 2016, article, "MDEQ to hold October public hearing on Aquila Back Forty mining project near Menominee River; public comment period continues."