Monday, February 03, 2020

Federal Circuit Court rejects Menominee Tribe's appeal on Back 40 mine wetlands permitting; most Back 40 permits remain in state contested case litigation

By Michele Bourdieu

The scenic Menominee River, not far from the proposed Back 40 mining project site. (Keweenaw Now file photo)

LANSING, Mich.; KASHENA, Wis. -- In its efforts to protect the Menominee River from the dangers of Acid Mine Drainage and to save sacred cultural sites near the river from being destroyed, the Menominee Indian Tribe of Wisconsin (MITW) is still pushing back against a federal and state permitting process that ignores their concerns about Aquila Resources' proposed open-pit sulfide mine threatening both Wisconsin and Michigan, the two states bordering the river.

On Monday, Jan. 27, 2020, the US 7th Circuit Court of Appeals (for the Eastern District of Wisconsin) rejected the Tribe's appeal challenging the federal government’s decision to delegate to the State of Michigan primary authority over Aquila's wetlands (dredge-and-fill) permit, on a bi-state waterway.

The Court's opinion is based on the fact that, in 1984, Michigan was allowed authority to regulate wetlands under Section 404 of the federal Clean Water Act.* This means that the former Michigan Department of Environmental Quality (MDEQ), was allowed to issue Aquila a wetlands permit that affects the Menominee River, which forms the border between the two states, and the Menominee Tribe's burial grounds, ancient agricultural sites and ceremonial sites -- some of which have already been deemed eligible for listing on the National Register of Historic Places -- located in Michigan near the proposed site for the Back 40 Mine.

This ancestral burial mound is one of the Menominee sacred archaeological sites located very near the Menominee River and near the proposed site for the Back 40 mine on the Michigan side of the river. (Keweenaw Now file photo.)
 
In their Jan. 27 ruling denying the Tribe's appeal of a previous ruling by a lower, district court, the judges of the 7th Circuit Court even admitted that the Tribe, who had written to both the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers with their concerns about the injustice of Michigan's authority over this permit, had been given the "runaround" by the federal agencies.

The 7th Circuit Court states, "The Menominee Indian Tribe of Wisconsin’s sincere efforts to protect its cultural heritage ran into a legal labyrinth and regulatory misdirection. Had the federal agencies provided a meaningful response to the Tribe’s concerns, perhaps this suit could have been avoided. But in light of the regulatory scheme that we cannot change, the resolution of this case is clear. We cannot review the agency action here. In these circumstances, the Tribe is left to pursue its challenge in the Michigan administrative system and state courts. And we are left to AFFIRM the judgment of the district court."

According to Al Gedicks, professor emeritus of sociology at the University of Wisconsin-La Crosse and executive secretary of the Wisconsin Resources Protection Council, "The court recognized but failed to correct the environmental injustice of the EPA's failure to provide for tribal consultation under the National Historic Preservation Act (NHPA)."

On the following day, Jan. 28, the Menominee Tribe issued a press release stating their objections to the Circuit Court's ruling. The Tribe claimed their appeal asked the Court to require the federal agencies to assume primary control over the wetland permit and permitting process from the State of Michigan and to require consultation with the Tribe under the National Historic Preservation Act regardless of which government entity issues the permit.

"This permit affects so many people, interests and the environment, especially sites critical to the Tribe’s culture and history," said Chairman Douglas Cox, Menominee Tribe of Wisconsin. "Due to the vast negative impact this permit will have, it is important that the process follow the intentions of the Clean Water Act and not be controlled only by the State of Michigan. The Tribe’s interests are not fully protected by pursuing a futile petition to the agencies or by being forced into a state process where federal laws, meant to protect the Tribe, will not be applied."**

Cox added, in a conversation with Keweenaw Now on Jan. 31, that the Circuit Court's decision does not affect the Tribe's continued efforts to challenge the wetlands permit, now under the successor of the MDEQ, Michigan's Department of Environment, Great Lakes, and Energy (EGLE).

"We're still fighting in the Michigan court through the contested case on the wetlands permit," Cox said.

Concerning the Circuit Court ruling, Janette Brimmer, an Earthjustice attorney representing the Menominee Tribe in their litigation on the wetlands permit, said, "At least they recognized that the Tribe 'got the runaround' from agencies, and we agree with that statement." 

Brimmer told Keweenaw Now this week that the Tribe has submitted briefs to the adminstrative law judge in the Michigan contested case against the wetlands permit. This is a joint contested case that includes, with the Tribe, the Coalition to SAVE the Menominee River and adjacent landowner Tom Boerner.

"We plan to pursue the same jurisdictional argument -- that the Army Corps should be in charge of the wetlands permitting process," Brimmer said. "Earthjustice is still working with the Tribe to explore their options. We're not giving up."

Menominee Tribe origins, water quality tied to river

In an Aug. 30, 2019, letter to the Eagle Herald of Marinette, Wis., Menominee Tribe Chairman Cox described why the risk this mine poses to cultural resources and the environment is too great:

"The mouth of the Menominee River is the place where the Menominee originated as a people. We remain inextricably tied to the river, and to our ancestral land along the river. Sacred mounds, burial sites, dance rings, and raised agricultural beds grace the landscape as a testament to our presence even today. These irreplaceable cultural resources are located at and nearby the proposed mine site, and are eligible for inclusion on the National Register of Historic Places. There is no other site like it in the entire State of Michigan."

This photo of the Menominee River was taken near prehistoric agricultural sites located on State of Michigan land near the proposed mine site. Archaeologists have estimated gardens were planted here between 1100 and 1300 A.D. (Keweenaw Now file photo)

Cox added, "Aquila’s plan to construct an open-pit sulfide mine just 150 feet from the east bank of the Menominee River in Lake Township, Michigan, would entail digging a massive hole, to extract gold, zinc and copper from sulfide ore using cyanide at the mine site. The company is openly contemplating potential future expansion of the project. It is all but certain that the Back Forty Mine will result in long-term water quality contamination. Once abandoned, sulfide mines like this invariably release toxic pollution and leave the local people with the aftermath -- contaminated water, dead wildlife and the financial costs of cleanup."

Cox has also spoken out at public hearings on Aquila's other state permits for the Back 40. In his statement at EGLE's June 25, 2019, consolidated public hearing on three of the permit applications (the amended Part 632 mining permit, the air permit and the dam safety permit), Cox asked EGLE to withdraw all the Back 40 permits because of the project's potential to destroy cultural sites and the environment.

Dawn Wilber, Menominee tribal member who joined Menominee tribal members Wayne Swett and Jwin Zillier in a 48-mile canoe trip on the Menominee River last July to call attention to opposition to the Back 40, told Keweenaw Now this week that she was disappointed in the Jan. 27 Circuit Court decision.

"I don’t understand why," Wilber said. "The Federal government is not holding up their end (of the Treaties). They need to be held to it just as the Native community is. We are not giving up."

After their arrival in Marinette, Wis., on the fourth day of their canoe trip on the Menominee River last July, Menominee tribal members Dawn Wilber, right, Wayne Swett and Jwin Zillier pause for a photo with Big Bear, whose statue, a replica of the original statue on the Menominee Reservation, marks the spot where the Menominee were supposed to have originated from a bear that climbed out of the river. (File photo courtesy Wayne Swett)***

When EGLE approved the Amended Part 632 Mining Permit and the Modified Air Quality Permit on Dec. 12, 2019, Menominee tribal member Wayne Swett, who shares his photos with Keweenaw Now, commented, "As far as the permit thing goes, it's a small setback. But each permit has pages of conditions that have to be met and it will take time and money for Aquila to meet those conditions along with all these court cases pending."

Adjacent landowner Tom Boerner, who is involved in three contested cases against permits issued to Aquila by EGLE, has 380 acres of woodlands, wetlands and streams and over one mile of Menominee River frontage near the mine site. The 64-year-old Boerner says he and his family have interacted with persons from the Menominee Nation for over 100 years.

"In my lifetime I have witnessed the effects of atrocities committed against the Menominee Tribe as their burial mounds that cover the area have all been violated by persons from the State of Michigan, including Northern Michigan University," Boerner told Keweenaw Now. "Remains, including skeletons, were exhumed and put on display. Many of the raised garden beds have been plowed over. Thousands of years of history have been wiped out and what remains is under attack by persons who are not only willing to destroy the history of the area, but must hate Native Americans and First Persons so much that they want to wipe out the last surviving physical history of an entire people."

Boerner added, "I believe non-native Americans tend to discount the fact that the Menominee Tribe has a creation story that is tied to the specific mining site along the Menominee River and is linked to the Sturgeon in the River as well. The Menominee Indian Tribe's creation story is as valid and meaningful to them as the Garden of Eden is to a Christian."

Other Back 40 permits

EGLE issued a new air permit and an updated Part 632 mining permit to Aquila Resources for its proposed Back Forty mining project on Dec. 12, 2019.

The Modified Air Permit to Install (PTI), issued by EGLE's Air Quality Division, reflects public comment on the proposed  project and changes to Aquila’s mining plan. This Permit is now in a contested case initiated by landowner Tom Boerner.

The Amended Part 632 Mining Permit, issued by EGLE's Oil, Gas and Minerals Division, is based on technical review of the amendment application and public comment received during 2019. This Permit is now also in a contested case initiated by landowner Tom Boerner.

However, Earthjustice Attorney Gussie Lord, director of Tribal Partnerships in the Earthjustice Rocky Mountain Office, who represents the Menominee Tribe for challenges to the Part 632 Mining Permit, said they received on Nov. 26, 2019 -- close to three years after filing the initial petition for a contested case on Aquila's 2016 Part 632 Mining Permit, a 2-page order issuing the final decision of the Environmental Permit Review Commission. The parties had sixty days from the date of the order to appeal the decision to circuit court.

"The three-member panel was made up of volunteer panelists appointed by former Governor Snyder," Lord explained. "We filed an appeal to the Environmental Permit Review Commission with the circuit court in Ingham County (Mich.) on Monday, Jan. 27, 2020."

Meanwhile, the Amended Part 632 Mining Permit for the Back 40 -- issued by EGLE on Dec. 12, 2019 -- has a deadline of Feb. 10, 2020, if any party aggrieved by the decision would like to seek a contested case before EGLE, that is, Administrative Law Judge Daniel Pulter. Whether or not the Menominee Tribe and Earthjustice will seek another contested case on this amended mining permit is not known at this time.

Aquila's plan for the Tailings Management Facility (TMF) as submitted to EGLE for the Amended Part 632 Mining Permit as of Nov. 8, 2019. Note proximity of open pit at left and TMF in center to Menominee River. Click on image for larger version. Click here for the document with presentation on the design. 

Aquila informed EGLE on Dec. 12 that it would withdraw the project’s dam safety permit application prior to a Dec. 31, 2019, deadline so it could incorporate information determined to be relevant during the review of the project’s contested wetlands permit. Aquila is expected to resubmit a dam safety permit application in 2020, That new application will restart the permit review process from the beginning, including new opportunities for public review and comment -- including a public hearing.

These permits, even when issued, are all subject to conditions before they can be considered "effective," or fully granted with all conditions satisfied. So far the only permit Aquila holds that is "effective" is the National Pollution Discharge Elimination System (NPDES) permit, involving water discharge to the Menominee River. The other permits are still subject to conditions.

"The MITW has sought transparency in this process since the beginning," Lord told Keweenaw Now recently. "Aquila has withdrawn its tailings dam safety permit application so it can incorporate information determined to be relevant from the other permits. We repeatedly asked that Aquila do the same during the mining permit hearing, due to the overlap between the wetlands permit and the amended mining permit, but it repeatedly refused, wasting time, effort and resources of all of the parties and the state agencies involved, as we argued about potential project elements that had long been abandoned by the applicant." 

Lord noted a common tactic during the permitting process is to break up a project into smaller bites, to create the appearance of a lesser environmental impact -- when, in fact, the project’s neighboring ecosystem will have to bear the full impacts of the project.

"We believe the entire scope of the project should be analyzed as part of the required cumulative impacts assessment, not just a bit at a time," Lord said. "The Menominee people lived on the Menominee River for 10,000 years without ruining it. We should look to their example and leadership in decisions on environmental sustainability. We all understand the need for development, but we also need to know the real costs. This proposed site is right next to the river, right upon significant cultural and historic sites that are the last of their kind left in Michigan. In addition, the Menominee River sustains the largest breeding population of lake sturgeon on Lake Michigan -- impacts to that habitat could imperil the future of a species that has been around since dinosaurs walked the earth, and currently is being considered for listing under the Endangered Species Act."

Adjacent landowner Tom Boerner offered his opinion of the contested cases against EGLE: "In the past 3 years I have spent countless hours researching documents, compiling exhibits, preparing and filing legal briefs and being in hearings in front of an administrative law judge. In the past 3 years there were 52 days of contested case hearings in front of a judge. Add this to the other costs for the taxpayers. For the people who don’t know this: The State of Michigan defends the actions of the Permit applicant. It is the Michigan taxpayer that provides -- free of charge -- lawyers from the Michigan Attorney General’s office who have vigorously defended Aquila Resources. This happens even when persons within EGLE Water Resources Division who reviewed Aquila’s permit application wrote in their 'finding of fact and conclusion of law': The project is not consistent with the permitting requirements of Part 303, Wetlands Protection and Aquila’s permit may not be issued under this Part as Aquila’s Part 303 Wetlands Permit application did not meet the standards under Part 303 law. Then add six (6) Aquila attorneys who have no regard for the facts -- only that they win and Aquila gets to have a mine of 1080 acres only 147 feet from the Menominee River that WILL pollute forever."

Professor Al Gedicks: Dam safety permit most significant

According to Al Gedicks, who has spoken out against the Back 40 project on several occasions, the dam safety permit could end up as a catastrophe waiting to happen.

Al Gedicks, professor emeritus of sociology at the University of Wisconsin-La Crosse and Executive Secretary of the Wisconsin Resources Protection Council, speaks about the dangers of the proposed tailings management facility for the Aquila Back 40 mine during a presentation in April 2019, a few months after the catastrophic mine tailings dam collapse in Brumadinho, Brazil. (Video © and courtesy Anthony J. Corey of Digital Water Voices)

The dam safety permit is most significant, Gedicks says, since, despite extensions, Aquila was not able to meet the Dec. 31 deadline and must start that permit process again in 2020. He offers detailed information on the problems with Aquila's design in an article titled "Proposed Mine a Ticking Time Bomb," published on Dec. 13, 2019, in urbanmilwaukee.com.

"After a catastrophic mine tailings dam collapse in Brumadinho, Brazil, killed 270 people in January of 2019 Brazil not only banned that design for future mines, but mandated that every existing mine tailings dam of that design be decommissioned. The dam collapse was the world’s deadliest in more than 50 years," Gedicks writes. "Shock waves from the collapse of the Brazilian tailings dam continue to affect global investors and industry associations. Yet Michigan regulators gave the design that Brazil banned preliminary approval."****

Aquila is not authorized to begin construction of the mine and will not be able to proceed until all permits, including the dam safety permit, have been approved by EGLE.

Environmental, community groups protest Back 40 project

In addition to the Menominee Tribe, several water protector groups of local residents in both Michigan and Wisconsin have been protesting the proposed Back 40 mining project for several years. The Coalition to SAVE the Menominee River, which includes leaders of several of these groups, has joined with the Menominee Tribe in a joint contested case against EGLE on the wetlands permit, along with Tom Boerner, adjacent landowner.

Following the Jan. 27 Circuit Court of Appeals ruling against the Menominee Tribe's federal case, Dale Burie, Coalition president, stated they agreed that the Court's decision makes clear that the 1984 federal decision to give the State of Michigan wetland regulatory authority should not be the final word on jurisdiction over the Back Forty permit application. They also agree that the Tribe got the "runaround" from federal agencies.

"The proposed Back Forty mine would affect citizens from multiple states and a sovereign nation -- this is not a decision that should be made by one state's agency, and we look forward to our rights under federal law being vindicated," Burie said. "The legal actions will continue."

The Coalition's own federal case, dismissed in the district court as was the Menominee Tribe's case, is still in litigation. The combined state contested case against EGLE's wetland permit (for which final briefs were submitted this past week) will not be decided until March or late April 2020.

Lea Jane Burie, Coalition secretary, said, "It makes no sense to put a metallic sulfide mine 150 feet from the Menominee River that feeds into Green Bay, Lake Michigan, the Great Lakes -- and affects water quality for 40 million people."

Lea Jane told Keweenaw Now she and her husband, Dale, co-founders of the Coalition, put in 12 hours a day working to fight the Back 40 Mine -- attending meetings, doing research, organizing events, communicating with the member group leaders and more.

"We're fighting the fact that Michigan was given the authority over a boundary water for two states," she said. "We're not giving up, and we're not backing down. We're in it for the long haul."*****

Water protector groups participate in community events

Besides speaking out at public hearings, local Michigan and Wisconsin residents opposed to the Back 40 mining project join parades and other community events and hold bridge walks and regular street protests -- displaying signs about their concerns for the environment, especially the river.

Despite recent cold weather, on Jan. 4, a group of residents concerned about the river did a Bridge Walk, sponsored by the Coalition to SAVE the Menominee River, across the Menominee River on a bridge connecting the two states.

On a chilly Saturday, Jan. 4, 2020, concerned local residents participate in a Bridge Walk across the Menominee River to protest the Back 40 mining project. (Photo © and courtesy Wayne Swett)

 
Laura Rowe, foreground, and other participants in the Jan. 4 Bridge Walk display signs protesting  the proposed Back 40 mining project. (Photo © and courtesy Wayne Swett)

Last summer concerned community members and their families participated in local celebration of logging heritage in order to spread the word about the need to protect the Menominee River:

Video © and courtesy Anthony J. Corey of Digital Water Voices.

Tina Lesperance, who dressed as Wally the Water Drop in the above video of the parade, says of Aquila Resources, "All I know is that we will keep fighting them until they leave. They will NEVER have a social license to operate!"

Wally the Water Drop, one of the Coalition's mascots, helps convey concerns for the Menominee River. (Photo courtesy Coalition to SAVE the Menominee River)

José the Blue Heron is another symbolic water protector mascot who appeared in community parades. He was donated by a Milwaukee artist. (Photo courtesy Save the Menominee River)

Mary Hansen, who participates in many of the community actions against the mine, said, "We walk to save our river not only for us but for the children to come. We walk to to save our river for the animals, the fish that swim and for the winged ones.We walk to save our river for the trees, the plants the flowers and for our wild rice. We walk because we are stewards of our land, we are the water protectors."

In Menominee, Mich., Save the Menominee River advocates protest The Ogden Club -- its strong ties to Aquila Resources and its prior Aquila upstairs offices location. Pictured in the group are Mary Hansen, seated and holding "MINE NOT APPROVED" sign; Tina Lesperance, far left; photographer Andi Rich, foreground; and friends. (Photo © Andi Rich and courtesy Mary Hansen)

Andi Rich commented on her photo above for Keweenaw Now: "I participate in these protests because I think it's important to show our opposition in a meaningful and visible way," Rich said. "That area near the bay is beautiful -- we always have amazing sunsets over the church, the view of downtown Menominee on 10th Ave. is a beautiful backdrop, and the people who show up are always so much fun. We share information with unknowing patrons (who are usually grateful for the info). They often do a 180 and find another place to go. We get to make the pro-miners have to justify why they think it's ok to poison people for money, and we laugh. Man do we laugh."******

Notes:

* In 1984, Michigan received authorization from the federal government to administer Section 404 of the federal Clean Water Act in most areas of the state. A state administered 404 program must be consistent with the requirements of the federal Clean Water Act and associated regulations set forth in the Section 404(b)(1) guidelines. Whereas in other states, where an applicant must apply to the U.S. Corps of Engineers and a state agency for wetland permits, applicants in Michigan generally submit only one wetland permit application to EGLE. New Jersey also has a similar exemption. Click here for details.

** See the Menominee Tribe's full Jan. 28, 2020, statement: "Menominee Tribe Disappointed but not Deterred."

*** See our Oct. 2, 2019, article, "Water protectors canoe, kayak on Menominee River to raise awareness of proposed Back 40 mining project's threats to environment, culture."

**** See the full article: "Proposed Mine a Ticking Time Bomb," by Al Gedicks. Posted Dec. 13, 2019 in Urban Milwaukee.

***** To learn more about the Coalition to SAVE the Menominee River, visit their Web site.

****** Visit Save the Menominee River -- Stop the Back 40 Mine on Facebook to learn more about these protests. See also Protectors of the Menominee River.

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