By Michele Bourdieu
LANSING -- Regional environmental groups, the Menominee Indian Tribe of Wisconsin, and water protectors on both sides of the Menominee River -- Michigan and Wisconsin residents -- are celebrating the news that a disputed Wetlands Permit for Aquila Resources’ Back Forty sulfide mine has been denied by Michigan Administrative Law Judge Daniel L. Pulter, concluding a two year review of the contested case.
The permit -- which was under Part 301, Inland Lakes and Streams; and Part 303, Wetlands Protection, of the Natural Resources and Environmental Protection Act (NREPA) -- was contested by multiple petitioners including the Menominee Indian Tribe of Wisconsin, represented by Earthjustice attorneys; the grassroots Coalition to SAVE the Menominee River; and adjacent landowner Tom Boerner. Aquila offered testimonies as an Intervenor in the case.
The Michigan Department of Environmental Quality (MDEQ) -- now the Department of Environment, Great Lakes, and Energy (EGLE) -- sparked controversy when it approved Aquila’s Wetlands Permit in 2018, over the objections of regulatory staff who were prepared to deny the permit. The permit was approved by MDEQ with conditions suggested by the Environmental Protection Agency (EPA).
EGLE regulatory staff testified during the contested case, which was conducted over twenty days on June 3-7, 2019; June 10-13, 2019; August 5-9, 2019; August 12-14, 2019; and October 23-25, 2019. Judge Pulter issued his "Final Decision and Order" on Jan. 4, 2021. The 76-page document gives detailed reasons for the permit denial and cites evidence from witnesses on both sides.
Kathleen Heideman of the Mining Action Group (part of the Upper Peninsula Environmental Coalition, or UPEC), who spoke at several public hearings concerning Back 40 permit applications, applauded Judge Pulter's decision.
The Back Forty project -- intended to mine for gold, zinc, and other metals -- proposes to excavate an 84-acre open-pit sulfide mine, 800 foot deep, on the banks of the Menominee River, 150 feet from the water. Most of the mine site would be covered by waste rock, ore storage, milling facilities and tailings storage. Nearly all of the Back Forty rock is reactive -- capable of producing Acid Mine Drainage (AMD) when exposed to air and water. AMD pollution devastates watersheds and lasts hundreds of years. According to Aquila's plan, tailings and waste rock will be stored on-site during mining; tailings waste will remain on the surface forever. During closure, the open pit mine will be backfilled with waste material. Once this takes place, groundwater contaminated with AMD is predicted to seep into the river.
The permit would have allowed Aquila Resources to destroy wetlands of the Menominee River watershed in order to construct and operate an open-pit sulfide mine, waste storage dam, and mill. Wetland impacts included direct and indirect losses due to excavation, placing of fill, or building parts of the facility on top of wetlands, removing groundwater, permanently changing hydrology, impairing wetland ecosystems, and contaminating the surrounding watershed with toxic dust from mining operations, and causing Acid Mine Drainage.
According to Earthjustice attorney Janette Brimmer, Aquila "refused to provide all of the information the state needed to determine the full environmental impacts the mine will have on the Menominee River and the surrounding area."
Al Gedicks, professor emeritus of sociology at the University of Wisconsin-La Crosse and Executive Secretary of the Wisconsin Resources Protection Council, commented on the scientific testimony presented during the contested case.
"In a stunning rebuke to the leadership of the DEQ, the judge ruled that Aquila’s wetland permit application failed to disclose the extent of wetland impacts and deprived the public of the right to review and comment on the application," Gedicks said. "The scientific testimony in the contested case revealed a consistent pattern of Aquila’s manipulation of scientific research to conceal significant negative impacts to wetlands from the proposed mine."
"Ms. Kristy Wilson, an environmental quality specialist from EGLE’s Water Resources Division (WRD) testified that Aquila consistently failed to provide information requested by the WRD regarding dewatering of the open pit and its effects on wetlands within the project area," Gedicks explained. "Without this information the WRD could not evaluate the impact to wetlands. The decision of former DEQ director Heidi Grether to approve the wetland permit, over the objections of the scientists in the WRD, was a corrupt political act that rejected science in favor of corporate power politics."
In fact, in Section 1C, Administrative Completeness, of his "Final Decision and Order," Judge Pulter comments on Ms. Wilson's testimony during the contested case concerning the lack of reliable identification of wetland impacts.
Judge Pulter writes, "While Aquila eventually landed on approximately 11 acres of direct wetland impacts from the project, the amount of indirect impacts was indeed a 'moving target.' The WRD’s concern with indirect impacts was due, in part, to the effects of pit dewatering on the wetlands within the project area."*
Aquila's use of computer modeling to substantiate anticipated wetland impacts was criticized by several witnesses during the contested case.
From that scientific evidence, the judge then concluded, "Based on the evidence in this case, I find, as a Matter of Fact, that Aquila’s computer groundwater model does not provide a reliable identification of wetland impacts, particularly those related to groundwater drawdown due to pit dewatering."**
Judge Pulter also noted that the permit granted with conditions raised a question: "Whether Michigan law authorizes the deficiencies in the permitting process to be alleviated with conditions in a permit that require the applicant to supply after-the-fact evidence which satisfies the statutory criteria. There are at least five legal bases that demonstrate that such a conditional permit is improper," he writes.
To summarize, he noted the following:
1. The language of the statutes -- both Part 303 and Part 301 -- required that the project be in the public interest -- which a conditional permit cannot determine.
2. In this contested case, a decision must be based on evidence, not on "an applicant’s promise to provide this information to the agency in the future through permit conditions."
3. "[T]he use of a conditional permit impermissibly avoids public participation in the permitting process."
4. If Aquila's revised model determines a double amount of indirect wetland impacts, a second permit would be necessary; and under Part 303 a second permit for one project would be impermissible.
5. If Aquila's after-the-fact evidence fails to meet statutory requirements, "there are no statutory provisions for Aquila to challenge the agency’s after-the-fact determination."
Judge Pulter concluded the permit issued by DEQ with conditions was administratively incomplete, that the application should be denied and the contested case dismissed. He gave many more details to provide a substantive review of the project under Parts 303 and 301.***
Wetlands are strictly protected under state and federal law. Before wetlands can be destroyed, Aquila must demonstrate that the impacts are unavoidable. The applicant failed that test, and so Judge Pulter concluded that Aquila’s Wetland Permit must be denied, strongly stating, "Aquila failed to demonstrate that there are no feasible and prudent alternative locations and methods because it did not proffer evidence of how it had re-designed its site plans with a view toward reducing wetland impacts."****
After citing several testimonies on the project's potential impacts to Menominee cultural sites, Judge Pulter concluded the following:
"Even though these archaeological sites will not be destroyed, they will be affected by the proposed project. From the map contained within the application, dozens of recognized archaeological sites are located in and around the project area. Exhibit P-287 at p 78. These sites are important to the Tribe because this area is an ancestral home of the Menominee people. Whatever 'values' are attributed to these archaeological sites, such values will be affected by the proximity of the mine. For example, a mining project in close proximity to the Colosseum in the City of Rome would affect its 'values.' Therefore, I find, as a Matter of Fact, that the proposed project will have a probable negative effect on historic and cultural values."*****
EGLE issued a statement of agreement with Judge Pulter's decision.
"The Michigan Department of Environment, Great Lakes, and Energy (EGLE) has reviewed the Administrative Law Judge’s decision and agrees with his rationale for denying the wetlands permits issued during the previous administration by our predecessor agency, the Department of Environmental Quality (DEQ)," said Scott Dean, EGLE strategic communications advisor. "The ruling raises valid concerns about the potential impacts on groundwater, and surface water including the Lower Menominee River, which was recently delisted as a federal 'Area of Concern' after 35 years of collaborative restoration efforts."
Petitioners welcome decision to deny wetlands permit
Menominee Indian Tribe of Wisconsin:
The Menominee Indian Tribe of Wisconsin welcomed the decision to deny the wetland permit. For over a decade the Menominee Tribe has been opposing the Back Forty Mine project that will destroy Menominee sacred cultural sites and harm the Menominee River, the sacred place of origin of the Menominee Tribe.
"This decision is one that we can all celebrate," said Joan Delabreau, Menominee Indian Tribe chairperson. "It reaffirms the Tribe's fight to protect against harmful sulfide mining that will disrupt and destroy the Menominee River, its wetlands, and our cultural and burial sites near the mine. The Menominee Tribe have long known that the Menominee River is no place for a mine like the Back Forty Mine Project. The Judge determined the same, acknowledging the fact [that] the Back Forty Mine is too dangerous for the area and will devastate the environment and the communities."
"Menīkānaehkem applauds Judge Pulter's decision, in denying this wetland permit," Reiter said. "Menīkānaehkem has always been a strong defender of our beautiful Menominee river and our vast Menominee cultural resources located around the river." Inset photo: Guy Reiter speaks out against the Back 40 mining project during a public hearing by the former DEQ in Stephenson, Mich. (Keweenaw Now file photo)
Menominee tribal members Dawn Wilber and Wayne Swett -- co-organizers of two annual canoe trips by Native and non-Native water protectors on the Menominee River, calling attention to the threats posed by the Back 40 mining project -- offered Keweenaw Now their comments on the decision.
"I am absolutely ecstatic about this decision," said Dawn Wilber, who teaches Menominee language and culture at the Menominee Indian High School on the Menominee Reservation where she lives. "I know there is the possibility of an appeal on their behalf. That’s to be expected, I guess. But we will all keep on with our prayers and will not stop our work protecting our precious Menīkān sēpēw or as it’s known now the Menominee River."
Wayne Swett expressed his appreciation for the petitioners in the contested case and applauded Judge Pulter's decision.
"The day I read the decision letter on our page I had to re-read it," Swett said. "Dawn Wilber called me and we celebrated the decision. I'd like to say Waewaenon (thanks) to the Menominee Nation, The Coalition to SAVE the Menominee river and Tom Boerner for challenging the wetland permit."
"This is a huge win for us and a costly loss for Aquila Resources," Swett added. "I hope investors divest. Aquila's stock isn't doing so well. I think the last time I checked, which was a while ago, it was at 10 cents a share. Aquila has financial problems that are wearing them down. In the perfect world Aquila would Pack up and move on but we must still be vigilant bcuz they are not out of options yet. Water Protectors can celebrate this victory. I'd also like to give a shout out to Judge Pulter for presiding over this case and ruling in favor of us."
Coalition to SAVE the Menominee River
Dale Burie, president of the Coalition to SAVE the Menominee River, said the Coalition is very pleased with Judge Pulter's decision to deny the wetlands permit.
"Another issue we raised was that Aquila did not properly assess the alternatives to avoid wetland impacts. Again, the Judge agreed.
"And, on the big question of whether EGLE could issue a permit with conditions that would have allowed Aquila to submit new and updated modeling to support the wetland impacts, the Judge said such conditional permits are not allowed.
"The decision itself is over 70 pages long, and our attorney is still assessing what it all means. We do understand that the next step, should any of the parties so choose, would be to seek review from the Environmental Permit Review Commission. That request would have to be made within 21 days." Inset photo: Dale Burie testifies against the Back 40 project during a public hearing held by the former MDEQ. (Keweenaw Now file photo)
Coalition member Mary Hansen, who has led protests against the Back 40 Mine, especially those confronting the Ogden Club, supporters of Aquila, in Menominee, Mich., told Keweenaw Now the fight against Aquila's proposed mine would continue.
"We haven't protested since October because of Covid," Hansen said. "We decided because Friday was New Years Day. We got together to wish the River a Happy New Year. We froze for an hour but it felt so good to be together again."
"We never give up and we will not back down," Hansen said. "We're stronger together Red, White, Black and Brown. We're 'Water Protectors.' We do what we say, Protecting our water day after day. There is strength in our numbers when we stand hand in hand. Don't threaten our water, Stay off of our land! We'll fight you Aquila from dusk until dawn. We'll fight for our water until you are GONE!"
Coalition member Tina Lesperance, who participated in the Menominee canoe trips as support staff and photographer, is one of the original members of the Facebook group Save the Menominee River, Stop the Back 40 Mine. She was one of the first to announce the Wetlands Permit denial on that Facebook page.
"In 2018, the Water Resources Division of the MDEQ deemed that the Wetlands Permit application submitted by Aquila Resources did NOT meet their requirements to safely protect surrounding wetlands, surface and groundwater," Lesperance noted. "They recommended the permit be denied. In a political move by then state senator Tom Casperson and a few other pro-mine lawmakers in the U.P., the permit application was given to Gov. Snyder's appointed DEQ Director, Heidi Grether, to approve, which she did. The Wetlands Permit denial by Judge Daniel Pulter was a decision every water protector prayed for and our prayers were answered. We will continue to stand against Aquila and protect our beautiful Menominee River."
Coalition member and retired teacher Diane Woods of Marinette, Wisconsin, lives down river from the wetlands.
"My father taught me how to swim in the Menominee River over 60 years ago," Woods told Keweenaw Now. "The rejected permit for the wetlands will ensure our grandchildren can learn to swim in this clean beautiful river too."
Karen Prange owns both a house and a cabin on the Menominee River.
"I joined the Coalition to do whatever I can to protect this beautiful river. I’ve lived here for 53 years," Prange said. "I love the river! The mine site is about 20 miles, I think, up river from me."
Coalition member Nancy Buyarski Dunn, who was born and raised in Menominee County and owns her family home and property there, commented on Facebook in response to the announcement on the denial of the permit.
"After all the work the Coalition and all the others did on the court cases it is wonderful for all involved to celebrate this huge success," Dunn posted.
In a message to Keweenaw Now, Dunn added, "The Coalition is an extraordinary group of people who have learned to peacefully engage in a wide range of efforts to stop the Back Forty Mine."
Petitioner Tom Boerner
Adjacent landowner Tom Boerner, a petitioner in this contested case, has 380 acres of woodlands, wetlands and streams and over one mile of Menominee River frontage near the mine site. Boerner says he and his family have interacted with persons from the Menominee Nation for over 100 years. He shared the following positive response to Judge Pulter's decision with Keweenaw Now:
"I am in agreement with Judge Pulter's decision. His decision mirrored the arguments we've been making to EGLE and ultimately in our contested case hearing. This decision is a very big win for the truth. And, regardless of what Aquila is telling the world about what they do have in place: the fact is they don't have a valid mining permit (part 632). How did this happen? Last year Aquila filed an amended mining Permit application. EGLE determined the changes made by Aquila were significant. That prompted the Part 632 review process to begin all over. Aquila fails to tell people that a contested case hearing IS PART OF THE PERMIT PROCESS. And, until the process is completed, the Part 632 Permit is not in play and Aquila cannot mine. As of earlier today the Part 632 mining Permit amendments were being contested in an ongoing Part 632 hearing. Again, and until that case concludes the Part 632 mining Permit is not valid. NEWS FLASH: And, a few hours ago Aquila's attorneys asked the judge (same as who wrote the wetlands permit opinion) to put the part 632 Amended contested case hearing, which was scheduled to start testimony in 2 weeks, on hold for at least 2 more months. EGLE agreed and so did the Menominee Indian Tribe to allow this. And, in 2 months, maybe more, there would be a meeting between the parties to discuss what Aquila wants to do -- move on with the hearing or drop their permit request.
"The judge agreed to Aquila's request -- so no Part 632 permit hearing for now. In my opinion this action on Aquila's part is the direct result of the judge's decision outlining significant issues with Aquila's information and Aquila's lack of money -- as Aquila's Q3 financial statement showed them to only have enough money to last through part of Q4 2020 -- unless they were able to raise more. Aquila has allegedly spent 100 million dollars on this mine -- and they don't have a mine? Aquila is a Canadian corporation and the people in Canada make millions per year in compensation. There are many issues that are also against Aquila. There is a Public County Road running over what would be the center of their open pit. They would be less than 147-feet from the Menominee River, a State boundary water with Wisconsin. They would be about 1-mile from Shakey Lakes County Park, the only park in Menominee County that pays for itself and actually subsidizes most of the others. This park is full throughout the summer and is the source of millions of dollars in tourist-generated revenues. Being within feet of Wisconsin and generating billions of pounds of toxic waste -- this would be a disaster now or for the next dozens of generations."
Environmental groups applaud Wetlands Permit denial
Front 40 Environmental Fight
Superior Watershed Partnership and Land Conservancy
"We applaud the decision to deny this permit," said Carl Lindquist, Superior Watershed Partnership and Land Conservancy executive director. "We’ve worked with eight Native American tribes and other stakeholders to list the Menominee among American Rivers’ Top Ten Most Endangered Rivers in the United States. We are convinced that Aquila’s open pit mine is too risky. In addition to exposing sulfide based ore, the mining process would use cyanide and other toxins, a stone's throw from one of the largest tributaries to Lake Michigan. The risks to wetlands, groundwater, surface water, the Great Lakes and the cultural legacy of the Menominee Indian Tribe are simply too great."
Upper Peninsula Environmental Coalition (UPEC)
"This is great news for the people of Wisconsin and Michigan," said Horst Schmidt, president of the Upper Peninsula Environmental Coalition (UPEC).
"Aquila’s inability to submit a permit without major deficiencies
reinforces our concern that this company is unable to meet the minimum
standards for developing a safe mining operation. It's a shame people
must waste their time for years fighting to keep the State of Michigan
from approving a mine that threatens one of Lake Michigan's best sports
fishing habitats, even as Michigan and Wisconsin nonprofits and
environmental agencies work jointly to restore sturgeon habitat in the
Menominee River. I congratulate the Administrative Law Judge on this
wise environmental ruling."
UPEC will hold a Livestream Event "A WIN FOR WETLANDS" at 7 p.m. Thursday, Jan. 14, on Facebook and Zoom, with a panel discussion on this important environmental legal decision. Panelists will include Al Gedicks of the Wisconsin Resources Protection Council, Dale Burie of the Coalition to SAVE the Menominee River, Guy Reiter of Menīkānaehkem, and Kathleen Heideman of the Mining Action Group. Click here for details on how to join the event.
Editor's Notes:
* See p. 24 of the "Final Decision and Order" on this contested case.
** See p. 29 of Judge Pulter's "Final Decision and Order" and preceding discussion.
*** See pp. 37-40 in above document.
**** See Summary, p. 73, and pp. 54-61 on alternatives in above document.
***** See pp. 62-65 in above document.
****** Keweenaw Now published three articles on the 2020 Menominee Canoe trip:
"Guest article: Hosting the water protectors on the Menominee River"
To read about the first Menominee Canoe Trip in July 2019, see: "Water protectors canoe, kayak on Menominee River to raise awareness of proposed Back 40 mining project's threats to environment, culture."
Keweenaw Now wishes to thank all the water protectors who contributed photos to this article and photos/videos to our previous articles.
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