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Friday, May 14, 2021

Opponents of Back 40 mining project welcome Aquila's withdrawal from two contested permits but remain vigilant as company announces new plans

By Michele Bourdieu
This map of Aquila Resources' proposed Back 40 mining project shows wetlands in the area of the mine site, which is only 150 feet from the Menominee River. Aquila recently withdrew from its appeal on the January 2021 denial of its wetland permit. Click on map for larger version. (Map courtesy Kathleen Heideman of the Mining Action Group)

The Menominee Indian Tribe of Wisconsin and environmental groups opposed to Aquila Resources' Back 40 mining project near the Menominee River welcomed news on May 11 that Aquila has determined (1) not to proceed with its appeal of the January 2021 decision by Administrative Law Judge Pulter to deny the Wetlands Permit previously issued for the Back 40 and (2) not to proceed with the contested case of the amended Part 632 Mining Permit for the Back 40 -- a projected open-pit sulfide mine for gold, zinc and other metals.*

However, groups opposed to the project remain vigilant and concerned about potential pollution of the Menominee River, wetlands and ecosystem as well as damage to the Menominee tribe's historical and cultural resources, including Native burial mounds and prehistoric gardens located in the area of the proposed mine site.

This ancestral burial mound is among the archaeological sites near the Menominee River that could be impacted by the proposed Back 40 mine. (Keweenaw Now file photo)

Environmentalists have long pointed out that Aquila's permits are for an open-pit mine with an estimated life of 7 years while the company has presented the project to investors as including an underground mine that would lengthen the life of the mine to  16 years. This underground "phase" is not included in the permits granted so far by Michigan's Department of Environment, Great Lakes and Energy (EGLE) or EGLE's predecessor, the former Michigan Department of Environmental Quality.

Opponents of the mine in both Michigan and Wisconsin have presented many reasons why Aquila lacks a social license to operate a mine that would be located only 150 feet from the Menominee River, which forms a natural border between the two states and which the Menominee people consider the cultural origin of their tribe.**

Menominee Tribe defends cultural sites near proposed mine site

"The position of the Menominee Indian Tribe of Wisconsin has consistently been that approval of these permit applications is inappropriate without an understanding of the true impact of a proposed mine right next to the Menominee River, and we are glad to see the permits withdrawn," said Gunnar Peters, Chairman of Menominee Indian Tribe of Wisconsin. "The proposed project site is sacred to the Menominee people and should remain protected from destruction."

The tribe has been in litigation against Aquila, with the assistance of Earthjustice attorneys, joining with other opponents of the mine in contested cases over the Michigan permits.

"This victory follows five years of fighting on behalf of the Menominee Tribe to protect the river and the Tribe’s cultural heritage, including the last intact Menominee agricultural village complex remaining in the state of Michigan," said Earthjustice Attorney Gussie Lord. "The state of Michigan should realize that Aquila Resources has never been honest, nor transparent, about its plans, and that this project cannot be built without pollution, impairment and destruction of the Menominee River and its ecosystem.

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

Menominee tribal member Wayne Swett, co-organizer of two annual four-day canoe trips down the Menominee River to call attention to the Back 40 -- in July of 2019 and 2020 -- told Keweenaw Now he sees Aquila's withdrawal of the appeal on the Wetlands permit as a victory. Moreover, their new plan could be long and costly.

"I guess they are going back to the drawing board to present a whole new plan that would be for an underground mine as I understand," Swett noted. "I would imagine everything up to now concerning the permits would be null and void and they would have to start the whole process over again. This would mean a long drawn out process. Aquila will never get a social license and the needed permits to start a mine. They are fighting a large costly battle on many fronts. You could say they are fighting the 4 directions: Tom Boerner, The Menominee  nation, the Coalition to Save the Menominee river and Earthjustice. It's going to be costly to fight on these fronts. Aquila stock isn't doing very good and investors are shying away; they don't want to lose money on a company that's not making forward progress.

"I would like to commend the parties involved in keeping Aquila from progressing and to the justices hearing these cases. Politicians can be bought and swayed but the court is the one with common sense to hear this case. We are gradually wearing down Aquila and like what happened in the Penokees with GTAC, we are going to chase them (Aquila) out of the area. Common sense tells ya to pack up and move on but I guess Aquila doesn't even have that."

Dawn Wilber, Menominee tribal member and teacher of Menominee language and culture at the Menominee Indian High School on the Menominee Reservation, was co-organizer, with Wayne Swett, of the canoe trips. She also participated in the Menominee women's ceremonies to protect the water during those trips.

"I was very pleased to see the notice about the withdrawal but still remained a little hesitant to actually celebrate because of Aquila's new plans," Wilber told Keweenaw Now. "We must still stay vigilant in our work for our Mother Earth and our Water."

Aquila announces new Feasibility Study to include underground mine plans

Aquila's lack of transparency is evident in the fact that only now is the company publicly admitting their plan for an underground mine to be extended from the open pit mine described in the permit applications.

In their May 11, 2021, press release, Aquila states they are engaging Osisko Technical Services (OTS) to lead an optimized feasibility study that will include their plans for the underground mine, which were left out of the original permits.

"By incorporating the underground mine plan in the Feasibility Study and modifying the Project footprint, the Company expects to demonstrate substantially reduced surface impact, including wetland impacts, and a longer mine life for the benefit of all stakeholders," Aquila states in the press release.

Aquila appears to depend on the feasibility team to come up with a new design that will include the underground mine -- a study to be completed in the fourth quarter of 2021.***

Coalition to SAVE the Menominee River, activist experts, continue Back 40 opposition

Dale Burie, president of the Coalition to SAVE the Menominee River, issued this statement in reaction to Aquila's announcement:

"The Coalition to SAVE the Menominee River is pleased that the decision of the Administrative law judge will stand and our hard work and efforts have contributed to the protection of the Menominee River and the surrounding wetlands from the detrimental effects of the proposed Back Forty mine. While we expected to prevail before the review panel, it is a welcome development.

"However, as is always the case, the fight goes on. Aquila indicated in its request to abandon its appeal of Judge Pulter’s decision, that it will be submitting a new mine application, later this year, that will for the first time include underground mining. Of course, we always expected going underground to be part of Aquila's long-term plan. While Aquila will try to spin this as a new strategy to avoid or minimize wetlands impacts, we intend to remain diligent in our efforts and have significant concerns that extensive underground mining and the corresponding groundwater drawdown will have as much or even more impacts on the watershed and could be an even greater threat to the health of the Menominee River. Our Coalition and our partners remain steadfast in our resolve and will continue to fight to protect the Menominee River for all to enjoy."

Dr. Al Gedicks, executive secretary of the Wisconsin Resources Protection Council and professor emeritus of sociology at the University of Wisconsin-La Crosse, who has warned of the dangers of the huge tailings dam that the Back 40 project would place close to the Menominee River, shares the Coalition's concerns that Aquila's new plan could have even greater destructive impacts on the environment. He sent the following comments on Aquila's new permitting plans to Keweenaw Now:

"After Aquila's decision not to appeal the denial of their wetlands permit they reaffirmed plans to submit a new Mining Permit application that will include  both the open pit and underground mine plans," Dr. Gedicks writes. "To minimize the cost and delay of submitting completely new mining, wetlands, air quality, wastewater discharge and dam safety permit applications, the company would like to submit a consolidated mining permit that would 'compress the timeline to permit issuances.' This would place an unfair financial burden on citizens and the Menominee Tribe to review the thousands of pages of technical studies in a short time period. A sequential permit process that allows adequate time for scientific review of each permit, as has been the case in the past, would allow for greater public participation and transparency in the process."

Dr. Gedicks added his concerns that the impacts of the combined open pit and underground mining project would be unacceptable.

"The expansion of the scope of the mine operation means that every aspect of the project has the potential for significant and unacceptable impacts to the wetlands, air and water quality, groundwater, sacred sites and the safety of the enormous quantity and toxicity of the mine waste in the tailings dam," Gedicks notes. "The mine expansion will increase the amount of mine waste in the dangerously unstable upstream construction design of the tailings dam. Aquila's assertion that an expanded mine operation will avoid direct impacts to wetlands is scientific nonsense. These issues cannot be addressed in a rushed and haphazard manner  to accommodate Aquila's promises to its investors."

This photo shows a diagram of the proposed Back 40 tailings dam as it would be placed next to the open pit in the center. If an underground mine is added, the tailings dam (which presently has a dangerous, unstable design) would have to hold even more mining waste. (Photo courtesy Kathleen Heideman)

Kathleen Heideman of the Mining Action Group, who has studied Aquila's permits in detail, also commented on Aquila's lack of transparency.

“Since 2015, Aquila has been telling investors and Canadian regulators that the Back Forty would be a 16-year mine, using both open pit and underground methods," Heideman writes. "But they told Michigan regulators it would be a 7-year mine, open pit only. Now the whole design of the project will be changing again, if you believe the latest corporate press release. Aquila knowingly misrepresented the scope of the project in their permit applications, which is against the law."

Heideman also questioned Aquila's recent claims concerning their NPDES (National Pollutant Discharge Elimination System) permit and their Air permit.

"Currently Aquila claims they can 'keep' their NPDES and AIR permits -- but these claims appear baseless, since both permits depend on specific pollution calculations related to size of mine, amount of water to be treated, mill capacity (throughput), duration, type of mining operation (emissions from fugitive dust? ventilation stack?), facility layout, etcetera -- none of which remains accurate," Heideman said. "Both the NPDES and Air Permits expire this year, and ought to be voided or rescinded."

Heideman offered a positive note for those opposing the Back 4O: "It is a really great win for those who have been fighting the Back Forty project and a fitting end to a very bad wetland permit," she said. "Lawyers cost money, which Aquila clearly doesn’t have."

Coalition member Tina Lesperance confirmed that financial statement, noting, "Their (Aquila's) stocks have been steadily falling. They are having a hard time keeping it at .07."

Lesperance, who has worked closely with Menominee leaders of canoe trips on the river to protest the Back 40 and with Coalition community activities calling attention to the dangers of the Back 40, also expressed determination to continue the fight.

"We knew from the beginning that Aquila planned to mine underground, even as far as possibly going under the Menominee River," Lesperance said. "Aquila has been trying to get this mine going for almost 20 years and failed. Times have since changed. People are more aware of the dangers to the environment and how we have to protect our water. Governments around the world are realizing the importance of changing our ways and protecting the environment. We have Water Protectors who will never give up their fight to protect our waters and Mother Earth. Aquila's attempts to mine on the Menominee River failed for 20 years and will continue to fail, as we will never give up the fight to protect our precious river!"

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

Another Coalition member who says she will never give up the fight is Mary Hansen, who has been organizing regular Friday protests against Back 40 in front of the Ogden Club, a Menominee, Mich., business that supports Aquila's project.

Reacting to Aquila's recent announcement of their new plans, Hansen commented, "Their story changes yearly. Ours remains the same. No mine next to, under or near our Menominee River."

Adjacent landowner Tom Boerner says he has been participating in all the contested case hearings against Aquila's permits.

"I started opposing this back in 2002 when I discovered persons at Aquila had claimed mineral rights that didn't belong to them," Boerner said. "From that that point on I knew we were dealing with people who are less than honest. I helped write the parts 632 law as I was appointed to a work group. That went from 2003 to 2004. Unfortunately all the good work we did was negated as once we gave our language to the legislature they took it in the back room and gutted it in favor of mining. So, I've been involved in this thing from the beginning."

Reacting to Aquila's latest announcement on the permits and the underground mine plans, Boerner said he believes there is a disconnect between what Aquila tells the State of Michigan and what they tell the rest of the world and that the State "is seen as turning a blind eye to this fact, and the lack of accountability is a significant concern for the public regarding the integrity of the permitting process -- for all permits." 

Boerner added, "Now is not the time to stop or rest. Now is the time to make sure we tell the world that the State of Michigan was manipulated and thanks to a small handful of people at one group within EGLE thankfully integrity found its way into the permitting process and going forward a standard for truth has been set.

Notes:

* For background, see our Jan. 11, 2021, article, "Water protectors celebrate judge's denial of Back 40 sulfide mine Wetlands Permit."

** Click here to learn about the origins of the Menominee Tribe at mouth of the Menominee River.

*** Click here for Aquila's May 11 press release.

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