Court Battles Continue Over Back Forty MineIssue Date: August 9, 2018
Efforts continue on several fronts to halt development of the controversial Back Forty Mine near the banks of the Menominee River in Stephenson Township, Mich., about 15 miles upstream from the cities of Marinette and Menominee and the mouth of the river into the waters of Green Bay and Lake Michigan.
On June 4 of this year Michigan Department of Environmental Quality (MDEQ) announced that it had issued a wetlands permit for the mine, which was the fourth and final permit required before Aquila could begin the project. The MDEQ had previously issued mining, air, and surface water discharge permits.
In U.S. Eastern District Court in Green Bay on Wednesday, Aug. 1, Judge William C. Griesbach heard arguments for and against issuance of permits for the mine. Judge Griesbach is considering the case, and is not expected to announce his decision for several weeks.
Last Wednesday's Federal Court hearing was just one of the steps in settling a lawsuit brought by the Menominee Indian Tribe of Wisconsin against the Federal Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers for what they claim was an improper delegation of their permitting responsibilities to the State of Michigan.
Since that hearing, separate petitions for Contested Case Hearings in the State of Michigan have been filed with MDEQ by the locally based non-profit Coalition to SAVE the Menominee River, Inc., and the Menominee Tribe of Indians. Both are challenging MDEQ's decision to grant Aquila Resources the wetlands permit.
Opponents of the sulfide mine say the operation will adversely affect wetlands next to the Menominee River and local groundwater on both sides of the river, as well as the river itself and possibly Lake Michigan, as well as adversely impacting numerous sites of cultural and historic significance to the Menominees.
Represented by Earthjustice and tribal attorneys, the Menominees filed suit in January of 2018, charging that the federal agencies have abandoned their obligation under the Clean Water Act to exercise jurisdiction over wetland permits for the mine.
In court on Aug. 1, attorneys for EPA, the Corps of Engineers and Aquila Resources, Inc. asked that the Tribe's lawsuit be dismissed, and decision on that request is pending.
Attorneys representing the tribe argued that by allowing the State of Michigan to oversee what should have been a federal permitting process, the federal agencies violated requirements of the Clean Water Act.
Those representing the Menominee Tribe's interests include Earthjustice Attorney Janette Brimmer; Attorney Lindzey Spice, for the Menominee Indian Tribe of Wisconsin, and Melissa Cook, intergovernmental affairs manager for the Menominee Tribe of Wisconsin.
Menominee Tribal Chairman Doug Cox and other members of the Tribal Legislature attended the U.S. District Court proceedings in Green Bay.
There has been strong local opposition to the mine, particularly from the Wisconsin side of the Menominee River, which is also the border between Michigan and Wisconsin.
County boards and various municipalities in Marinette, Oconto, Menominee and several other Wisconsin counties overwhelmingly passed resolutions opposing the mine.
On Thursday, Aug. 2, Dale Burie, president of the Coalition to SAVE the Menominee River, Inc., announced that his organization had filed the contested Case Haring petition, challenging MDEQ's decision to grant Aquila Resources the wetlands permit.
In a news release announcing the petition, Burrie declared, "There has never been a metallic sulfide mine that successfully avoided polluting area water supplies. Since the Menominee River is the Boundary Water between Michigan and Wisconsin, metallic sulfide mining near the river has the grave potential to impact surface and groundwater resources on both sides of the river and damage water quality of the municipal water supplies for the cities of Menominee, Michigan and Marinette, Wisconsin, which in turn threatens human health. The fact that these risks remain unevaluated is evident when looking at 30 pages of conditions that are to be completed before startup."
"In addition to water quality, degrading the Menominee River affects fish and other aquatic life, wildlife, tourism, property values of taxpayers on both sides of the river, and disturbs the Menominee Indian Tribe of Wisconsin's ancient burial grounds," the news release continues.
Burrie's home borders the Menominee River on the Wisconsin side, in the Wagner area north of Marinette. He said the Coalition to SAVE the Menominee River, Inc. is a 501(c)(3) non-profit corporation that consists solely of volunteers; there are no salaries.
Many Coalition members live directly across the river from the proposed mine site.
"The Coalition represents the interests of individuals and groups concerned about the effects of the proposed Back Forty mine," Burrie said. "The Coalition echoes the opposition voiced by groups such as River Alliance of Wisconsin, the Sierra Club, Freshwater Future, the Front 40 Group, numerous additional environmental organizations and municipalities, as well as thousands of concerned citizens living in Michigan and Wisconsin, in opposition to the proposed Back Forty project."
The Coalition to SAVE the Menominee River, Inc. is represented by environmental attorneys Ted A. Warpinski of Davis & Kuelthau in Green Bay, Wisconsin, and Bruce Wallace of Hooper Hathaway in Ann Arbor, Michigan.
In a news release issued on Monday, Aug. 6, the Menominee Indian Tribe of Wisconsin announced that on Friday, Aug. 3 it had filed its own petition for a contested case hearing on the DEQ's issuance of the wetlands permit.
Tribal attorneys and Earthjustice attorneys contend granting the permit was contrary to Michigan law and happened in spite of written objections of its own Water Resources Division. The petition argues that the application left out critical information on the river and wetlands system, and is based on promises that the developer would provide information down the road."
Cox, Menominee Tribe chairman, said their tribe had lived in the mine area since time immemorial and the operation will affect areas of historical interest to them, including burial grounds, agricultural sites and ceremonial sites. They also say in its decision to issue the wetlands permit the MDEQ had ignored objections from its own Michigan tribes and members of the public.
The contested case proceedings are reportedly to be handled by an administrative law judge in Michigan.
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