Aquila, Back Forty Mine Foes Comment On Permit DecisionIssue Date: January 13, 2021
On Monday, Jan. 4, Judge Daniel Pulter, Administrative Law Judge for the Michigan Office of Administrative Hearings and Rules, issued a decision denying the prior issuance of a Wetlands Permit to Aquila Resources for its Back Forty mine project on the banks of the Menominee River in Lake Township, Michigan, about 20 miles north of Menominee.
The Wetlands Permit is the last of four permits needed to allow actual construction of the mine to begin.
The ruling came in response to an an administrative contested case challenge petitioners had filed in opposition to issuance of the Wetlands Permit by the Michigan Department of Environment, Great Lakes, and Energy (EGLE) on June 4, 2018. In a news release commenting on their court victory, mine opponents noted the agency had 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 contested by multiple petitioners, including an adjacent landowner, the Menominee Indian Tribe of Wisconsin, represented by Earthjustice attorneys, and the grassroots Coalition to Save the Menominee River.
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."
The judge convened an evidentiary hearing in June 2019, which ended in January 2020. In his Jan. 4, 2021 decision, Judge Pulter determined that Aquila's groundwater model does not provide a reliable identification of wetland impacts and therefore found the permit application to be administratively incomplete. He also determined that Aquila did not provide a complete assessment of potential alternatives to its proposed plan.
The ruling concluded a two year review of the contested case. According to an Aquila news release, the permit application was based on years of environmental baseline work and a thorough review process including comment periods and public hearings.
The Jan. 4 decision was hailed by mine opponents as a victory for the environment, and drew strong objections in an Aquila Resources news release on Jan. 5, which stated:
"The Company strongly disagrees with the Judge's decision, which is based in significant part on what the Company believes is a misunderstanding of the information concerning the potential for indirect wetlands impacts associated with the Back Forty Project.
"The decision establishes a permitting approach that markedly departs from wetland permits issued for other mining projects in the Great Lakes region. Aquila worked for several years with EGLE staff during the permitting process to address the complex technical issues associated with estimating potential indirect wetland impacts, landing on an approach that complied with federal U.S. Army Corps guidelines for estimating and permitting such impacts for mining projects.
"The Wetlands Permit was issued with specific conditions that must be satisfied prior to the commencement of construction and operations, including a condition that required EGLE to accept an updated groundwater model. During the 31 months since the Wetlands Permit was issued, Aquila has been working constructively with EGLE to satisfy the conditions, and the Company planned to complete the updated groundwater model in 2021. The Company will continue to work with EGLE and believes it will successfully resolve the issues cited in the Judge's decision," the Aquila news release stated.
It concluded, "Barry Hildred, President & CEO of Aquila, commented, "Obviously, we are disappointed by the Judge's decision. The Company is evaluating its alternatives, which include the submission of an updated permit application or appealing the decision to the EGLE environmental review panel. Aquila has worked diligently to limit impacts to surrounding wetlands and is only directly impacting 11.2 acres of regulated wetlands. Having reviewed the decision, we believe that Aquila will be able to resolve the cited issues and remain confident that Back Forty will be a safe, disciplined operation that promotes and supports local community socio-economic development and is protective of the environment.'"
In response to the ruling, a joint statement was issued by Al Gedicks of Wisconsin Resource Protection Council; Dale Burie, Coalition to Save the Menominee Rive; Guy Reiter, Menikanaehkem; Ron Henricksen, Front 40 Environmental Group; Kathleen Heideman, Mining Action Group, Dave Harmon, Upper Peninsula Coalition, and Carl Lindquist, Superior Watershed Partnership.
The statement declared that regional environmental groups were celebrating the news, and went on to explain: "The Back Forty project 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 the statement.
"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. Environmental groups claim that the Back Forty's environmental impacts could be significantly reduced by using feasible, common-sense alternatives." the Mining Action Group's statement continued.
They say 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, and that 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 acid-mine drainage.
Aquila Resources Inc. is a development-stage company focused on high grade and gold-rich projects in the Upper Midwest, USA. Aquila's experienced management team is focused on advancing pre-construction activities for its 100%-owned gold and zinc-rich Back Forty Project in Michigan," according to their news release.
Aquila describes its flagship Back Forty Project as, "an open pit volcanogenic massive sulfide deposit with underground potential located along the mineral-rich Penokean Volcanic Belt in Michigan's Upper Peninsula. Back Forty contains approximately 1.1 million ounces of gold and 1.2 billion pounds of zinc in the measured & indicated mineral resource classifications, with additional upside potential."
Aquila has two other exploration projects in Wisconsin: Reef Gold Project located in Marathon County, Wisconsin and the Bend Project located in Taylor County, Wisconsin. Reef is a gold-copper property and Bend is a volcanogenic massive sulfide occurrence containing copper and gold.
On Dec. 22, 2020, the Ingham County Circuit Court in the State of Michigan upheld the final decision of EGLE to issue the Back Forty Mining Permit after a lengthy contested case hearing initiated by two petitioners. Subsequent to its issuance by EGLE, the Mining Permit was upheld by the Judge and an environmental review panel made up of technical experts from various fields.
The Mining Permit is one of four foundational State permits required for the commencement of construction and operations at Back Forty. In addition to the Mining Permit, regulators in Michigan have previously granted an Air Permit, Wetlands Permit, and a Water Discharge Permit for the Back Forty Project.
A news release from mine opponents states that wetlands are strictly protected under state and federal law, and 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 failed to demonstrate that there are no feasible and prudent alternative locations or methods and the permit must be denied," the joint news release stated.
Davis & Kuelthau attorney Ted A. Warpinski, who represented the Coalition to Save the Menominee River, said of the decision: "Judge Pulter issued a thorough and thoughtful decision recognizing the many flaws with Aquila's wetlands permit application and rejecting the attempt by EGLE to correct those flaws with improper permit conditions. We are grateful for the cooperative efforts of the Earthjustice attorneys representing the Menominee Tribe as well as the diligent efforts of Mr. Boerner who joined us in challenging this wetland permit. We encourage Aquila to accept that this is simply not a suitable location for a mining operation."
The mine site is an important location for members of the Menominee Tribe of Indians, who were represented in the contested case proceedings by Earthjustice attorneys on behalf of the group "Menikanaehkem," which is headed by Executive Director Guy Reiter. Reiter said their organization applauded the decision, and declared, "Menikanaehkem has always been a strong defender of our beautiful Menominee River and our vast Menominee cultural resources located around the river."
Ron Henriksen, spokesperson for the Front 40 Environmental Fight, added, "We are so appreciative of the hard work by individuals, tribes, and environmental organizations which helped the judge reach this important decision. Front 40 Environmental Fight was founded in 2003 to help defend the Menominee River and Shakey Lakes from the hazards of sulfide mining; for the past 17 years, we have informed the public about the dangers of sulfide mining through education and outreach " and the community responded overwhelmingly, rejecting Aquila's dangerous Back Forty mine! We thank everyone who is working to protect our wetlands, and the Menominee River."
Kathleen Heideman, a member of the Mining Action Group, declared, "This decision is a thoughtful, clear-eyed rebuke of Aquila Resources. Aquila's approach to permitting the Back Forty project has been hasty and incompetent, and reveals a disregard for Michigan's natural resources. The decision demonstrates that the Wetland Permit was subject to denial for dozens of reasons " critical data was never provided to regulators, hydrological modeling was unsupported, and statutory requirements were not met. Most critically, Aquila failed to undertake any meaningful review of the feasible alternatives, in order to minimize the impacts to wetlands, or avoid wetlands altogether.
Horst Schmidt, president of the Upper Peninsula Environmental Coalition, called it great news for the people of Wisconsin and Michigan. "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 the Great Lake'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," Schmidt concluded.
Al Gedicks, executive secretary of the Wisconsin Resources Protection Council, called the permit application "...a fraudulent application that prevented the public from recognizing the full extent of the harm to wetlands from this project," and described Aquila's conduct in this case as "ethically reprehensible."
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