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New Federal Suit Filed Against Back Forty Mine

Issue Date: November 15, 2018

On Tuesday, Nov. 13 the Coalition to SAVE the Menominee River, Inc. filed a lawsuit in federal court seeking review of the federal government's handling of the wetlands permit for the proposed Back Forty Mine.

"As has been well publicized, the EPA and the Army Corps of Engineers have thus far delegated final permitting authority to the Michigan Department of Environmental Quality despite the fact that the proposed Back Forty Mine would be located within 50 yards of the Menominee River in Michigan, and an environmental assessment completed as part of the application process determined that there are a number of potential impacts to the Menominee River as well as to Wisconsin residents" Dale Burie, President of the Coalition said of their group's decision to file the new lawsuit.

He said the EPA had lodged numerous objections to the permit but withdrew those objections at the last minute, based on Michigan's decision to address deficiencies in the permit by imposing material conditions in the permit.

According to Burie, the Coalition's lawsuit is intended to address two issues: (1) Did EPA properly determine that the proposed wetland permit fell within the authority delegated to Michigan; and (2) Was EPA's decision to withdraw its objections to the permit arbitrary and capricious, an abuse of discretion or otherwise not in accordance with applicable law.

"With so many potential issues affecting Wisconsin, decisions regarding the proposed Mine shouldn't be left to a Michigan state agency," Burie declared. "When you have a boundary water and impacts to more than one state, the federal government should be in charge of making permitting decisions and should make those decisions in accordance with the requirements of federal law."

Burie said the Coalition to SAVE the Menominee River, Inc. is a Wisconsin non-profit corporation dedicated to educating and supporting citizens regarding environmental issues affecting the Menominee River, including potential impacts of the proposed Back Forty Mine.

Burie said one of the issues in their latest suit is that in 1984 EPA gave Michigan the right to make determinations for its own waters, but they did not address regulation of interstate navigable boundary waters like the Menominee River.

Efforts 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 have continued for several years.

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, but apparently he has not yet made a decision. That 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 the Aug. 1 federal court proceedings, 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. 

 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 Aug. 2 Burie announced that his organization had filed its contested Case Hearing petition, challenging MDEQ's decision to grant Aquila Resources the wetlands permit.

In a news release announcing that 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."

He said this week that Aquila cannot start actual construction of the mine until all the conditions have been fulfilled.

Burie and other Back 40 opponents maintain that 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 contested case proceedings are reportedly still pending and reportedly will be handled by an administrative law judge in Lansing, Mich.


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