RE:RE:Activity at Mine SiteSince you asked, here's a rundown on litigation from the "News" tab of my website, back40film.com (posted last November).
The Coalition to SAVE the Menominee River, Inc., filed a lawsuit against the mine in federal court on Nov. 13, 2018, claiming that the federal government mishandled the project's wetland permit. A similar lawsuit was filed on Jan. 22, 2018, by the Menominee Indian Tribe of Wisconsin.
Meanwhile, two challenges to the Back Forty mining permit are wrapping up, with decisions pending, and three challenges to the project's wetland permit are just getting started. These "contested cases" have been assigned to Administrative Law Judge Daniel Pulter in the Michigan Department of Licensing and Regulatory Affairs. [Ed. note: anticipated decision date for first group of contested cases has been pushed back to March].
The petitions to contest the Back Forty mining permit were filed by Thomas Boerner, who owns land adjacent to the mine site, and by the Menominee Tribe.
Boerner claims that the Michigan Department of Environmental Quality (MDEQ) should not have issued the Back Forty mining permit because Aquila's application was incomplete and inaccurate, did not address planned underground mining activities, and did not establish that its mining plans would protect the environment from serious harm.
Boerner’s challenge to the Back Forty mining permit was combined with a second petition filed by the Menominee Tribe. Like Boerner, the tribe claims that Aquila's permit application was incomplete and did not adequately address potential negative impacts of the proposed Back Forty mine. The tribe also claims that Aquila's inventory of Menominee cultural resources at the mine site is inadequate, and so is its plan for preserving archeological resources that may be discovered unexpectedly during mine operations.
While Judge Pulter evaluates those arguments, he must also deal with three new complaints filed last summer.
In one petition, the Menominee Tribe claims it was unlawful for MDEQ Director Heidi Grether to issue a wetland permit over the objections of her own review team, which found that Aquila's project plan was incomplete and did not adequately protect the public interest in waterways and other natural resources at the mine site.
Similarly, the Coalition to SAVE the Menominee River argues that it was unlawful for the MDEQ to rely on a long list of permit conditions to address fundamental shortcomings in Aquila's permit application. The Coalition also claims that the Menominee River is an interstate waterway, which means that the wetland permit should have been handled by the federal government, not by the state of Michigan. If the Coalition prevails on that claim, the wetland permit would be void and the Aquila would have to start over with the U.S. Environmental Protection Agency and the Army Corps of Engineers.
Like the Menominee Tribe, petitioner Boerner argues that it was wrong for the MDEQ director to issue the wetland permit over the objections of her staff. He also argues that operations at the Back Forty mine would unlawfully pollute the environment and impair his property values and quality of life as a landowner adjacent to the mine site.
Along with its petitions for review at the state level, the Menominee Tribe has gone to federal court to challenge the delegation of the Back Forty wetland permit. The tribe argues that, under the Clean Water Act, only federal agencies can issue the permit for a project on the Menominee River because it is an interstate waterway. [Ed. note: this case was dismissed on procedural grounds in January. The tribe has appealed the dismissal].
Finally, and most recently, the Coalition to SAVE the Menominee River has filed its own lawsuit in federal court. Like the Menominee Tribe, it claims that, under the Clean Water Act, only federal agencies, not the state of Michigan, have the power to issue the Back Forty wetland permit. The Coalition also argues that the EPA was wrong to withdraw its objections to the permit because they were never fully addressed by the mining company. Instead, then EPA allowed the state of Michigan to issue a permit with many conditions to be resolved at a later date.