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Minnesota High Court Scraps Permit for Mine Near Boundary Waters

The Minnesota Supreme Court reinstated two key dam permits for a controversial copper-nickel mining project but sent regulators back to the drawing board on the permit for the mine itself.

ST. PAUL, Minn. (CN) —The Minnesota Supreme Court has dealt a setback to a controversial proposed mining project in the northeastern portion of the state, giving cause for celebration to environmental groups who argue that the mine would threaten the state’s waterways and especially the Boundary Waters. 

The court nixed approval of a permit to mine for the NorthMet copper and nickel mining project on Wednesday, saying that the Minnesota Department of Natural Resources improperly granted the permit because mining company PolyMet did not establish a fixed term for its mine. The use of bentonite clay to seal water and oxygen out of the mine’s tailings basin, the court said, also needs further review. 

Two permits for dams meant to contain a mine-tailings slurry survived, but the mine itself is back to square one. Set to be Minnesota’s first-ever copper-nickel mine, the NorthMet project has drawn heavy criticism from environmental advocates, including several local Native American tribes, since it first got underway in 2006. They worry about its impact on the nearby Boundary Waters Canoe Area Wilderness and other watersheds. Proponents, meanwhile, have argued that the jobs the mine promises -- about 360 directly employed by the company, according to its estimates -- would allow for a resurgence in the flagging mining industry in the region known as the Iron Range. 

Oyster Lake in Minnesota's Boundary Waters Canoe Area Wilderness. (A. Strakey via Flickr)

The Minnesota Court of Appeals ordered contested case hearings on all three permits in January 2020, finding that the DNR had used an “overly narrow interpretation” of state law in denying a contested case hearing to property owners downstream of the mine. 

In an opinion penned by Justice Natalie Hudson, the state high court partially agreed, finding that downstream property owners did have standing to request a contested case hearing but that the DNR had discretion to determine whether a contested case hearing would have aided in making a final decision on PolyMet’s application. 

It also found, however, that the DNR’s permit for the mine needed a definite term in years for its operations. Currently, the court noted, the permit to mine states that the project, including mining and reclamation, would “be completed in approximately the year 2072,” but that maintenance and active water treatment would continue “until such time that continued compliance… has been established and the necessity for postclosure maintenance has ceased.” PolyMet has estimated that post-closure maintenance will be required for at least 200 years. 

Hudson found that this was too ambiguous.

“We do not find the DNR’s indefinite, performance-based term to be a reasonable interpretation of the word ‘term,’ she wrote. “But even if we did, the word ‘term’ is not the type of language that is so technical in nature that we need to rely on the DNR’s expertise to discern its meaning.” 

The court also found that the DNR had failed to address concerns about the mine’s proposed use of bentonite to seal its tailings basin.

“The record is entirely devoid of any evidence to support the DNR’s finding that the pond-bottom bentonite cover will be effective in reducing water infiltration and maintaining a permanent pond,” Hudson wrote. “Given this void, we cannot conclude that substantial evidence supports the DNR’s decision.”

She noted that while the environmental impact statement for the project mentioned bentonite and argued that it was safe, those references “consist of descriptions and objectives of the bentonite amendment and conclusory statements about its effectiveness; there is no analysis of the scientific basis for the DNR’s assumptions.” 

A contested case hearing on the proposed use of bentonite is required to determine that it will satisfy an agency rule regarding the disposal of reactive waste, the ruling states.

The Supreme Court also reinstated the dam safety permits, finding that the Court of Appeals had erred in linking the permits for the dams to the permit for the mine. That is a win for PolyMet, along with a decision that the increased ownership interest of the Swiss multinational mining company Glencore did not justify another contested case hearing. 

Dam permits, however, are not much good without mine permits, and environmental advocates hailed the decision unequivocally as a win.

“Anyone can reapply for a permit, but the bottom line is, today, at 9:59 a.m., PolyMet had a permit to mine, and now they don’t,” Chris Knopf, executive director of Friends of the Boundary Waters, said at a press conference on the steps of the state Capitol building in St. Paul. 

“The permits that were overturned today were hastily rushed through before an election for the previous administration,” Minnesota Center for Environmental Advocacy CEO Kathryn Hoffman said. “Now this proposal is back in the hands of the DNR and Governor [Tim] Walz. They can and they must make better decisions.” 

In a statement, the DNR said it was reviewing the decision and appreciated the court’s direction.

“We appreciate and respect the court’s careful evaluation of issues related to the DNR’s first application of Minnesota’s non-ferrous mining statute and rules,” the agency said, pointing to the several issues the court agreed with it on. “We will carefully review and implement the court’s instructions regarding establishing a fixed term for the permit to mine and granting a contested case hearing on whether bentonite is a practicable and workable technology to reduce oxygen infiltration into the project tailings.”

PolyMet did not respond to a request for comment early Wednesday afternoon.

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