Panel Appears Sympathetic to Tribal Bid to Block Sulfide Mine

CHICAGO (CN) – Seventh Circuit judges pressed the Environmental Protection Agency on Thursday to explain how the Menominee Tribe could navigate the complex intersection of federal and state law to challenge a mine’s application for a permit allowing runoff into a river that forms the border between Wisconsin and Michigan’s Upper Peninsula.

The Menominee River. (Photo via Janette Brimmer/Earthjustice.)

“Suppose a senior government official gets involved in this matter, and sends out a tweet saying, ‘This mine must go forward and the EPA should get out of the way,’” U.S. Circuit Judge David Hamilton suggested to EPA attorney Sommer Engels, in a clear reference to President Donald Trump’s Twitter habit.

“Then the EPA withdraws its objections – you’re asking us to make this scenario beyond judicial review,” Hamilton continued, expressing his concern over the lack of a clear process for review of the tribe’s claim.

Represented by Earthjustice and tribe lawyers, the Menominee Tribe brought a complaint in Wisconsin federal court last year against the EPA, then-Administrator Scott Pruitt, the U.S. Army Corps of Engineers and Army Secretary Mark Esper.

The federally recognized tribe claims the agencies violated the Clean Water Act and Administrative Procedure Act by not exercising federal jurisdiction over the permit application for the proposed Back Forty Mine along the Menominee River.

The river forms the border between Wisconsin and Michigan’s Upper Peninsula. The proposed sulfide mine would be located on the banks of the Menominee River in Menominee County, Michigan.

Canada-based Aquila Resources applied for a Section 404 permit under the Clean Water Act for the mine in 2017. According to the lawsuit, an environmental assessment showed the mine would negatively affect wetlands and the water table in the area. Burial mounds, historic agricultural sites and cultural sites would also face potential permanent damage, the tribe claims.

In 1984, the federal agencies delegated authority over the Menominee River to the state of Michigan, finding that the river was not used in interstate commerce.

But “circumstances have clearly changed,” U.S. Circuit Judge Michael Scudder noted at Thursday morning’s oral arguments.

Thirty-five years later, the tribe says the river is in fact used in interstate commerce, and should be under federal jurisdiction.

However, in response to the tribe’s letter, the EPA and Army Corps of Engineers declined to exercise jurisdiction for the permit application, instead saying Michigan maintains authority over the matter.

A federal judge agreed with the agencies, and dismissed the tribe’s suit last year.

“Is it grandfathered?” Scudder asked Engels. “Is it [the agency’s position that], ‘We thought about it in ’84, and don’t have to think about it again’?”

The EPA and Aquila, separately represented by Ashley Chrysler with Warner Norcross & Judd, argued that the tribe’s letter to the agency, which addressed its jurisdictional claims, did not qualify as a petition under the Administrative Procedures Act.

However, both the agency and the mine company argued that the tribe’s only procedural route to pursue its claims is to file such a petition with the EPA.

Hamilton and Scudder listened to this portion of oral argument with quizzical expressions, and Scudder asked for confirmation: “So the 2017 letter – that’s not construed as a petition?”

However, the judges were also concerned that parallel litigation on the same issue could be pursued in multiple forums at the same time, resulting in a major burden on the courts.

The tribe is currently pursuing litigation challenging the permit in Michigan state court, in addition to its federal complaint in Wisconsin.

“This cooperative federalism is a recipe for a train wreck,” Hamilton told Earthjustice attorney Janette Brimmer.

When Brimmer acknowledged this “complication,” U.S. Circuit Judge Diane Sykes interjected – “It’s not just a ‘complication,’” she said.

Brimmer argued that the “Clean Water Act recognizes that there may be litigation in both” state and federal courts, but emphasized that this case has very special circumstances that do not apply to most permitting challenges.

In rebuttal, Brimmer emphasized that the EPA took a final agency action in this matter – a step necessary to challenge an agency action in federal court – when it withdrew its objections to Aquila’s permit application, allowing Michigan to grant the wetlands permit.

The Seventh Circuit is expected to rule on the matter within the next year.

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