Permits for Controversial Mine Scrutinized at Minnesota High Court

ST. PAUL, Minn. (CN) — A controversial mining project in northern Minnesota had yet another day in court Tuesday morning as the Minnesota Supreme Court heard arguments in a case seeking further review of its permits.

The court heard arguments on the necessity for new contested-case hearings for the NorthMet mining project, a proposed copper and nickel mine in northeast Minnesota’s Iron Range that has pitted clean-water concerns against economic ones across the North Star State.

At issue was a Minnesota Court of Appeals decision from January finding that the state’s Department of Natural Resources, or DNR, did not adequately consider the concerns of property owners downstream of the proposed mine when it issued one of the permits for the mine and two for dams meant to keep waste from entering the watershed. The appeals court ordered a contested-case hearing on those permits, ruling that the DNR’s earlier decision to deny a hearing was unsupported by evidence.

In Tuesday’s livestreamed video-conference hearing, the Minnesota Supreme Court’s justices probed that question with attorneys from the DNR, mining company PolyMet, environmental groups and the Fond du Lac Band of Lake Superior Chippewa, whose reservation lies about 100 lake-studded miles southwest of the proposed mine.

Chief among the issues presented to the five-judge panel – down two from the court’s full roster, with Justices David Lillehaug and Paul Thissen sitting the hearing out – was the degree of discretion former DNR Commissioner Tom Landwehr, who approved the permits, and his successor Sarah Strommen have in approving or denying requests for contested-case hearings.

“The court of appeals eliminated the commissioner’s discretion,” DNR attorney John Katchen said of the decision being appealed to the high court.

Joined by PolyMet lawyer Jay Johnson, Katchen argued throughout the hearing that the department and its experts had been thorough in their review.

“DNR did not need a case hearing to resolve issues where the petitioners misapprehended facts,” he said.

Johnson, noting that the mine has been fighting its way through permitting and the courts for 13 years, agreed and reiterated his client’s oft-repeated position that the legal wrangling was uncalled for.

“Ultimately, this is a scientific decision, not a decision that needs to be resolved in the adversarial process,” he said.

Opponents of the mine, who claimed legal standing through the inclusion of nearby property owners in the case, objected to that idea.

“DNR, in this case, did not take on and say that our experts aren’t relevant, or that they were wrong,” attorney Paula Maccabee of the environmental group Water Legacy said. “What they did say was ‘we prefer our experts.’”

Of particular interest at the hearing was a proposed plan to line a tailings basin, where potentially toxic mining byproducts would be stored, with bentonite. The absorbent clay is often used in waterproofing, and has recently been put to use for lining tailings basins. The DNR cited the addition of bentonite filtering as a boon to the project, but environmental groups characterized it as unproven.

Financial concerns were also raised, with Water Legacy pointing to an amicus brief filed by former Republican Governor Arne Carlson and a trio of business leaders and finance experts alleging that PolyMet simply did not have the capital available to fund the necessary cleanup after its mining work is complete.

“The PolyMet copper-nickel mine would be Minnesota’s first sulfide mine,” Maccabee said. “Across the globe, every sulfide mine has resulted in acid mine drainage.”

“That’s a 100% failure rate,” she added. “Mines have gone bankrupt while their parent companies take the profits and leave cleanup to the taxpayers.”

She also cited the January 2019 collapse of the Córrego do Feijão tailings dam in Brumadinho, Brazil, which killed at least 259 people. That collapse exemplified another dispute in the case: whether evidence arising after the permit was issued, late in 2018, should be considered at all. Katchen and Johnson argued that they shouldn’t, but stressed that their clients were taking those issues into account regardless.

The $1 billion mining project is one of several environmental concerns throwing a wrench in Minnesota’s politics. The Democratic Farmer Labor Party, formed from the 1944 merger of Minnesota’s Democratic Party and the then-powerful Farmer-Labor Party, has seen tensions at the seams of that coalition as northern unions break in favor of mining and pipeline projects opposed by environmentalists. The state’s Republicans, meanwhile, have been vocal proponents of mining, as has President Donald Trump.

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