Wisconsin Tribe Sues Over Proposed Mine in Upper Peninsula

The Menominee River. Photo courtesy of Janette Brimmer/ Earthjustice.

GREEN BAY, Wis. (CN) – The Menominee Indian Tribe of Wisconsin claims in a federal lawsuit that the Environmental Protection Agency must take control of the permitting process for a proposed sulfide mine along a river on Michigan’s Upper Peninsula because the river and its wetlands are protected interstate waters.

Represented by Earthjustice and tribe lawyers, the Menominee Tribe brought a complaint in Green Bay, Wisconsin, federal court Monday against the EPA, 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 last year. 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.

“The sulfide ores are reactive, meaning that they will form acids when exposed to water and air resulting in what is commonly referred to as ‘acid mine drainage,’ where there is runoff or leaching from mine surfaces and/or waste rock or tailings,” the complaint states. “The pollutants in this runoff are damaging to fish, vegetation, and water quality generally. Moreover, the sulfates in runoff or wastewater from mining are highly damaging to wild rice.”

The EPA and Army Corps of Engineers have declined to exercise jurisdiction of the permit application, according to the lawsuit, instead saying Michigan has authority over the matter.

But the Menominee Tribe argues that in 1979, the Menominee River was designated an interstate water under federal law and therefore Michigan cannot have jurisdiction over a permit for the mine, which the tribe says will affect the river.

“The Menominee River has been, and continues to be, used for interstate commerce, including the portions of the river at the location of, and downstream from, the proposed Back Forty Mine. Many area businesses rely on the river and use it for fishing boating, recreation, commerce, and industry,” the complaint states.

The tribe wants a federal judge to declare that Section 404 of the Clean Water Act prevents delegation of jurisdiction over the river and its wetlands to Michigan. It also seeks an injunction ordering the EPA and Army Corps of Engineers to exercise federal jurisdiction over the proposed mine.

The Menominee Tribe’s lead attorney, Janette Brimmer with Earthjustice, said Michigan cannot control the mine’s permit because the river and its wetlands are interstate waters.

“Resources don’t belong to just one state, don’t belong to a company—they belong to everybody and with a lot of implications, backwards and forwards in time,” Brimmer said in a phone interview. “For the tribe, backwards in time in terms of their cultural and historic resources but also forward in terms of protecting water quality from what could be a big threat. I think something to learn is time and again, our decision makers kind of rush to judgment and those that have the most access tend to be business interests or people that want to take advantage of the resource. I think slowing down and thinking about this from a public point of view would benefit everyone.”

The EPA declined to comment on the pending litigation. The Army Corps of Engineers did not immediately respond Tuesday to an email request for comment.

The 17-page lawsuit details the tribe’s “existential” connection to the Menominee River and says its protection is of “supreme importance.”

The tribe says it uses the river and surrounding areas for recreation, hunting and fishing and the mine’s pollution will have a negative impact on those daily activities.

“Destruction or damage to any one cultural resource, site, or landscape contributes to destruction of the tribe’s culture, history, and religion. Injury to the Menominee Tribes’ cultural resources causes injury to the tribe and its members,” the lawsuit states.

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