By Joe Kelly

Courthouse News

GREEN BAY, Wis. (CN) – A federal judge dismissed the Menominee Indian Tribe of Wisconsin’s lawsuit challenging a proposed sulfide mine along a river that forms the border between Wisconsin and Michigan’s Upper Peninsula, finding the Environmental Protection Agency had a right to cede authority over wetlands permits to state agencies.

Wednesday’s ruling from Chief U.S. District Judge William Griesbach in Green Bay also denied the tribe’s motion to amend its original complaint to include claims that the EPA’s withdrawal of oversight violated the Administrative Procedures Act and Clean Water Act, and that the EPA failed to consult the National Historic Preservation Act before permits for the mine were issued by Michigan.

The federally recognized tribe claimed that the EPA and Army Corps of Engineers neglected their responsibility to exercise jurisdictional authority over the Clean Water Act’s Section 404 permits for the Back Forty Mine along the banks of the Menominee River, which straddles Michigan’s border with Wisconsin.

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

In addition to the EPA and Army Corps, Canada-based developer Aquila Resources was also named as a defendant in the case.

The Menominee Tribe argued the river, burial mounds, historical agricultural sites and other cultural sites could be damaged by mining activity.

However, Judge Griesbach’s 19-page ruling states that “the state permitting process under Section 404 gives state officials primary responsibility to review and approve permits and allows the EPA to exercise broad discretion in overseeing the program, which includes the decision to object to the permit and withdraw those objections once it determines the objections have been resolved.”

The opinion notes there is no language in EPA regulations requiring the agency to object or comment on proposed permits.

“In short,” the ruling states, “the EPA’s discretionary decision to object and subsequently withdraw those objections is not reviewable under the [Administrative Procedures Act], as the statute is drawn in such broad terms that there is no clear law to apply and there is no meaningful standard against which to judge the agency’s exercise of discretion.”

As for the alleged violations of the National Historic Preservation Act, Griesbach found that because the mine project is not federally funded or licensed, that law does not apply. This means the EPA did not have to consult with the tribe before the permits were issued.

“To the contrary,” the opinion states, “the record reflects that the project was proposed by and will be funded by Aquila and its investors and the state of Michigan has jurisdiction over the Section 404 permitting process.”

The judge also found that Michigan and its agencies have sovereignty pursuant to an “underlying EPA decision in 1984 that allowed Michigan to assume permitting authority over Section 404 permits related to the Menominee River.”

Aquila applauded the ruling in a statement Wednesday.

“Aquila will continue its efforts with the state of Michigan and local communities to demonstrate our commitment to environmental responsibility and sustainable resource development that benefits all stakeholders,” the developer said. “The Back Forty Mine will be a safe, disciplined operation that promotes and supports local community socio-economic development and is protective of the environment.”

Janette Brimmer of Earthjustice, one of the firms representing the Menominee Tribe, said in an email statement,“Needless to say we are very disappointed and disagree with the ruling.”

“We are discussing next steps with our client and that will be determined in the coming weeks. The Menominee River and the area of the proposed mine is culturally and historically rich and critically important to the Menominee Indian Tribe of Wisconsin, and the river is a national resource and a vehicle of interstate commerce as defined in the law,” Brimmer said.

She added, “We disagree with the decision to allow this permit to move forward as a state of Michigan-issued permit with no required consultation with the tribe under the National Historic Preservation Act.”

The Back Forty Mine, which for now has all the permits required to move forward, would be located in Menominee County, Michigan, near the border with Wisconsin in the mineral-rich Penokean Volcanic Belt.

Representatives from the EPA could not be immediately reached for comment Thursday.