By Joe Kelly

Courthouse News

CHICAGO (CN) – A Seventh Circuit panel ruled Monday that federal law offers no recourse for a Wisconsin tribe challenging a permit which would allow runoff from a Michigan sulfide mine into a river on the border between Wisconsin and Michigan’s Upper Peninsula, leaving the tribe to fight administratively in Michigan.

The Menominee Indian Tribe of Wisconsin first sued the U.S. Environmental Protection Agency and the Army Corps of Engineers in 2018, claiming the federal agencies 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 federally recognized tribe also argued that the river, burial mounds, historical agricultural sites and other cultural sites would be damaged by mining activity. It claimed the EPA’s decision not to exercise its authority over the permitting process for the mine also violated the Administrative Procedures Act.

U.S. District Judge William Griesbach in Green Bay, Wisconsin, originally threw out the suit in December 2018, ruling the permitting process for the mine is up to Michigan to handle and that the EPA’s broad oversight discretion does not require it to object or comment on the proposed permits.

Represented by Earthjustice and tribal lawyers, the tribe appealed to the Seventh Circuit where the parties offered arguments before a three-judge panel this past September in Chicago.

On Monday, the panel issued its ruling, lamenting that the tribe was done a disservice by the federal agencies in the permitting process but ultimately finding it cannot review the agencies’ actions.
The opinion by U.S. Circuit Judge Michael Scudder, a Donald Trump appointee, affirmed Griesbach’s dismissal of the tribe’s suit “despite reservations about how the federal agencies responded to the tribe’s concerns.”

“The Menominee Indian Tribe of Wisconsin’s sincere efforts to protect its cultural heritage ran into a legal labyrinth and regulatory misdirection,” Scudder wrote for the panel. “Had the federal agencies provided a meaningful response to the tribe’s concerns, perhaps this suit could have been avoided. But in light of the regulatory scheme that we cannot change … we cannot review the agency action here.”

Canada-based Aquila Resources applied for a Section 404 permit under the Clean Water Act for the proposed mine in 2017, and even though an environmental assessment showed the mine would negatively affect wetlands and the water table in the area the federal agencies declined to meaningfully revisit a 1984 decision which delegated authority over the Menominee River to the state of Michigan, finding at the time that the river was not used in interstate commerce.

Echoing concerns raised during oral arguments, the panel expressed further surprise at the EPA’s response to the tribe’s letter asking to revisit the 1984 decision, which took the form of “a six-sentence letter not at all addressing its concerns but offering to speak with the tribe by phone.”

“Neither response addressed the tribe’s request for the agencies to reconsider whether changed circumstances warranted the renewed exercise of federal authority over the relevant section of the Menominee River,” Scudder wrote.

Despite the judges’ disapproval of the agencies’ conduct and Scudder stating in the opinion that the tribe “got the runaround” and that it will “understandably find this conclusion unsettling,” the panel said its hands are tied when it comes to granting relief to the tribe.

“In these circumstances, the tribe is left to pursue its challenge in the Michigan administrative system and state courts,” Scudder wrote for the panel.

An administrative law judge has not yet ruled on the tribe’s challenge of the mine in Michigan state court.

Attorney Janette Brimmer of Earthjustice called the decision “obviously very, very disappointing” particularly since “this is a really important issue for the Menominee people.”

Brimmer expressed dismay at the regulatory trap the tribe finds itself in, adding that even though the Seventh Circuit clearly felt the federal agencies had not done right by the tribe “this decision basically kind of says ‘oh well.’”

The EPA’s regional office in Chicago could not be reached late Monday for comment.

U.S. Circuit Judges Diane Sykes and David Hamilton, appointed to the bench by George W. Bush and Bill Clinton, respectively, rounded out the panel.