Lawsuit against mine developers dismissed
PENNY MULLINS, EH news editor/digital director
October 24, 2019
Eagle Herald
GREEN BAY — A federal court has dismissed a lawsuit brought by the Coalition to Save the Menominee River against the developers of the Back Forty Mine in Menominee County, as well as several federal agencies.
According to the decision released Monday by U.S. District Court Chief Judge William C. Griesbach, he has ruled in favor of a motion to dismiss the lawsuit against Aquila Resources Inc., the U.S. Environmental Protection Agency, the acting administrator of the EPA and the U.S. Army Corps of Engineers, filed in the Eastern District of Wisconsin by the Coalition in 2018.
The Coalition challenged the decision made by the Michigan Department of Environmental Quality in 2018 to grant a permit to Aquila, claiming that the Corps should have had jurisdiction in the permit decision because of the location of the Back Forty Mine on the Menominee River. Aquila submitted its original Section 404 application to the MDEQ in November 2015, but withdrew it after the EPA objected. A second application was submitted in January 2017.
Section 404 of the Clean Water Act (CWA) establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. According to the decision and order dated Monday, “Only Michigan and New Jersey have been federally approved to administer Section 404 permit procedures. The EPA approved Michigan’s Section 404 permit program in 1984, after the Corps entered into a Memorandum of Agreement with the State of Michigan …”
An updated Section 404 permit application was submitted in October 2017, and MDEQ public hearings were held in January 2018. On March 8, 2018, the EPA objected to the proposed permit, which triggered a 90-day extension for the objections to be resolved.
The Coalition also claimed that the EPA was required to hold a public hearing after it filed objections to the original permit application by Aquila, even though it had issued the letter in March “noting that it considered its objections resolved by the use of permit conditions that allowed the required information to be submitted after the issuance of the permit.” The Coalition contended that since no public hearing was held by the EPA, Aquila and the MDEQ “were limited to ‘taking the steps’ provided in the original (March 2018) letter to resolve the EPA’s objections.”
According to attorney Ted Warpinski of Davis & Kuelthau, which represents the Coalition, the group also argued that the MDEQ is not the final agency to take action, because parts of the Menominee River were not in their sole jurisdiction.
Griesbach dismissed the case, stating that consistent with another court precedent, “the court concludes that the EPA’s discretionary decision to object to a Section 404 permit and later withdraw those objections is not reviewable under the Administrative Procedure Act (APA).
“Much like the NPDES (National Pollutant Discharge Elimination System) permitting program, the state permitting process under Section 404 permits the EPA to exercise broad discretion in overseeing the permitting program, which includes the decision of whether to object to the permit and withdraw its objections once it decides the objections have been resolved. There is no standard in the statute or the regulations that provides meaningful guidance by which to judge the EPA’s determination that its objections have been satisfied or to judge the EPA’s exercise of discretion. For this reason, the Coalition’s amended complaint fails to state a cognizable claim under the APA,” Griesbach concluded.
Griesbach ruled that the section of the Menominee River, where the mine will be located, is within the portion under the control of the MDEQ.
Tuesday, Aquila responded to the judge’s decision.
“We are pleased with the outcome, and we continue to progress toward construction of the project,” said Chantae Lessard, Aquila’s director of social performance and engagement.
Warpinski said the Coalition will wait to take its next step on this case, since Griesbach’s decision on a similar case filed by the Menominee Indian Tribe of Wisconsin is under review by the 7th Circuit Court of Appeals.
“This was a similar case with a similar decision about a year ago,” Warpinski said. “We will wait until a decision comes to decide if we are going to file an appeal.” The appeals court decision may not be reached for another three to six months, he said.
Warpinski also represents the Coalition in a contested case hearing going on presently in Lansing, Michigan, where the organization is challenging the approval of Aquila’s wetland permit. Testimony was given over two days in June and started again Wednesday, expected to wrap up by Friday.
Warpinski said the administrative law judge’s decision on the contested case in expected by the end of April.
Dale Burie, president of the Coalition to Save the Menominee River, said, “In no way does this federal decision stop the Coalition’s mission to protect the Menominee River and residents on both sides of the river from toxins resulting from metallic sulfide mining and the proposed Back Forty project.
“We’re never backing up nor backing down.”
