Ruling won’t end fight against mine
PENNY MULLINS, EH news editor/digital director
December 6, 2019
Eagle Herald
MENOMINEE — Tom Boerner, who owns land in Lake Township directly adjacent to the Back Forty Mine, said Wednesday he doesn’t see the recent decision by a state review panel as changing too much in his and others fight against the gold and silver mine becoming a reality in Menominee County.
Boerner has been involved since the beginning in legal challenges to the permits issued to Aquila Resources Inc. from the Michigan Department of Environmental Quality, now known as the Michigan Department of Environment, Great Lakes, and Energy or EGLE.
Boerner and the Menominee Indian Tribe of Wisconsin were co-plaintiffs in the recent challenge of a decision made in May 2019 by an Administrative Law Judge in the state of Michigan regarding an order in support of the mining permit issued by the DEQ in 2016. The matter went before a three-person Environmental Permit Review Panel, which took testimony at three hearings that stretched over a six-month period in the summer and fall of this year.
In the end, the panel issued a decision Nov. 25 in support of the Administrative Law Judge’s order. Boerner said, at the conclusion of the original contested case hearing, the judge had indicated he would rule in favor of the DEQ’s decision to approve the mining permit, “because the state of Michigan’s experts said this won’t do significant harm to the environment.”
But Boerner said, in hindsight, the judge had not ruled on or considered the 902-page amendment to the mining permit later submitted by Aquila. Boerner said the judge indicated he was ruling “on what was, not on what Aquila wants to do.”
“The whole argument with the panel was don’t issue or don’t recommend that this permit be issued because we’re going to be back here again with the amended Part 632 permit,” Boerner said. “Why don’t you just combine your ruling?”
Because the changes included in the amendment to the original Part 632, or mining permit, were significant, EGLE held another public hearing in January 2019. The decision is still pending.
Boerner said Wednesday that the review panel’s November decision “really means nothing,” since there are other pending challenges, including an appeal of the DEQ/EGLE issuance of the wetlands permit, as well as EGLE review of a 902-page amendment to the original Part 632 application.
“There is nothing that is imminent,” Boerner said of the other pending processes, including EGLE’s issuance of a dam permit, which has not yet happened. “I’m certain we will prevail in this.”
With all the moving parts, Boerner said there are many legal challenges in place as well as others likely to follow.
Boerner, the Menominee Indian Tribe and the Coalition to Save the Menominee River, have combined efforts to challenge the issuance of the Part 303 wetlands permit, a contested case action which also came before an Administrative Law Judge this fall. The hearings concluded recently. Boerner said the plaintiffs have a Dec. 28 deadline to submit legal briefs to the ALJ. Boerner represents himself in the matter, while The Coalition to Save the Menominee River Inc. is represented by environmental attorneys Ted A. Warpinski of Davis & Kuelthau in Green Bay and Bruce Wallace of Hooper Hathaway in Ann Arbor, Michigan.
The ruling from that matter is expected sometime in early 2020.
Boerner is hopeful the ALJ will rule against the DEQ’s issuance of the wetlands permit, based on the testimony given by members of the state agency regarding their Findings of Fact.
“They reiterated, on the stand, to the judge, that this wetlands permit should not have been issued,” Boerner said of the employees of the DEQ/EGLE wetlands division.
While three of the four necessary permits have been approved by EGLE, Boerner said making significant amendments to any one of them has a ripple effect.
“Aquila will be the first to admit that they have to align all the permits,” he said. “We kept telling the judge, ‘we’re going to be back here. We know this, because they have to change their mine site.’ The mine site has changed significantly — where the tailing ponds are, where they use the cyanide — it’s changed.”
He said the Part 632 permit had a different site map than the Part 303 wetlands permit application, even though they were submitted within days of each other. “That’s how these 902 pages of amendments came about, was that they have to amend the Part 632 permit to look like the wetlands permit, because you can’t have two permits with two different site plans.”