June 2014 Newsletter
June 4, 2014
Dear WRPC Member,
Ever since the U.S. Court of Appeals for the 7th Circuit in Chicago found a creative way to let Flambeau Mining Company (FMC) “off the hook” for violations of the Clean Water Act that had been assessed against the company by the U.S. District Court for the Western District of Wisconsin (for ongoing pollution of public waters at the Flambeau Mine site near Ladysmith, Wisconsin), FMC attorneys have been coming after the three plaintiffs in the case, including WRPC, the Center for Biological Diversity (CBD) and Laura Gauger.
How to Prevent Citizen Enforcement of the Clean Water Act
The appellate court handed down its controversial decision in August 2013 and refused our request for a rehearing (which, as explained in our legal brief, was sought to “correct several points of fact that the panel overlooked or misapprehended” and because the decision “conflicts with prior decisions of this Court”). Shortly thereafter, Flambeau Mining Company proceeded to file motions with the court to recover $82,525 in “Clean Water Act fees” and in addition, sought $74,897 in “statutory costs.”
FMC attorneys argued that as the prevailing party they were entitled to seek all costs of litigation and that the plaintiffs’ case was groundless. However,the appellate court never denied the lower court’s finding that FMC had indeed discharged contaminated runoff from the Flambeau Mine site into public waters on an ongoing basis since at least 2006 (statute of limitations).
In February 2014 Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin rejected FMC’s argument. The appellate court’s decision did not mean that our suit was groundless. Rather, the court’s decision was based on a technicality that, in effect, allowed errors made by the Wisconsin DNR in its administration of the Clean Water Act to shield Flambeau Mining Company from prosecution. The most compelling evidence supporting our case was the fact that the stream at the heart of the lawsuit (Stream C) was added to the EPA’s list of “impaired waters” in late 2011 for copper and zinc toxicity linked to the mining operation.
According to Judge Crabb, “Plaintiffs prevailed on summary judgment on their claim that defendant (FMC) could be held responsible for discharging pollutants without a permit because it did not actually hold a Clean Water Act permit. Their claim was not obviously meritless.” Accordingly, Judge Crabb denied FMC’s motion for an award of $82,525 in Clean Water Act fees.
But that was not the end of the matter.
Silencing Clean Water Advocates in Wisconsin: Round Two
On March 25, 2014, the clerk of the Western District of Wisconsin (Judge Crabb’s court) assessed $63,183.83 in “statutory costs” owed to FMC by WRPC, the CBD and Laura Gauger. FMC’s parent company is Rio Tinto, the second largest mining company in the world with assets of $83 billion and 2013 net earnings of $3.7 billion on sales of $54.6 billion. Does anyone believe that one of the wealthiest corporations in the world needs to collect court costs from non-profit environmental groups and individual citizens?
Our attorneys have asked the court to review the Clerk of Court’s assessment of costs owed to FMC because many of the costs sought by FMC are for “unnecessary expenditures” or fall outside the narrow scope of costs allowed by law.
Whatever the outcome of this review, it should be clear that Rio Tinto’s claim about “earning the trust of our host communities” as “vital in creating sustainable shareholder value” is empty corporate rhetoric (statement of Chairman Jan du Plessis, March 2014). Rio Tinto’s pursuit of court costs sends a clear message that Rio Tinto will not be held accountable by anyone for its harmful effects on communities where this company operates.
The significance of the Flambeau Mine extends far beyond Wisconsin
The Flambeau mine case has been cited by both proponents and opponents of the proposed PolyMet project in Minnesota. Laura Gauger, the legal affairs coordinator for WRPC has put together Evidence on the Flambeau Mine for the Minnesota Department of Natural Resources and several federal agencies who are evaluating NorthMet’s Mining Project and Land Exchange Supplemental Draft Environmental Impact Statement. For anyone wishing to read Laura’s comments in their entirety (including documents she references in her comments), please go to the “Poly Met” page of Laura’s website, Flambeau Mine Exposed.
Based on the factual information in Laura’s report, the following question begs to be answered:
If a mine as small as the Flambeau Mine, promoted as a state- of- the art model mine, and designated as successfully reclaimed could cause this much groundwater and surface water pollution, what happens at the much larger mine proposed by PolyMet for Minnesota’s Arrowhead Region?
Gogebic Taconite (GTac) proceeds with mining exploration; Bad River Tribe Calls Upon EPA to stop all mining activity in the Penokee Hills
Bad River Tribal Chairman Mike Wiggins has objected to GTac’s bulk sampling of 2,400 tons of rock in Iron County. He says run-off from the rock sampling in the Penokees could damage the creeks, rivers and wetlands and there is inadequate regulatory oversight. “This isn’t cross your fingers and hope you don’t poison the water,” said Wiggins. “This is something that needs to be monitored, needs to be looked at scientifically and we’ve got to have those things in place.”
In February 2014 a Bad River warden temporarily halted a truck carrying rock samples through the reservation for a safety inspection. Chairman Wiggins asked the U.S. Environmental Protection Agency to step in and stop all mining activity in the Penokee Hills. According to Wiggins, the heavy equipment removing the rock without a construction permit violates state and federal policy.
In March 2014, eight local citizens and tribal members filed a lawsuit against Wisconsin’s DNR over GTac’s rock sampling, alleging that the state should have required an industrial stormwater run-off permit.
DNR mining specialist Ann Coakley said her agency was monitoring the snowmelt run-off closely and hasn’t found any problems at the three rock-sampling pits. However, Milwaukee attorney Dennis Grzezinski says that even if the snowmelt is finished by the time the case is heard, the suit is still relevant because they want to compel the DNR to require stormwater permits for future mining exploration. A court hearing on the case was delayed because a new judge from outside the proposed mining area was appointed to hear the case.
Wisconsin Conservation Congress Votes Show Statewide Support for Mining Safeguards
Polling results from 69 of 72 Counties participating in the annual statewide Conservation Congress Spring hearing showed overwhelming majorities supported resolutions opposing GTac’s proposed taconite mine in the Penokee Hills, for repeal of 2013 Act 1 – the new iron mining law known as the Bad River Watershed Destruction Act, and to direct the DNR to establish stronger air standards for frac sand mining to protect public health.
Especially noteworthy – Ashland and Iron County residents, site of GTac’s proposed massive open pit iron mine – strongly supported both the resolution to oppose the proposed mine and the resolution to repeal the new iron mining law (from Sierra Club and Madison Action for Mining Alternatives press release, April 24, 2014).
Ongoing grassroots organizing against GTac’s proposed iron mine
On May 31 the Bad River Anishinabe Environmental Protection Alliance, with support from Bad River Tribal Programs sponsored the 2014 Bad River Watershed Water Walk from Tyler Forks on Moore Park Road (Mellen) to the Bad River Pow Wow Grounds in Odanah (42.3 miles). This was a spiritual walk to express the desire for clean water and an opportunity to educate the general public on the importance of clean water now and into the future.
The “Defend the Water and Penokees for Future Generations” Flotilla is a family-friendly grassroots canoe and kayak trip down part of the Bad River and Chequamegon beginning June 1st and ending on June 9th. Organizers say it is “intended to connect people to the Bad River Watershed, and rejuvenate interest and passion in protecting its waters, flora and fauna, and all that depend and live on it from the proposed Penokee Mine. More information on this from: firstname.lastname@example.org
GTac President Bill Williams recently told a mining industry group in Duluth that many of those opposed to mining have switched from NIMBY (“not in my backyard’) to BANANAS (“Build absolutely nothing anytime near anyone.”). Perhaps Mr. Williams should sign up for a flotilla trip and learn why this watershed needs to be protected from ecologically destructive mining.
Al Gedicks, Executive Secretary