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Menominee tribe loses appeal over Back Forty mine permit

By Michaela Paukner
[email protected]

Despite acknowledging that federal agencies had given the Menominee Tribe of Wisconsin a “runaround”, a federal appeals court ruled against the tribe this week in a lawsuit over a permit for the Back Forty mine in Michigan’s Upper Peninsula.

Aquila Resources would operate the open-pit ore mine on 83 acres by the Menominee River near Michigan’s border with Wisconsin. The river and the land around it are a sacred site and burial ground for the tribe.

After learning about Aquila’s plans, the tribe wrote letters to the Environmental Protection Agency and Army Corps of Engineers asking both agencies to reconsider a decision from 1984 allowing the state, rather than the federal government, to issue certain permits under the Clean Water Act.

The tribe said circumstances had changed in the last 35 years because of increased commercial activity on the Menominee River. Before the state issued a permit for the mine project, tribal officials wanted Aquila to consult the EPA and Army Corps. By getting those federal agencies involved, the tribe was hoping to gain greater influence over the final decision.

The EPA and Army Corps responded by telling the tribe that it would be the state that would be ultimately deciding whether or not to issue a dredge-and-fill permit authorizing the Back Forty project. The agencies did not discuss the tribe’s concerns or its request to revisit the decision from 1984.

Aquila then went on, in June 2018, to obtain a dredge-and-fill permit from the state of Michigan. The tribe responded with two court proceedings challenging the permit — one at the state level and one at the federal. A federal court dismissed the tribe’s complaint in December 2018, saying that because the tribe hadn’t challenged any final action taken by the EPA or Army Corps, the courts couldn’t review the complaint.

The tribe appealed the court’s decision to the Seventh U.S. Circuit Court of Appeals in January 2019. In a ruling released on Monday, the appellate court agreed with the decision to dismiss the complaint, “despite reservations about how the federal agencies responded to the Tribe’s concerns.”

The judges said it was troubling that the EPA and Army Corps hadn’t told the tribe how it could legally ask for a review of the decision right away. Instead, the tribe learned of the proper procedure during oral arguments for the lawsuit.

“Although we see nothing standing in the way of the Tribe’s ability to file a §553(e) petition at this point, it may be too late for any rulemaking to affect the dredge-and-fill permit issue in this case,” wrote Judge Michael Scudder, Seventh U.S. Circuit Court of Appeals. “This further adds to our sense that the Tribe got the runaround here.”

The tribe can now pursue its challenge to the Back Forty permit in Michigan court.

“The Menominee Indian Tribe of Wisconsin’s sincere efforts to protect its cultural heritage ran into a legal labyrinth and regulatory misdirection,” Scudder wrote. “Had the federal agencies provided a meaningful response to the Tribe’s concerns, perhaps this suit could have been avoided.”

About Michaela Paukner, [email protected]

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at [email protected]

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