EPA – Challenge to Issuance of Permits

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7^th Circuit Court of Appeals

Case Name: Menominee Indian Tribe of Wisconsin v. Environmental Protection Agency, et al.

Case No.: 19-1130

Officials: SYKES, HAMILTON, and SCUDDER, Circuit Judges.

Focus: EPA – Challenge to Issuance of Permits

For the Menominee Indian Tribe, the river that bears its name is a place of special importance. The Menominee River runs along the border between Northern Wisconsin and Michigan’s Upper Peninsula. According to its origin story, the Tribe came into existence along the banks of the River thousands of years ago. This birthplace contains artifacts and sacred sites of historic and cultural importance to the Tribe. All these years later, the Tribe returns to the riverbanks for ceremonies and celebrations.

Sometime before 2017, the Tribe learned that Aquila Resources intended to embark on a mining project known as the Back Forty alongside the Menominee River and in close proximity to Wisconsin’s northeast border. Aquila successfully applied for several necessary permits from the state of Michigan. Concerned the project would disrupt and dislocate aspects of tribal life, the Tribe wrote letters to the Environmental Protection Agency and Army Corps of Engineers asking both agencies to reconsider its 1984 decision to allow Michigan, instead of the federal government, to issue certain permits under the Clean Water Act. The EPA and Army Corps responded not by revisiting the prior delegation of permitting authority but instead by informing the Tribe of what it already knew—that Michigan would decide whether to issue a so-called dredge-and-fill permit to authorize Aquila’s Back Forty project.

The Tribe responded on two fronts—first by commencing an administrative proceeding in Michigan and second by filing suit in federal court in Wisconsin. The district court dismissed the Tribe’s complaint on the ground that it did not challenge any final action taken by the EPA or Army Corps. The court also denied the Tribe’s request to amend its complaint. Despite reservations about how the federal agencies responded to the Tribe’s concerns, we affirm.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.