The Menominee Indian Tribe of Wisconsin on Monday formally challenged plans for a huge mine just over the state line in Michigan’s Upper Peninsula in a case the tribal chairman said has national significance.
A leading national environmental law firm representing the Keshena-based tribe filed a 60-day notice of intent to sue the federal government.
The tribe says it has been deprived of treaty rights that are supposed to protect its cultural and historical sites because the federal government has delegated to the state of Michigan too much authority for permitting mines like the one proposed amid tribal burial mounds along the Menominee River.
“We tell the state of Michigan we want our rights, and the state says ‘We don’t have a treaty with you,’” tribal chairman Gary Besaw said.
Such disputes could become widespread if more states seek the extra authority under the encouragement of Trump administration officials like Environmental Protection Agency administrator Scott Pruitt, Besaw said.
“We know Scott Pruitt with EPA is actually pursuing that mantra of ... delegating to states,” Besaw said. “We want Aquila and the potential investors of Aquila to know that we aren’t going down without a fight.”
The tribe has hired the San Francisco-based Earthjustice to represent it. Earthjustice has represented the Standing Rock Sioux against the Dakota Access Pipeline, sued the EPA over the pace of enforcement of pollution laws in poor areas and gone to court to ban the pesticide chlorpyrifos, which is linked to developmental disorders.
“This puts the federal government on notice,” Besaw said. “If we continue to be ignored we will pursue federal litigation.”
Earthjustice filed the 60-day notice with Pruitt, the EPA Regional office in Chicago, acting secretary of the Army Ryan McCarthy and Army Corps of Engineers officers in Detroit and Washington, D.C. The Army Corps is involved in permitting disturbances of wetlands and waterways, while the EPA administers water and air quality.
An EPA spokeswoman in Washington said the agency will review and respond appropriately. The Army Corps didn’t respond to a request for comment.
The Michigan Department of Environmental Quality has said it invited tribes to participate in the Aquila permitting process. But Besaw has said only under federal law would the Menominee have a formal, enforceable channel to influence decisions.
The tribe’s attempts to have its cultural and historical sites protected haven’t been effective through state offices, he said.
Earthjustice attorney Janette Brimmer said the wetlands along Menominee River that runs by the mine site and forms part of the border between the two states should be regulated by the federal government because it is a commercially navigable interstate waterway.
“The Clean Water Act makes it very clear that the authority to dig up and potentially pollute the Menominee River and its wetlands cannot be delegated down to a single state,” Brimmer said in a statement. “The waters and wetlands that will be affected by this huge, potentially very damaging industrial project do not ‘belong’ only to the State of Michigan. They must be protected for everyone, and it’s the EPA and the Corps’ mandatory duty to assume jurisdiction over the permit application.”