Could Proposed Iron Mine be Swallowed up in Court?

Mar 4, 2013

The Penokee region in far northern Wisconsin stands as a dramatic backdrop for a proposed iron ore operation; as debate follows the mining bill into the state Assembly this week
Credit Susan Bence

This week, Wisconsin’s divisive mining bill will hit the Assembly floor and its likely path to Gov. Walker’s desk.

Advocates celebrate the boost a mine could bring to a beleaguered economy. Critics maintain the environmental damage would outweigh the benefits.

It seems no matter where and when hearings have taken place, someone has uttered the word litigation or lawsuit. We explore the types of legal challenges Wisconsin will likely face, if workers begin digging to reach iron ore near Lake Superior, and depositing “the leftovers” nearby.

Democratic Senator Bob Jauch described the GOP-backed measure as a lawsuit waiting to happen. “The fact of the matter is that the only jobs this bill is going to create, is the attorneys who will take this bill to court as soon as one navigable stream or one navigable pond is filled,” Jauch says.

George Meyer agrees.

“I would add environmental consultants and environmental lawyers will be the most successful in the project in terms of jobs,” Meyer says.

Meyer is an environmental attorney and used to head the Dept. of Natural Resources. Now Meyer serves as executive director of the Wisconsin Wildlife Federation.

Both he and Jauch oppose the mining bill, yet what we wanted to know, is what legal challenges might follow in its wake.

George Meyer says multiple legal avenues exist – but not right away.

“The litigation will take place most likely after decisions are made by the Department of Natural Resources on the state permit and on the Corps of Engineers when that permit is issued,” Meyers says.

Meyer says, if the Army Corps of Engineers allows the project to proceed, he’d expect the Bad River Band of Lake Superior Chippewa to sue the corps. The tribe’s reservation lies downstream from the proposed mine site.

“If the tribe’s water resources, wild rice or other things were adversely affected by the federal decision that’s a basis by which they could challenge and have the permit overturned,” Meyer says.

Meyer says the federal government signed a series of treaties in the 1800s, with promises to protect tribal rights to hunt, fish and forage on vast stretches of territory, in exchange for lands they ceded. “The challenge would be hypothetically that the federal government didn’t follow its standards or procedures and in addition, they had violated their trust responsibility to the tribe by issuing a permit that would reduce the value of the water resources on the Bad River reservation. There’s also the possibility the other Ojibwe tribes could get involved,” Meyer says.

Thus, all the Lake Superior Ojibwe tribes could challenge the Army Corps in court.

In the state arena, Meyer expects challengers to sue the DNR, if it allows tons of earth to be piled in or near wetlands and streams in the region, that feed rivers and ultimately flow into Lake Superior.

“The state constitution requires that the waterways are protected and requires that the state protect the waterways against improper use or destruction,” Meyer says.

The clause is called the public trust doctrine.

While tribes and environmental groups might hire attorneys to press their cases in court, the Wisconsin Department of Justice would represent the DNR. The mining company could lend a hand.

Now, if the tables are turned, and either federal or state regulators deny a permit, the mining company could challenge the decision in court.

No matter who might sue whom, George Meyer expects many months to pass between the moment a company applies for a permit and a definitive outcome.

“ It would be a minimum of six years before you could start doing something and that’s optimistic. I think we’re talking more like eight years if you’re successful in litigation; maybe longer,” Meyer says.

Proponents of the mining bill insist they have designed a framework that streamlines the permitting process without diminishing environmental protections.