Menominee Indian Tribe News

P.O. Box 910, Keshena, WI 54135-0910


Melissa Cook, Intergovernmental Affairs Manager 715-799-5114

Menominee Tribe Disappointed but not Deterred

(Menominee Indian Reservation, WI) On January 27, 2020, the Seventh Circuit U.S. Court of Appeals issued a ruling in a case filed by the Menominee Tribe of Wisconsin against the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency finding that the Tribe had been given the “runaround” by the federal agencies but that the Tribe ultimately had no recourse in federal court. The Tribe had sued the federal agencies charging that the agencies have failed to take primary responsibility for a wetland permit that is key to the future of the controversial Back Forty Mine proposal.

The permit would allow mine developers Aquila Resources, Inc., to fill and excavate Menominee River wetlands, as part of its plans to construct a large, open-pit mine and industrial minerals-processing facility on a site that borders the Menominee River.

The site is located within a Menominee cultural landscape that includes tribal burial grounds, ancient agricultural sites and ceremonial sites of significance to the Menominee Tribe, some of which have already been deemed eligible for listing on the National Register of Historic Places.

The Tribe made its objections clear at every step of the permitting process for the Back Forty project, repeatedly raising its opposition to the federal agencies’ decision to allow the State of Michigan to oversee the Clean Water Act federal permitting process, pointing out that permitting fill and excavation on the Menominee River and its wetlands cannot be delegated to a state under the Clean Water Act.

The appeal from a decision of the U.S. District Court for the Eastern District of Wisconsin dismissing the Tribe’s case, asked the Court to require the federal agencies to assume primary control over the wetland permit and permitting process from the State of Michigan and to require consultation with the Tribe under the National Historic Preservation Act regardless of which government entity issues the permit.

The Seventh Circuit ultimately held that the federal agencies had not adequately responded to the Tribe, giving the Tribe the “runaround” but also held that the Court could not grant the relief the Tribe sought; that the Tribe would be required to pursue objections to the permit in Michigan State court processes or to file a formal rulemaking petition with the federal agencies to change their position. The Seventh Circuit further found that the National Historic Preservation Act requirements to consult with the Tribe would not apply in that state process. The Court did not rule on the merits of the case of whether wetland permitting on the Menominee River is allowed to be delegated to a state.

“This permit affects so many people, interests and the environment, especially sites critical to the Tribe’s culture and history,” said Chairman Douglas Cox, Menominee Tribe of Wisconsin. “Due to the vast negative impact this permit will have, it is important that the process follow the intentions of the Clean Water Act and not be controlled only by the State of Michigan. The Tribe’s interests are not fully protected by pursuing a futile petition to the agencies or by being forced into a state process where federal laws, meant to protect the Tribe, will not be applied.”

The proposed site borders the Menominee River, and the wetlands permit is of great concern because, under the current proposal, the mine pit would span 84 acres and be 750 feet deep, reaching far beneath the river's natural waterline. According to the mine developer's own statements in the environmental assessment, it has the potential to negatively affect hydrology throughout the area for years. The mine could affect water quality many miles downstream, as well as destroying wetlands, forestland and the Tribe's traditional cultural and historic sites located there.

The State of Michigan continues to act on the wetlands permit over the Tribe's objections. The Tribe is engaged in the state contested hearing with briefing to conclude this week.

The Menominee Tribe will continue to oppose Michigan's permit process.

2020-2 MITW press release 7th Circuit decision final.pdf

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