MARQUETTE, MICH. (December 12, 2011) – A coalition of groups is appealing a court decision that has allowed a dangerous mine to proceed in Michigan’s Upper Peninsula—despite the threat the mine poses to water quality, the Great Lakes and one of the region’s last spawning grounds for the coaster brook trout. 

 The Huron Mountain Club, Keweenaw Bay Indian Community, National Wildlife Federation and Yellow Dog Watershed Preserve filed the motion with the Michigan Court of Appeals over the weekend. The groups are opposing the mine on the grounds that it poses unacceptable risks to water and air quality—and that it could collapse, endangering workers and the river it is underneath.

 “This mine is the first to be permitted under Michigan’s new mining law, and we must ensure that the law’s protections of human health and the environment are honored and applied,” said Michelle Halley, attorney for the National Wildlife Federation. “So far, they have not been and that is why we are seeking leave to appeal. Many more mines are in the queue and this is a precedent-setting case.”

 The groups are appealing a decision by the Ingham County Circuit Court that allowed international mining company Rio Tinto to start mining activities on Eagle Rock—a site considered sacred to Native Americans.

 “It is very important to the Keweenaw Bay Indian Community to protect Eagle Rock as a sacred place,” said Chris Swartz, President, Keweenaw Bay Indian Community, “and we are hopeful that this appeal will result in the Court of Appeals reversing the decisions of the circuit court.”

 The type of mine being proposed—in which nickel and copper deposits are extracted from sulfide ores—poses severe risks to the environment. One byproduct of so-called “hard rock” or “sulfide ore” mining is sulfuric acid, which has proven deadly to rivers, streams and wildlife in other parts of the country. Rio Tinto, the company overseeing the project, has broken Clean Water Act laws dozens of times in mines they have controlled in other states.

 Now, the Michigan Court of Appeals will decide whether to take the case. There is no date by which the court must make its decision.

 “We will continue to put forth our concentrated efforts to ensure that this area remains unharmed and protected for everyone’s enjoyment, not just for special interests,” said Emily Whittaker, executive director of Yellow Dog Watershed Preserve.

Arguments were made in June 2011 by petitioners and respondents of the appeals case. The decision to uphold the issuance of the permits came with a lengthy document regarding the judge’s opinion. It is attached below.

Upon reviewing the opinion, YDWP staff found the verbage to be less than unbiased. Many arguments that the petitioners made were simply considered null and void because there was a counter argument by the respondents. Additionally, for almost each argument the petitioners made, the opinion statement contained the counterargument, as well as information from cross-examination of only the petitioner’s witnesses.

For those of us who live here and will be left to deal with the actual outcomes, the court’s opinions of the Kirtland’s Warbler as a “handful of birds not nesting in the area” are demeaning. The court also agreed with Kennecott’s biologist that the Yellow Dog Plains contain no critical habitat for the Kirtland’s Warbler. Yet many of the surrounding jack pine forests on the plains are specifically managed for the warbler’s habitat.

YDWP encourages supporters to read the opinion for themselves and to assess whether a fair and impartial trial took place.

Final_Appellate_Decision_11-23-11

According to Orvana Resources, the company entered into mineral leases covering 1,759 acres in an area located in the Upper Peninsula 30 kilometres southwest of the inactive White Pine Mine, which operated between 1953 and 1996.  Based on their calculations, the company targets production start up around 2013.

It is not unlikely to see a cascade of mining applications come to the MDEQ now that Kennecott has begun drilling. Many companies openly admit that they wait for larger companies to test the system, then the smaller ones come in after the most resistance occurs. There are numerous deposits throughout the UP, many within the Yellow Dog, Salmon-Trout, and surrounding watersheds. These deposits are being explored by companies such as Prime Meridian, Kennecott, Aquila, and Hudbay.

Please call the office of the Governor and lodge your complaint:  517 373-3400 or 517 335-7858.
Letters can be sent to:
Governor Jennifer M. Granholm
P.O. Box 30013
Lansing, Michigan 48909
PHONE: (517) 373-3400
PHONE: (517) 335-7858 – Constituent Services
FAX:(517) 335-6863

Each person will have five minutes to address the MDEQ with their concerns.
Below are links to the permit applications:
Air Use Permit: http://www.michigan.gov/documents/deq/5of4_295852_7.pdf
NPDES Permit: http://www.michigan.gov/documents/deq/doc40f4_295708_7.pdf

Comments can also be submitted via email to DEQ-Kennecott-Humboldt-Mill-comments@michigan.gov or by mail to:
DEQ Kennecott Comments
Office of Geological Survey
P.O. Box 30256
Lansing, MI 48909-7756

Below is the actual Order of Remand from Chester

 DEQ_Remand_-_Place_of_Worship[1]

Here are some proposed changes.  

Natural Resources Commission.   The Commission of Natural Resources will be transferred, intact, to the new DNRE but will be renamed the Natural Resources Commission (NRC).  Commission members will continue to serve through the end of their existing terms, and vacancies will continue to be filled by the governor with the advice and consent of the Senate. The NRC will retain existing authority to regulate the taking of game, establish periods of validity for hunting and fishing licenses, and regulate the feeding of deer and elk, without review by or appeal to, the DNRE director. The NRC will also assume functions currently performed by the Citizens Committee for Michigan State Parks and the Water Resources Conservation Advisory Council to further reduce administrative overhead. However, the governor, not the commission, will appoint the department director. 

Trails Advisory Council.  A seven-member Trails Advisory Council will be established under the executive order, and the functions of the existing Snowmobile Advisory Council and Michigan Trailways Advisory Council, which are being abolished under the order, will be given to this council.  The Michigan Trails Advisory Council will focus on the creation, development, operation, and maintenance of snowmobile, equestrian, hiking, skiing, and off-road vehicle trails.  

Environmental Science Board.  The director of the DNRE will be authorized to convene a seven-member Environmental Science Review Board (ESRB) to advise the DNRE on scientific issues affecting the protection and management of Michigan’s environment and natural resources.  The ESRB will be comprised of individuals with expertise in biological sciences, chemistry, ecological science, geology, risk assessment, and other related disciplines.  The Site Review Board process under Part 111 of the NREPA is being eliminated for greater efficiency in environmental proceedings.

Agriculture.  The executive order also impacts the Michigan Department of Agriculture by giving the governor responsibility for appointing the Agriculture director, a responsibility that is currently held by the Agriculture Commission.  The Office of Racing Commissioner will be transferred to the Michigan Gaming Control Board and the Racing Commissioner’s position will be abolished.  The executive director of the control board will assume the commissioner’s duties.  Several boards and commissions within the Department of Agriculture are also being abolished.   

The Governor is appointing Bruce Rasher to serve as transition manager to implement the order and begin building the new department with our help.  Bruce has a degree in fisheries and wildlife management from Michigan State University and worked for many years at Consumers Energy, where he was actively engaged in issues related to brownfield redevelopment, energy efficiency and environmental management.  He served as mayor of the city of Marshall from 1995 to 1998.  

MARQUETTE, MI — Wrongfully putting a private company’s profit margin before the public’s interest is at the heart of a Notice of Appeal filed in the Michigan Court of Appeals today by the National Wildlife Federation and three other local organizations.

Earlier this month, Ingham County Circuit Court Judge Paula Manderfield said her court did not have jurisdiction to determine whether the Michigan Department of Natural Resources erred in its decision to lease 120 acres of State of Michigan lands to Kennecott Eagle Minerals Company for mining facilities. Opponents of a risky metallic sulfide mine proposed by Kennecott believe the lease is illegal.

Eagle Rock, a sacred outcropping visited by Native Americans for generations, is at the heart of the debate. Earlier this week, an administrative law judge recommended to the Michigan Department of Environmental Quality that the mine’s entry portal be moved away from the sacred rock. In his decision, the judge stated that Kennecott and the MDEQ “did not properly address the impact on the sacred rock outcrop known as Eagle Rock.”

Availing themselves of the next step in the judicial process, NWF, Keweenaw Bay Indian Community, Huron Mountain Club, and Yellow Dog Watershed Preserve are pursuing their right to present evidence and be heard on whether denying the public access to public lands, including the rock sacred to local Native American tribes, is a violation of the public trust doctrine.

“The practical implication of the judge’s decision is that we could not present evidence regarding the public trust doctrine. We believe that having a hearing on the merits is the only fair way for this matter to proceed. This ruling eviscerates the public’s ability to implement the doctrine that requires that assets held by the State must be managed for the good of the public,” explained Michelle Halley, attorney for the National Wildlife Federation.

“Our challenge of the DNR lease dovetails with the administrative law judge’s finding that the MDEQ did not properly consider Eagle Rock’s use as a place of worship. The MDNR neglected to do so as well,” said the NWF attorney.

In addition to Eagle Rock, the portion of the Yellow Dog Plains that would be off limits to the public if the mine is allowed has historically been used by local hunters, anglers, hikers, and berry pickers.

“The public trust doctrine takes into consideration the historical use of the area, as well as public access. In this case, the public not only had access to the area for centuries, but actively used the lands for a variety of purposes. Now the State wants to take it away from the public and give it to a private, foreign-owned company for private gain. We deserve the chance to make our case and have it decided on merits. We are confident,” Halley said.