Fight Over Proposed Mine by Menominee River has Brought Together Unlikely Allies

Recent court decision is a setback for the planned Black Forty mine, but it is not the end of the project.

The Menominee River, named after the Menominee Indians of Wisconsin, is the largest river system in Michigan’s Upper Peninsula. It forms the border between northeast Wisconsin and the Upper Peninsula of Michigan and is currently the focus of a struggle over a proposed metallic sulfide mine known as the Back Forty Project.

A Canadian exploration company with no mining experience wants to create a large open pit a mere 150 feet from the Menominee riverbank. The footprint of the proposed mine and tailings dam encompasses 1,087 acres – or 1,435 football fields. Photo by Bob Wick, BLM.

The river drains into Lake Michigan’s Green Bay, just above the city named for it. The twin cities of Menominee, Michigan and Marinette, Wisconsin both draw their drinking water from the river. Aquila Resources, a Canadian exploration company with no mining experience wants to create a large open pit a mere 150 feet from the riverbank to extract gold, zinc, and other minerals from a nearby underground sulfide deposit discovered in 2001.

The area around the site of the proposed mine is a rural-urban mix. Local residents voted overwhelmingly for Donald Trump in 2016. However, a common reverence for the health of the river has brought together unlikely allies, such as Guy Reiter (also known as Anahkwet), a community organizer from the Menominee Indian Tribe of Wisconsin, and professional musicians Dale and Lea Jane Burie.

Dale is a music promoter. His wife, Lea Jane, sang backup for performers including Elvis Presley, Dolly Parton and Merle Haggard. Guy Reiter is the Executive Director of Menikanaehkem, pronounced men-ee-KAHN-ah-kem, (translated as “community builders”), a grassroots community organization based on the Menominee reservation. Menikanaehkem supports sustainable development projects on the reservation and mobilizes opposition to the mine among the public, political leaders and environmental groups

Dale, born and raised in Michigan, used to work in the music industry in Nashville, Tennessee. When he retired, he returned to Michigan and built a home 228 feet from the Menominee River. He was not previously involved in environmental issues and up until recently he considered himself a Republican. That was before he learned about Aquila’s so-called Back Forty Mine. The name “Back Forty Mine” is highly misleading; rather than the 40 acres suggested by the name, the company’s mining permit application shows that the footprint of the proposed mine and tailings dam encompasses 1,087 acres – or 1,435 football fields. The pit would be 2,000 feet wide, 2,500 feet long and 750 feet deep (the equivalent of a 57 story skyscraper).

The pollution threat to the Menominee River deeply offended the Buries’ religious convictions about taking care of God’s creation. “In all my years in the music industry,” said Dale, “I’ve never had the opportunity to cross paths with Native American tribes. And what I found out is that they have a deep passion for everything in this world and I admire that culture. I really admire Guy and what he does to protect the water.”

In 2017 the Buries borrowed $2,000 and invited every group, including Native American tribes, that was concerned with the proposed mine to join the Coalition to SAVE the Menominee River, Inc. Dale is the president of the coalition, which is entirely volunteer-run. The group has organized parades, bridge walks over the Menominee River between Menominee and Marinette, public testimony, countless letters to the editor, and legal challenges to permits for the mine. An important part of the coalition’s educational outreach and organizing has involved an alliance with the Menominee Nation. The coalition also hired an attorney and agreed to coordinate its opposition efforts with the Menominee Indian Tribe of Wisconsin. This was the beginning of the water protector alliance.

Mining on Sacred Lands?

The location of the proposed Back Forty mine project has special significance for the Menominee Nation. The Menominee’s creation story starts where the Menominee River empties into Lake Michigan. Their people occupied the Menominee River area until the colonial government forced them to cede their original territory in Michigan via a treaty in 1836. However, the Menominee Nation never gave up its right to protect its traditional cultural resources, including ancient garden beds, village sites and burial grounds that are essential to their identity. The present-day Menominee reservation is 60 miles southwest of the proposed mine.

Reiter’s commitment to protect the river is based upon a long historical tradition. “The Menominee Indian Tribe is the longest living inhabitant of Wisconsin and of this area they call Upper Michigan. We’ve been here a lot longer than any other tribe. Our oral history goes back thousands and thousands of years. It goes back to the mouth of the Menominee River. This beautiful river is the center of our universe as Menominee people. We are the river, it’s in our DNA. We know its secrets and it knows ours. Our connection runs very, very deep.”

When the threat to the river became clear, the very first thing the Menominee people wanted to do was reconnect with that river. ”We wanted to let that river understand what we were willing to do to protect it,” said Reiter. “We organized a water walk from our reservation right up to that mine site.”

In early 2018, the Menominee Nation filed a lawsuit in Michigan seeking to halt the project on its ancestral lands. Among other things, the suit argued that permitting for the mine should be in federal hands, not in Michigan’s.

Later that year, the Coalition to SAVE the Menominee River filed a separate suit against the US Environmental Protection Agency (EPA) and Army Corps of Engineers claiming that the agencies wrongly approved a wetlands permit for the proposed mine. The agencies had initially rescinded approval of the permit but then reversed their decision and gave Michigan’s Department of Environmental Quality (now the Department of Environment, Great Lakes, and Energy or EGLE) permission to grant it.

In June 2019, Menominee Tribal Chairman Douglas Cox testified before EGLE about the impact of the proposed mine and tailings dam. “This Back Forty Mine Project will desecrate an area of sacred and cultural significance to our Menominee people as well as an important historical landscape to this country. In addition, this is being done in contravention of laws, policies and practices governing meaningful consultation with tribes and protection and preservation of our cultural, sacred and burial sites of our nation. There is no possible mitigation for destroying Menominee cultural resources. Even if Aquila and the state of Michigan were to have the best intentions, there are no actions or steps that can make this place whole again or restore it once lost.”

In January 2020, the Menominee Tribe passed a resolution recognizing the inherent rights of the Menominee River to naturally exist and flourish, including the right to abundant, pure, clean, unpolluted water. Shortly afterwards a federal appeals court refused to review the EPA and Army Corps’ decision to let Michigan be the permitting authority for the proposed mine.

No “Social License to Operate a Mine”

The first priority of this water protector alliance was to involve the downstream communities that were left out of the permitting decision-making process. Despite the fact that the Menominee River is an interstate waterway, the state of Michigan has assumed permitting authority because the proposed mine site is located near Stephenson, Michigan. The Wisconsin Department of Natural Resources, under former Governor Scott Walker, allowed Michigan to assume exclusive jurisdiction over the permitting process.

The alliance reached out to northeastern Wisconsin communities downstream from the proposed mine that would be affected from any pollution discharged into the Menominee River as it made its way to Lake Michigan. The proposed mine would produce 70 million tons of acid-producing waste rock and milled tailings according to Aquila’s mining permit application. When sulfide minerals in mines and mining wastes are exposed to air and water, the chemical reaction produces sulfuric acid and metal pollution known as acid mine drainage (AMD). AMD is toxic to fish and wildlife due to dissolved metals and contaminants such as mercury, lead and arsenic. In April 2020, American Rivers, a national conservation group, named the Menominee River one of the 10 most endangered rivers in America, citing the threat from the Back Forty project.

The Coalition to SAVE the Menominee River, Inc. has organized parades, bridge walks over the Menominee River between Menominee and Marinette, public testimony, countless letters to the editor, and legal challenges to permits for the proposed mine. Photo courtesy of the Coalition to SAVE the Menominee River, Inc.

Seven counties in Wisconsin, plus Menominee County, Michigan, passed resolutions opposing the mine. Every county from the proposed mine site downstream to Green Bay, Wisconsin made it clear that this project did not have a “social license to operate.” A social license is intangible and unwritten and cannot be granted by EGLE or any other state agency or legal authority. However, the international mining industry understands that community support is as important, if not more so, than a regulatory license. Losing social support is in fact seen as the number one risk facing mining companies according to a recent survey by Ernst & Young consultants .

Prioritizing Politics over Science

Michigan regulatory officials repeatedly told opponents of the Back Forty project that their “opinions” about potential harm to the river cannot be considered in mine permit decision-making. Only “scientific” information could be considered. If the mining company met the regulatory criteria, we were told, the permits must be approved.

Now a recent decision from a Michigan judge has overturned a previously issued wetlands permit and exposed the lie behind this bureaucratic nonsense.

The wetlands permit is one of several permits necessary before any mine construction can go ahead. This past January, in a stunning rebuke to EGLE’s leadership, Judge Daniel Pulter ruled that Aquila’s permit application failed to disclose the extent of wetland impacts and revoked the wetlands permit. The scientific testimony in the contested case revealed a consistent pattern of Aquila’s manipulation of scientific research to conceal significant negative impacts to wetlands from the proposed mine. According to Kathleen Heideman of the Mining Action Group of the Upper Peninsula Environmental Coalition, former DEQ director Heidi Grether’s approval of the permit was “a political act, directly contradicting the recommendation of DEQ’s own Water Resources Division.”

“The permit is the most inept, shoddy heap of paperwork I’ve ever seen. When the permit is held up to the light of legal scrutiny, light will shine in through a thousand holes.” Heidman says.

Judge Pulter’s decision is a significant victory for the Menominee Tribe and the Coalition to SAVE the Menominee River. “The Judge’s decision confirms the Menominee Tribe’s concerns about the threats of the Back Forty Mine project to the water, human health, downstream communities, the environment, and our Menominee cultural sites,” said Joan Delabreau, the tribe’s chairwoman. “This is a win for the Menominee River, the people of Wisconsin and Michigan, and Menominee Tribe, and we will not stop fighting until these waters, lands, and sacred sites are protected for good.”

While Aquila says the proposed mine will not encroach on sacred sites, the judge’s ruling established that the Back Forty project would have a “probable negative effect” on the sacred sites and cultural resources of the Menominee Nation.

While the permit reversal, which Aquila plans to appeal, is a major setback to the company, it is not the end of the project.

The Threat from Tailings Dam Failure

The most controversial permit for the project that has yet to be decided is the tailings dam safety permit. Tailings are the finely ground muddy or sandy mine wastes left behind after the valuable metals and minerals have been extracted from the ore. The Back Forty mine would produce millions of tons of tailings that would be stored in a dam that would be higher than a 10-story building and cover 124 acres. The tailings would contain substances that can harm human health, drinking water supplies, and could potentially destroy entire communities and livelihoods. According to the United Nations Environment Program, tailings dams remain “the largest environmental disaster threat related to mining.”

Dale Burie has recently sent a letter to the dam safety unit of EGLE asking it to prohibit the upstream dam design that was implicated with the tailings dam collapse in Brumadinho Brazil that killed 270 people in January 2019. After the disaster, Brazil not only banned the upstream design, it mandated that existing mine tailings dams of that design be decommissioned. Because of the demonstrated risk associated with upstream dam construction, an international group of 142 scientists representing 24 nations urged that upstream dams must not be built at any new facilities.

“In light of the well-documented threat of upstream dam failure in areas of heavy rainfall, we are asking EGLE to exercise your authority to prohibit the upstream dam design for the proposed Back Forty tailings dam,” said Burie. “If EGLE fails to prohibit a dam design that has already been banned in several countries as an inherently risky technology, the communities downstream from the Back Forty tailings dam can only interpret this decision as placing Aquila’s corporate profits over public health, safety and clean drinking water.”

Guy Reiter expressed a similar concern. “Aquila Resources and EGLE view the river as an expendable resource. I think they see it through the lens of capitalism. We see it as the lifeblood of the Earth. As long as this Earth is here, as long as we’re here, we’ll never give up.”

Postscript

On April 22, 2021 circuit court judge Wanda Stokes ruled that the Menominee Indian Tribe of Wisconsin should be allowed to enter new evidence from the wetland case that wasn’t available during hearings on the mining permit that were held in 2018. That case upheld Aquila’s mining permit in May 2019. However, the new evidence in a reopened case may not uphold Aquila’s mining permit.

To send a letter urging EGLE to deny the dam safety permit, go to the coalition’s webpage: www.jointherivercoalition.org

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