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Navigating Tribal Opposition to Permits for Great Lakes Mining Projects: Obstacles and Opportunities

Dennis J Donohue and Daniel Peter Ettinger


  • Addresses mining and beneficiation of metals of the Great Lakes.
  • Examines the challenges involved in navigating tribal opposition to environmental permits for new mining projects in the Great Lakes.
  • Discusses how uncertainties and delays in the permitting process will occur when no federal approvals are needed and the role of tribes in the permitting process is less defined.
Navigating Tribal Opposition to Permits for Great Lakes Mining Projects: Obstacles and Opportunities
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Mining and beneficiation of metals was an early driver in the economic development of the Great Lakes region. The mining of both iron and other minerals came to the Upper Peninsula of Michigan in the early 1840s, spurred by Douglass Houghton’s publication of a report on the famed native copper deposits of the Keweenaw in 1841, followed closely by the discovery of iron ore deposits in Marquette County in 1844. The state mascot of Wisconsin—the badger—is a reference to the hillside dwellings of lead miners who worked in the southwestern portion of the state in the early 1800s, well before iron mining began in the Wisconsin portion of the Penokee/Gogebic Iron Range in 1885. Iron mining in Minnesota began in 1884, with development of the Vermilion Range. Iron mining continues in Michigan and Minnesota to this day. Recently, the mining of nickel, copper, and other noniron metallic minerals is undergoing a resurgence in the region. There are several new projects currently in development, and one in production.

Permitting these projects is a complex undertaking given the myriad federal and state environmental reviews and permits that apply. In addition, socioeconomic changes in historic mining districts have led to recreation and tourism playing a much greater role in these areas, broadening the pool of highly engaged stakeholders scrutinizing these projects. Perhaps most importantly, however, is the role that federally recognized tribes are now actively playing in the review and permitting of new mines. A number of these tribes have “treatment as state” status under federal air and water pollution control laws. Most of the tribes in the region also have treaty rights.

This article examines the challenges involved in navigating tribal opposition to environmental permits for new mining projects in the Great Lakes, particularly when no federal approvals are needed and the role of tribes in the permitting process is less defined. This situation can lead to legal uncertainties and potential lengthy delays in the permitting processes unless mining companies take proactive steps early in project development to make good faith efforts to address the concerns of tribes.

Current Mining Projects in the Great Lakes

There are several new mining projects currently in development in the upper Great Lakes region and one recently permitted project currently in production. These projects are all nonferrous projects—i.e., nickel, copper, zinc, and other deposits that tend to be located in ore bodies with sulfur compounds in the host rock. These are known as “sulfide” ore bodies. This type of rock, if left exposed to both air and water over time, can generate an acidic, metal-containing runoff known as acid rock drainage (ARD). In past decades, prior to the advent of modern mining techniques and rigorous environmental regulation, ARD led to environmental degradation at certain mines, particularly in the western United States. These legacy impacts have resulted in a high degree of public scrutiny and controversy surrounding development of these projects. This article focuses on three of those projects in the Great Lakes as good examples of the intensive level of tribal engagement that is becoming common.

The NorthMet Project

The NorthMet Project will be a copper-nickel mine in the Mesabi Range, a well-established mining district in northeastern Minnesota. The project will entail the refurbishment and reuse of an existing mill and tailings facility. The project will have a large, positive impact on the local community, creating more than 5,000 construction jobs, and, once operational, the mine will create approximately 1,300 mining jobs. In 2018, the State of Minnesota, after over a decade of intensive environmental reviews, issued a mining permit, an air pollution control permit, an NPDES permit, and a dam safety permit for the project. Because of wetland impacts and because the project required the exchange of U.S. Forest Service (USFS) lands with the mining company, the U.S. Army Corps of Engineers (Corps) and USFS also reviewed the project, issuing a Clean Water Act section 404 Wetlands permit and approval of the land exchange in 2019.

This federal/state permitting process entailed a joint environmental review under the Natural Environmental Policy Act (NEPA) and Minnesota Environmental Policy Act (MEPA). Three federally recognized Ojibwa tribes served as consulting parties in the environmental review: the Fond Du Lac Band of Lake Superior Chippewa, the Bois Fort Band of Chippewa, and the Grand Portage Band of Chippewa. Because of their cultural ties to the area, these bands were also the focus of the federal and state governments’ consultation efforts under section 106 of the National Historic Preservation Act (NHPA). A multiyear consulting process resulted in the execution of a section 106 Memorandum of Agreement (MOA) between the Corps, USFS, the State Historic Preservation Officer (SHPO), and the Advisory Council on Historic Places (ACHP) in 2016. The MOA, among other things, resolved potential adverse effects to a sugarbush site in the project that had been used in the past by tribal members for sugaring. These extensive environmental review and consultation efforts ultimately did not, however, mitigate tribal opposition to the project. The Fond Du Lac Band (along with several NGOs) has filed several challenges to various permits issued for the project in state and federal court. This litigation is ongoing.

Eagle Mine/Humboldt Mill

The Eagle Mine and associated Humboldt Mill are located within the Marquette Iron Range area in Marquette County, Michigan. Eagle is a new underground nickel mine originally constructed by the Kennecott Eagle Minerals Company in the Yellow Dog Plains, about 18 miles from Lake Superior and several hundred feet below the headwaters of the Salmon Trout River, in a bedrock formation with no hydrogeological connection with the river. It is now known as the Lundin Eagle Mine. The Humboldt Mill, about 18 miles south of the mine site, is located on a former iron mining site. State permits and authorizations needed to build and operate the mine and mill sites were issued in 2012, after intensive litigation challenging certain permits needed for the mine. The mine went into production in 2014.

The Keweenaw Bay Indian Community (KBIC) vigorously opposed the mine, joining NGOs in challenging the state mining permit and groundwater discharge permit issued for operations at the mine site by the State of Michigan. The state groundwater discharge permit regulated mine dewatering water discharging through a system of perforated pipes originally designed to discharge to sandy soils underground. This underground subsurface distribution system subjected the project to regulation under the Federal Safe Drinking Water Act Underground Injection Well Control program (UIC). Although these types of “wells” are typically permitted by rule under the UIC regulations, U.S. Environmental Protection Agency (EPA), due to the controversial nature of the project, exercised its discretion allowed under the UIC regulations to require an individual UIC permit for the discharge. Although the UIC permitting process was subject to a categorical exemption under NEPA, NHPA still applied. The mine ultimately redesigned the discharge as an above-ground discharge, avoiding the need for a UIC permit (and, consequently, NHPA consultation with tribes in the region by EPA). However, Kennecott (owned by Rio Tinto) voluntarily undertook an extensive NHPA-like consultation process of its own to support its permitting effort. The primary focus of this effort was to evaluate the cultural use and significance of Eagle Rock, an outcrop in the middle of the mine site and the eventual location of the portal to the underground mine workings. KBIC asserted that Eagle Rock was a place of worship and the site of historic gatherings and ceremonies. As explained further below, these voluntary efforts did not prevent litigation seeking to belatedly “re-federalize” the permit process for the mine and subject the process to NEPA and NHPA reviews, although this effort was not led by KBIC.

Back Forty Project

The Back Forty Project, owned by Aquila Resources, is a proposed zinc and gold mine located in the Western Upper Peninsula of Michigan along the Menominee River, which serves as the border between Michigan and Wisconsin. The State of Michigan has issued mining, wetland, air, and NPDES discharge permits for the project between 2016 and 2018. The Menominee Tribe of Wisconsin has filed challenges to the mining and wetland permits, which are ongoing. Like the Eagle project, the Back Forty Project does not require any federal permits or approvals. However, the Menominee have led efforts in federal court to compel federal wetland permitting for the project, with the attending NEPA and NHPA reviews. The Menominee Tribe’s concerns stem from the importance of the Menominee River to the Tribe’s origin story and the presence of burial mounds and historic garden beds near the mine site. As discussed below, the Menominee Tribe’s efforts to compel federal permitting for the project have thus far been unsuccessful.

Novel Theories of Federal Jurisdiction

Although each of these cases underscores the depths of the concerns of many tribes in the region when it comes to mining projects, the two Michigan projects—Eagle Mine and the Back Forty Project—underscore the lengths to which stakeholders opposing these projects will go to ensure that tribal concerns are vetted when the more defined tribal role in the permitting process afforded by federal laws is not in play. Both cases involved interesting theories in support of the “federalization” of projects governed by state law. Both cases also provide valuable guidance for companies in how to navigate the uncertainties associated with addressing tribal concerns outside of the NEPA/NHPA context.

In May 2012, after Eagle Mine had completed construction of most of its surface facilities and a substantial portion of the decline from the mine portal to the ore body, the Huron Mountain Club (the Club), which owned property in the general vicinity of the mine and vigorously opposed the project, filed a lawsuit in the U.S. District Court for the Western District of Michigan. It claimed that the mine would affect the traditionally navigable waters of the Salmon Trout River, and that the EPA and Corps violated the Clean Water Act (CWA) and the Rivers and Harbors Appropriations Act (RHA) by failing to require Eagle Mine to obtain CWA section 404 and RHA section 10 permits, which the Club claimed were necessary for the mine to operate. The Club sought a preliminary injunction to require the Corps to assert permitting jurisdiction over the project and undertake review under NEPA and NHPA because the CWA and RHA permits would be considered major federal actions.

In its July 2012 decision, the court denied the Club’s preliminary injunction motion, holding that the Club was not likely to succeed on its claims because the Corps is not authorized or required to order the filing of a permit application when a private party engages in work subject to section 404 of the CWA or section 10 of the RHA. Huron Mountain Club v. U.S. Army Corps of Eng’rs, No. 2:12-CV-197, 2012 WL 3060146, at *5 (W.D. Mich. July 25, 2012). The court stated: “Under both RHA § 10 and CWA § 404, Congress placed the burden of applying for a permit on the project proponent, who proceeds without a permit at his own risk. Congress has not placed any obligation on the agency to initiate the permit process. Although the Corps is required to process permit applications, this duty arises only when a permit application is filed.” Id. The court said that because Eagle Mine did not file permit applications, the Corps had no obligation to act and its failure to act “does not constitute final agency action subject to judicial review.” Id. at *6. The court distinguished between the Corps’ permitting obligations, which are triggered by a permit application, and its enforcement activity, which is discretionary. Id. at *6–7. Finally, the court held that because the Club’s NEPA and NHPA claims were derivative of its claims under the CWA and RHA, the Club was unlikely to succeed on those claims as well. Id. at *12. The Sixth Circuit affirmed the district court’s decision on appeal. Huron Mountain Club v. U.S. Army Corps of Eng’rs, 545 Fed. App’x 390 (6th Cir. 2013). Although the court disposed of the Club’s claims based on legal principles governing the exercise of federal authority, its decision likely was influenced by the fact that characterizing the swampy headwaters of the Salmon Trout as a traditionally navigable water was dubious at best, especially considering that the Corps had determined years before that only the mouth of the Salmon Trout (which connected with Lake Superior on Club property many miles downstream of the mine site) qualified as traditionally navigable and subject to RHA jurisdiction, with no comment from the Club.

In January 2018, the Menominee Indian Tribe of Wisconsin filed a lawsuit in the U.S. District Court for the Eastern District of Wisconsin against the EPA and Corps under the CWA’s citizen suit provision and the Administrative Procedures Act (APA), claiming that the agencies failed to assume federal jurisdiction over the wetland permit for the Back Forty Project that the State of Michigan was administering under its assumed program. During the pendency of the lawsuit, Michigan granted Aquila Resources a wetland permit for the Back Forty Project, which led the Menominee Tribe to seek to amend its complaint to add claims that the EPA’s decision to withdraw its objections to the assumed CWA section 404 permit was arbitrary and capricious under the APA, and that the federal agencies violated section 106 of the NHPA by failing to consult with the Menominee Tribe.

In December 2018, the court dismissed the Menominee Tribe’s lawsuit. Menominee Indian Tribe of Wis. v. EPA, 360 F. Supp. 2d 847 (E.D. Wis. 2018). The court held that the CWA’s citizen suit provision does not waive sovereign immunity with respect to the Corps and that the claim failed to identify a nondiscretionary duty that the federal defendants did not perform, as the federal defendants have no duty to administer the section 404 permitting program. Id. at 857–59. The court also rejected the Tribe’s as-applied challenge under the APA, holding that EPA’s 1984 decision to allow Michigan to assume permitting authority over the section 404 program is the final agency action, and the federal defendants’ responses to the Tribe’s letter requesting that they make a determination regarding the jurisdictional status of the permitted wetlands “did nothing more than reiterate that the EPA approved Michigan’s permitting program in 1984 and that the Federal Defendants would not exercise jurisdiction over the permit as a result.” Id. at 860. With respect to the requested amendments, the court held that EPA’s withdrawal of its objections to the state permit is a decision committed to agency discretion and therefore not reviewable. Id. at 854–55. The court also rejected the Tribe’s proposed NHPA claim, holding that NHPA did not apply because the Back Forty Project was not federally funded or licensed. Id. at 855–56. The Menominee Tribe appealed the district court’s decision to the Seventh Circuit. On January 27, 2020, the Seventh Circuit affirmed the district court’s decision. Menominee Indian Tribe of Wis. v. EPA, 947 F.3d 1065 (7th Cir. 2020). The Tribe filed a petition for rehearing, which was denied on May 8, 2020.

Tribal Engagement Even in the Absence of Clear Federal Jurisdiction

As sovereign nations, federally recognized tribes typically prefer federal jurisdiction over projects of importance, including mining projects, in the vicinity of their reservations or traditional territory to ensure government-to-government consultation and full review under NEPA and NHPA. That being said, NEPA and NHPA are procedural statutes that do not ensure protection of sites of importance to tribes, which often breeds distrust, confusion, and misunderstandings. And in some instances, mining companies cannot be sure of whether their projects will trigger federal jurisdiction. But the potential lack of federal jurisdiction can offer an opportunity for responsible mining companies to engage tribes in the vicinity of their projects early in the permitting process to address both cultural resource issues and environmental concerns.

Indeed, early, broad engagement and relationship building with tribes, including cultural resource investigations that would typically occur as part of NHPA review, are best practices for mining companies regardless of whether federal jurisdiction is triggered or such engagement is otherwise required. This is true for numerous reasons.

First, in cases where federal jurisdiction is clear, mining companies should not simply rely on government agencies regulating their projects because it is neither their project nor their reputation on the line. Although it is ultimately the obligation of the permitting agencies to conduct the NHPA consultation and cultural resource reviews, good faith, significant efforts by project proponents to establish dialogue and a relationship with potentially impacted tribes can make the agency process more effective and efficient. This is true even if such efforts do not result in resolution of tribal objections to the project. A permitting agency’s NEPA and NHPA consultation is made easier if the affected tribes and the project proponent at least have a good sense of where the other party is coming from at the outset of the formal consultation process. A record of good faith and persistent engagement efforts also informs how a reviewing court will approach the project in subsequent permit litigation.

Second, it is the right thing to do. The differences in cultural norms and priorities between tribes and mining companies often seem vast, and the inability to resolve these differences and avoid litigation can be frustrating (not to mention costly). However, mining companies should respect communities with ancestral ties to their project areas and listen to their concerns. Further, resource development projects are usually long-term projects, so establishing relationships with tribes in the area that may be affected by the project to learn about and address concerns if practicable is advisable. Obtaining the “social license” for these projects is a process that continues for years well after the permitting phase through operations and closure. Establishing relationships and working on developing a level of trust over time—even during contentious litigation—can pay dividends in the long run. For example, the Lundin Eagle Mine recently announced that KBIC has joined in the project’s Community Environmental Monitoring Program, which provides for third-party verification and monitoring of project impacts on the environment.

Third, early engagement facilitates efficient regulatory review regardless of whether federal approvals are needed. Both the federal and state governments have limited resources and different interests from a developer. Mining companies have more information about their projects and more investment in moving forward, so they should take ownership over how local communities receive their projects. And in the absence of federal jurisdiction, or in cooperation with the federal government, some states, like Michigan, are adopting tribal consultation processes that mimic the federal government’s required process. While tribes, given their sovereign status, are often reticent to consult with state governments, it behooves states to engage interested tribes as part of their permitting processes in an effort to understand and address their concerns. While such engagement cannot ensure any particular result, it can lead to a better understanding of tribal concerns and enhanced protection of tribal interests through state permitting processes.

Large resource development projects in areas of tribal interest are not going away, particularly in the mining space, because base and rare earth metals are essential for technologies needed to address climate change and other challenges. Good faith, persistent efforts to establish relationships with potentially impacted tribes are essential to the permitting of these projects and stewardship of resources in a way that maximizes the benefit of all stakeholders while minimizing the detriments to the greatest extent possible.