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Mine’s future uncertain, despite near-certain passage of mining bill

By   /   February 27, 2013  /   2 Comments

Part 3 of 7 in the series Mining in Wisconsin

By Kirsten Adshead | Wisconsin Reporter

MADISON – Sen. Tim Cullen’s comment, made in passing, may end up being remarkably prescient.

And it may, ultimately, represent a key factor in determining whether Gogebic Taconite actually ends up building an open pit iron mine in the Penokee Range spanning parts of Iron and Ashland counties in northern Wisconsin.

The Wisconsin state Senate on Wednesday took up a controversial bill aimed at streamlining the mining process. But while the bill's passage is all-but-certain, the rights and requirements of Native American tribes and the U.S. Army Corps of Engineers call into question the future of the northern Wisconsin that is the impetus for the bill.

The Wisconsin state Senate on Wednesday took up a controversial bill aimed at streamlining the mining process. But while the bill’s passage is all-but-certain, the rights and requirements of Native American tribes and the U.S. Army Corps of Engineers call into question the future of the northern Wisconsin that is the impetus for the bill.

“As I’ve said before, if we don’t modify this legislation, the only new jobs in the next several years will be for lawyers,” the Janesville Democrat said.

Cullen spoke on the state Senate floor at the beginning of hours of debate over a controversial bill that would alter Wisconsin’s mine-permitting process and regulations, intended to encourage Gogebic to move forward with its proposed mine and promised jobs.

The future of the legislation, which passed the state Senate late Wednesday, is a foregone conclusion.

But the mine itself? Not so much.

And much of what’s at the heart of the mining bill’s controversy – Wisconsin’s time frames for permitting, for example, and provisions critics say “lower the bar” on environmental standards – might not, in the end, mean a whole lot.

Because lost in much of the debate over the mining bill is the fact that the state only has limited authority to give the go-ahead to mine.

Native American tribes – in this case, the Bad River band of the Lake Superior Tribe of Chippewa Indians – have their own rights, and the U.S. Army Corps of Engineers has its own environmental requirements.

Those rights and requirements are no joke, and they’re not secondary to the state.

Need a reminder? Talk to the folks up in Crandon, where a decades-long fight over a proposed mine ended when the mining company gave up and Ojibwe and Potawatomi tribes joined forces to purchase the land on which the mine was to have been built.

During the 1970s and 1980s, Wisconsin Indian tribes successfully fought for off-reservation hunting and fishing rights, rights that had been given them as part of treaties in the 1800s but not strongly enforced after Wisconsin became a state, said Larry Nesper, a University of Wisconsin-Madison anthropologist and expert on tribal rights.

The Gogebic mine would be located near the Bad River headwaters.

If the state of Wisconsin should begin to infringe upon their rights to hunt, fish and gather (including possible environmental impacts of the mine) … that implicates their property rights and this becomes available for purposes of litigation,” Nesper said. “So the tribes have a legal standing in all of this that needs to be considered.”

The Bad River tribe has not indicated whether it would file a federal lawsuit, but it has been a firm critic of the mining bill.

The U.S. Army Corps of Engineers, meanwhile, requires that mine applicants meet the federal government’s environmental standards.

And although much of the debate over Wisconsin’s mining bill involves establishing a certain time frame for a permitting process, “The federal process isn’t constrained to a time frame,” said Rebecca Glaser, the Corps’ regulatory programs manager for Wisconsin.

Therefore, even if Gogebic applies for and receives a Wisconsin mining permit, under the time lines Republicans have been fighting for, the mine won’t go ahead until the Army Corps of Engineers is satisfied the environmental protections are in place, Glaser said.

That could entail requiring separate environmental impact statements, which likely won’t perfectly align with each other, potentially leading to lawsuits over which environmental impact statement should be used, Cullen said.

Wisconsin, of course, has its own rights, which aren’t trumped by Native Americans’ or the Army Corps of Engineers.

And if the Bad River tribe ends up filing a federal lawsuit, Nesper said, “The burden of proof (regarding environmental impacts) lies on the tribes, and they’re talking about the future, so that’s a challenging thing to prove in court to talk about the damages.”

Still, the complexity of state-federal-tribal rights regarding mining might indicate that Cullen is right: The only jobs coming out of this whole mining bill anytime soon might be for the lawyers litigating the process.

So if Ashland and Iron counties hope to improve their employment rate in the coming years, starting a law school might be a worthy endeavor.

Contact Kirsten Adshead at kadshead@wisconsinreporter.com.

Part of 7 in the series Mining in Wisconsin

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  • Midwest Mom

    I can’t think of a better way to marginalize a sovereign nation than to quote an expert on anthropology. I can’t see this happening for any other group of people. Way to keep prejudice alive and well. I’m sure that this is just what the mining issue needs.

  • Scholarly View

    Please tell me how Professor Nesper’s comment marginalizes the sovereign Native nations of Wisconsin. His comment clearly states that the tribes have legal standing to litigate against the Gogebic mine. Far from marginalizing the tribal authorities, this comment supports their proactive intervention into the highly complicated political issue of a possible open-pit iron mine.

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