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What does a ‘pathbreaking’ federal decision to revoke a NewRange mine permit in Minnesota mean for tribes and industry?

The legal route by the Fond du Lac Band to take on the project formerly known as PolyMet was the first of its kind, as was the outcome. And it could have broader implications for tribes and industry in Minnesota going forward.

Leftover structures from an old LTV Steel taconite facility that PolyMet hopes to refurbish and reuse for the copper-nickel mine it plans to build.
Leftover structures from an old LTV Steel taconite facility that PolyMet hopes to refurbish and reuse for the copper-nickel mine it plans to build.
MinnPost file photo by Walker Orenstein

Nancy Schuldt was hired by the Fond du Lac Band of Lake Superior Chippewa in the late 1990s to develop local water quality standards, a power granted by the federal Clean Water Act for states and tribes to address pollution.

At the time, tribal leaders told her the new regulations — today aimed at preserving food supplies like fish and wild rice — weren’t simply a bureaucratic task, but were one of the best ways for the Fond du Lac Band to exercise sovereignty in a modern world and protect its resources.

“There’s fewer than 50 tribes nationwide out of over 570 recognized tribes that have gone that distance” to craft pollution limits that must be scrutinized and approved by the Environmental Protection Agency, Schuldt said last year during a public hearing with federal officials in Carlton.

The tribe, it turns out, may have been right. On Tuesday, those strict water pollution limits were at the heart of a decision by the U.S. Army Corps of Engineers to revoke a crucial permit for a large proposed copper-nickel mine near Hoyt Lakes owned by PolyMet Mining and Teck Resources Limited.

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The Corps sided with the Fond du Lac Band and the EPA, concluding that a wetlands permit for the open-pit mine may not prevent mercury pollution and other contamination from violating the Band’s water standards on a reservation the EPA says is 100 miles downstream in the St. Louis River watershed. And the outcome appears to be unique. The Fond du Lac Band said in a statement it was the first time the Army Corps had ever revoked this type of permit based on a tribe’s water quality standards.

Paula Maccabee
Paula Maccabee
“This is all hugely important, pathbreaking legal precedent,” said Paula Maccabee, attorney for the nonprofit WaterLegacy, which has fought the mine plan.

The decision dealt a major blow to a project that has been pending for nearly two decades, leaving supporters stunned and furious toward a Biden administration that has now halted two mines in Minnesota despite pushing for domestic sources of metals to help transition away from fossil fuels.

NewRange Copper Nickel, which is the moniker for the joint venture between PolyMet and Teck, released a written statement calling the Army Corps ruling a “reversal of thoroughly reviewed water quality data that has been collected and assessed over the last decade.” The organization contends its water containment and treatment systems would actually lead to a cleaner St. Louis River.

The Army Corps decision has also left many wondering about the legal and political implications of the permitting decision for not just this mine, but for other projects in Minnesota like the Tamarack mine proposal in Aitkin County that could face similar tribal objections in the future.

How we got here

The Fond du Lac Band has long raised concerns about the NewRange project, which first entered environmental review as PolyMet almost 20 years ago in 2004. But the state and federal government issued permits for the mine, disagreeing with many of those concerns.

The Army Corps, for instance, approved what’s known as a Section 404 permit under the Clean Water Act for the project in 2019. That decision was made under President Donald Trump, though two DFL governors in Minnesota have approved and stood by a suite of other permits for NewRange.

The 404 permit would have allowed dredging and filling that would impact more than 900 acres of wetlands tied to building an open-pit mine for copper, nickel, cobalt, palladium, gold, silver and more.

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But later in 2019, the Fond du Lac Band sued in federal court, arguing that the EPA and the Army Corps did not follow rules set by the Clean Water Act that allow nearby jurisdictions that might be impacted by such an industrial project to have a larger say in the permitting process.

The tribe won. And because the Fond du Lac Band had already taken the uncommon step of writing EPA-approved local water quality standards, it was treated as a state akin to Minnesota under the Clean Water Act with more sway in the regulatory arena to enforce those regulations.

Anyone can file comments against a project or publicly campaign against a mine. The Fond du Lac Band has also said the feds have other obligations to take their views seriously. But this “state” status put the tribe on stronger footing as regulators considered the impacts of pollution.

By this point, Joe Biden had become president, meaning the EPA and the Corps were under new leadership. And this time, the EPA agreed with some arguments made by the Fond du Lac Band and said it didn’t have enough information to answer other key questions. The EPA recommended the Army Corps revoke the permit. The Army Corps, which had suspended the Section 404 permit for NewRange in 2021, followed that guidance.

The NewRange project has faced many lawsuits over its permits, some successful, others not. But the tribe’s legal route and outcome hadn’t happened before. Maccabee said it’s rare for a state to object to a permit elsewhere in this way, and it was a novel approach for a tribe that took years of research.

“This is the first time that a tribe objected to a federal permit under the basis of their rights under the Clean Water Act to object to a permit that would violate the tribe’s water quality standards,” Maccabee said. “This is the first such objection ever.”

What the Band’s objections were — and how NewRange responded

What, exactly, led to that objection?

In the case of this permit, it was the project directly damaging wetlands or potentially altering the hydrology of thousands of additional acres of wetlands, possibly causing mercury and other contamination to travel downstream to the St. Louis River. The river forms the northern boundary of the tribe’s reservation.

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The Fond du Lac Band’s mercury standards are nearly twice as tough as Minnesota’s. The tribe justified that by saying Fond du Lac members eat far more fish, and mercury can build up in those animals and pose a risk to human health. The St. Louis River already has mercury pollution well above the Band’s regulation.

Fond du Lac Band chairman Kevin Dupuis
Fond du Lac Band chairman Kevin Dupuis
“We must caution our people on their consumption of fish due to increased levels of mercury, methylmercury in our waters and the food web,” said Fond du Lac Band chairman Kevin Dupuis, at the U.S. Army Corp hearing last May.

After the 404 permit had been issued in 2019, the tribe also adopted standards for “specific conductance,” a measurement of substances like sulfate, sodium, chloride, calcium and other things that can create issues like making water harder, Schuldt said Thursday.

Sulfate can harm wild rice that the tribe depends on for sustenance. Higher levels of specific conductance can damage the ecosystem in other ways, the tribe contends, like hurting an effort to reintroduce lake sturgeon in the St. Louis River.

NewRange has strenuously objected to the idea that its mine would lead to higher levels of mercury in the tribe’s waters.  That’s in part because of their research on the nature of the wetlands. But also because NewRange would build a treatment system to clean tainted water, and would also take steps to capture and treat water currently seeping from old taconite tailings at the plant site left by a different company. That’s why NewRange — and state regulators — argue the project will lead to less mercury and sulfate in the watershed.

The organization maintains that even rain and snowfall would add more mercury to the river system than its mine, which is far away from the reservation.

“PolyMet’s water discharges will represent less than 0.5% of the water flowing in the St. Louis River as it passes through the reservation,” say documents submitted by the company to the Army Corps last year. “Just as important, the water that PolyMet discharges will be cleaner — with less mercury, less sulfate, and lower specific conductance — than the water flowing from the site today.”

In a 27-page decision, Colonel Eric R. Swenson, commander of the Army Corps St. Paul District, disagreed with some of PolyMet’s arguments and said it wasn’t able to resolve other “scientific differences of opinion,” ultimately leading the agency to revoke the permit.

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What does this decision mean?

For NewRange, the decision could mean a lawsuit of their own, or alterations to the project. The Corps said the companies could submit a new application for the permit. The companies behind the mine are still mulling their options.

But beyond this particular mine, will a novel win for the Fond du Lac Band clear the path for tribes to stop other industrial projects they object to? It’s complicated. Not every tribe has its own water standards, and the type of project might matter.

In Minnesota, only the Fond du Lac Band and the Grand Portage Band of Lake Superior Chippewa took the necessary steps to be treated as a state under the Clean Water Act and have their own water quality standards approved by the federal government, Schuldt said. The Leech Lake Band of Ojibwe and Red Lake Band of Chippewa Indians are in the process of adding them.

One tribe keeping a close eye on the NewRange outcome was the Mille Lacs Band of Ojibwe, which has campaigned against another potential nickel mine planned near its land in Aitkin County by Talon Metals.

But there are a few reasons that case might be different.

The Mille Lacs Band does not have its own water quality standards. That smaller project, known as Tamarack, would also be an underground mine, meaning it wouldn’t have the same type of impact on wetlands as NewRange. The company is also building a processing facility in North Dakota, which could lead to an easier regulatory road since the project would have less land disturbance and move reactive rock to a drier environment. Talon spokesman Todd Malan declined to comment about the NewRange decision.

Still, Kelly Applegate, commissioner of natural resources for the Mille Lacs Band, told MinnPost the tribe has been exploring whether it can add water quality standards, especially as the Tamarack project has inched closer to formally entering the environmental review process later this month. And Applegate said the decision showed a federal government more willing to side with the concerns of tribes.

“We would expect that in reviewing the Tamarack mine proposal that we’re dealing with the same level of scrutiny and review of science will happen there,” Applegate said.

Jason George
Jason George
Jason George, business manager for the International Union of Operating Engineers Local 49, said supporters of the NewRange project also view the Army Corps decision as unusual and setting a precedent, though he views it as a bad one. And he worried it could lead to tribes having “ultimate veto authority” over any project near them even if state regulators believe it meets pollution standards. “Whatever project the tribe doesn’t agree with will not be able to be built,” he said.

It may not impact every large construction project, but it could prove a future obstacle, George said. That’s particularly true with mining, he said. There is already speculation about whether taconite mines that need renewed permits could face hurdles, since they’re in the same watershed as NewRange and the Fond du Lac Band has raised concerns about mercury from that existing industry.

Perhaps more than anything, George said the episode proved the Biden administration is taking a “100% anti-mining position,” by blocking the NewRange project and the Twin Metals project near Ely before that. Could any form of copper-nickel mine be permitted in Minnesota?

“The answer to that question I believe is no at this point,” he said. “At least under a Democratic president.”

Schuldt, from the Fond du Lac Band, said it was a mixture of science and politics that led to the permit being revoked. “Politics always plays a role,” she said. “Who is sitting in the governor’s office or who is sitting in the White House, who is controlling Congress always makes a difference.”