Northeastern Minnesotans for Wilderness, the lead organization in the Campaign to Save the Boundary Waters, filed a lawsuit challenging state rules that fail to protect the Boundary Waters from damage by sulfide-ore copper mining.
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Minnesota’s 27-year old rules for sulfide-ore copper mining (“nonferrous mining rules”) prohibit mining within the Boundary Waters Canoe Area Wilderness but fail to ban mining on lands next to the Wilderness and along waters that flow directly into it. Peer-reviewed science tells us that if sulfide-ore copper mining were permitted upstream from and near the Wilderness, industrial mining pollution would degrade water that flows directly into the Wilderness, air that flows everywhere, and thousands of acres of terrestrial habitat outside the Wilderness that is seamlessly-connected to—indeed, is part of—the Boundary Waters ecosystem. Obviously this would violate Minnesota’s commitment to protect the Boundary Waters.
On Wednesday, June 24, 2020, Northeastern Minnesotans for Wilderness (NMW), the lead organization for the Campaign to Save the Boundary Waters, filed a lawsuit asking a Minnesota state district court judge to direct the Minnesota Department of Natural Resources (DNR) to amend state rules to protect the Boundary Waters from the damage that would inevitably result from nearby sulfide-ore copper mining. Specifically, NMW requests that the rules be amended to ban sulfide-ore copper mining in the entirety of the Rainy River-Headwaters. See the map below.
The northern portion of the Rainy River-Headwaters is protected as the Boundary Waters Canoe Area Wilderness. Indeed, most of the Wilderness - 80% - is within this watershed. National Wilderness Areas have the highest protected designation under federal law. The Wilderness Act of 1964 mandates the preservation of the wild character of National Wilderness Areas: untrammeled, natural, undeveloped, and providing outstanding opportunities for solitude and primitive recreation. In addition to having federal protection as a National Wilderness Area, the Boundary Waters is Minnesota’s only state Wilderness. But the southern portion of the Rainy River-Headwaters - 46% - is unprotected and is not within the national or state Wilderness System. All of these waters in the Rainy River-Headwaters flow north through the Boundary Waters, Quetico Provincial Park, and Voyageurs National Park. By amending the nonferrous mining rules to expand the mining prohibition to the entirety of the Rainy River-Headwaters, including the currently unprotected southern portion, the DNR would ensure that the Boundary Waters would be fully protected from damage by sulfide-ore copper mining.
The Rainy River-Headwaters is no place for a sulfide-ore copper mine. The Minnesota Pollution Control Agency concluded in 2017 that “[t]he majority of the water bodies within this watershed [have] exceptional biological, chemical, and physical characteristics that are worthy of additional protection.” Fifty-four percent of the Rainy River-Headwaters is protected as the Boundary Waters Canoe Area Wilderness. The southern 46% of the watershed contains very popular recreational lakes, such as Burntside Lake. In the area proposed for mining, the Birch Lake-South Kawishiwi shoreline is listed by the U.S. Forest Service as a “Recreation Use in a Scenic Landscape” Management Area. Birch Lake-South Kawishiwi is one of the most popular recreational lake areas in the Superior National Forest. Thirty businesses are located in the immediate area of proposed sulfide-ore copper mining. Thousands of homes and cabins are located in the southern portion of the watershed.
Current Minnesota nonferrous mining rules were not intended or designed to protect a world-class water-intensive Wilderness Area such as the Boundary Waters from the major damage that sulfide-ore copper mining always causes. The rules establish standards for mining districts, places where significant changes to ecosystems and landscapes are permitted and where degradation of air and water is acceptable. The rules purport to limit but not prohibit pollution of the environment; this is unacceptable in the Boundary Waters and its headwaters. If sulfide-ore copper mining were developed in the southern portion of the Rainy River-Headwaters, such degradation and pollution would inevitably damage the Boundary Waters.
These critical shortcomings compelled NMW to file a lawsuit in Ramsey County District Court under Section 10 of the Minnesota Environmental Rights Act (“MERA”) to challenge the non-ferrous mining rules.
Section 10 of MERA gives citizens and organizations the right to challenge rules and regulations that are inadequate to protect the air, water, land, or other natural resources in the state from pollution, impairment, or destruction. In the lawsuit, NMW is seeking a decision and order from the Court that Minnesota’s nonferrous mining rules are inadequate to protect the Boundary Waters because they fail to ban sulfide-ore copper mining in the headwaters of the Wilderness (the southern portion of the Rainy River-Headwaters). NMW will prove to the court the inadequacy of the rules and ask the court to require the DNR to institute administrative proceedings to take evidence and make findings regarding NMW’s claims. The DNR will be asked to protect the Boundary Waters by prohibiting sulfide-ore copper mining on lands in the entire Rainy River-Headwaters.
Mining proponents assert that Minnesota has strong environmental protection standards relative to other states. That is not completely false. For example, Minnesota has a unique water quality standard—the wild rice sulfate standard—that prohibits industrial discharge of wastewater that exceeds 10 parts per million (ppm) of sulfate into lakes and rivers that produce wild rice. Research has shown that exceeding 10 ppm can kill native wild rice. No other state is so protective. However, although Minnesota has this protective standard, it has failed to enforce it.
But the real question is “Do Minnesota’s state environmental regulations sufficiently protect the Boundary Waters?” The answer clearly is “no.” For example, if the sulfide-ore copper mine proposed by Antofagasta’s Twin Metals discharged sulfate at the allowable level of 10 ppm, that is between 300% and 600% more than the current level of sulfate in the waters of the South Kawishiwi River and Birch Lake, which flow into the Boundary Waters. Thus, the existing state rule ALLOWS water quality degradation—it doesn’t require that water quality be maintained. Any change in chemical composition—for example, increasing the sulfate level in the water—can have multiple negative effects; for example, an increase in sulfates not only harms wild rice, but also it starts a process that results in fish taking up more mercury in their bodies.
The policy of Minnesota has long been to protect the water quality in the Boundary Waters. Waters in and around the Boundary Waters are among the cleanest in the United States. The waters of the Wilderness are designated as Prohibited Outstanding Resource Value Waters under Minn. R. 7050.0335, subp. 3. These waters are afforded the highest level of protection under state and federal law. No degradation of these waters is allowed (Minn. R. 7050.0265, subp.7). Applying Minnesota’s existing nonferrous mining rules to proposals for sulfide-ore copper mining in the headwaters of the Boundary Waters would make a mockery of the Prohibited Outstanding Resource Value Waters designation.
Moreover, Minnesotans cannot rely on federal laws and regulations. Bedrock federal environmental regulations, such as the Clean Water Act and the Clean Air Act, are being eviscerated by the Trump administration. The Minnesota Pollution Control Agency says that changes to Section 401 regulations of the Clean Water Act kneecap its ability to protect the Boundary Waters from a sulfide-ore copper mine in the Rainy River-Headwaters.
State agencies have authority to make rules as prescribed in laws passed by the Minnesota legislature. Laws state the goals or policy of the state. Rules are the roadmap to implementation of the goals or policy. If the rules don’t achieve the goal, then there is a major disconnect. If you intend to go to Ely but the roadmap instead takes you to Rochester, you need to get a new map. Such is the case with rules related to sulfide-ore copper mining near the Boundary Waters. The current Minnesota DNR nonferrous mining rules simply will not protect the Wilderness in the way the legislature has intended. Minnesota’s 1976 statutory ban on mining within the Boundary Waters is meaningless if state rules allow mining in the Wilderness headwaters that will degrade the waters of the Wilderness and the ecosystem of which the Wilderness is a part.
NMW’s lawsuit under MERA utilizes that crucial state law to challenge the nonferrous mining rules that fail to protect the Boundary Waters. MERA (Minnesota Statutes, Chapter 116B) says that the goal of Minnesota is that “present and future generations may enjoy clean air and water, productive land, and other natural resources with which this state has been endowed.” MERA provides the backbone for the enforcement of many of Minnesota’s environmental protections by allowing citizens and organizations to bring civil actions in court. NMW’s lawsuit is filed under Section 10 of MERA, which allows a legal challenge to rules that are inadequate to protect air, water, land, or other natural resources within Minnesota from pollution, impairment, or destruction.
Specifically, the lawsuit alleges that Minnesota DNR Rule 6132 is inadequate to protect the Boundary Waters. Minn. R. 6132, which was adopted in 1993, regulates how nonferrous mining (i.e., not iron mining but including sulfide-ore copper mining) can be conducted in the state. It provides direction for how nonferrous mines should be constructed—including buffers, tailings basin design, dust suppression, and other physical considerations. The rules prohibit nonferrous mining within the Boundary Waters but do not prohibit siting such mines in the headwaters of the Boundary Waters. The rules don’t meet the goal of the legislature’s policy because they would allow this uniquely toxic and accident-prone form of mining to occur in the southern portion of the Rainy River-Headwaters—the source of waters that flow into the Wilderness. Sulfide-ore copper mining in the headwaters would threaten the water, air, land, vegetation, and wildlife of this unique and irreplaceable Wilderness Area owned by the American people.
Scientific reports and studies of sulfide-ore mines in other places have taught us a lot about the environment and sulfide-ore mining in the 27 years since Rule 6132 was adopted. The Minnesota rules need to be updated to incorporate that knowledge. We now know that protecting water quality of Outstanding Resource Value Waters requires among other things protecting the watershed. Runoff from the proposed Antofagasta/Twin Metals mine would enter Birch Lake and flow into the Boundary Waters—that is a certainty. Even small changes in concentration of pollutants will affect the ecosystem. The clean waters of the area have virtually no calcium carbonate, and thus will not buffer or moderate acid mine drainage pollutants. Keeping pollution out is the only feasible protection. Further, water quality degradation would make the Boundary Waters susceptible to an army of invasive species—both aquatic and terrestrial. These don’t respect boundaries, and a mine operation of this type and magnitude would facilitate the introduction of scores of species into the Boundary Waters that are not native and that would disrupt the functioning ecosystem. Noise, light, and air pollution would be carried for miles into the Wilderness, and the massively ugly tailings pile would be there forever.
Part of Minn. R. 6132.2000 deals to some extent with the siting of nonferrous mining operations. Subpart two lists locations within the state where no such mining may occur, including the Boundary Waters. This is consistent with state policy to protect the Wilderness from the negative impacts that inevitably flow from mining. We know from a host of high-quality scientific studies and from simple observation that water, air, land, and wildlife degradation would be severe. The human experience of the Boundary Waters would be negatively impacted by nonferrous mining outside the Wilderness perimeter itself but in its headwaters. NMW’s lawsuit asks that the entire Rainy River-Headwaters be added to the list of locations that are off-limit to nonferrous mining.
Subpart 3 of the current rule establishes “buffer areas.” The goal of that section is, in part to “... minimize adverse impacts on natural resources and the public. Separations shall be maintained between mining areas and adjacent conflicting land uses.” The rule goes on to define a buffer between the Boundary Waters and any nonferrous mining surface disturbance. In some places, the buffer is only ¼ mile in width. Clearly, the drafters of the rule knew that mining activity near the Boundary Waters would be detrimental. Unfortunately, they didn’t have today’s science that proves that mining anywhere in the watershed would be detrimental to the Wilderness. That disconnect between state policy and rules is the essence of NMW’s legal challenge.
The lawsuit asks that the existing DNR rule be updated to reflect modern scientific knowledge. The DNR needs to acknowledge the 27 years of scientific advancement and study since the rule was adopted and recognize that, in order to protect the extensively interconnected hydrology of the Boundary Waters, we must protect the whole watershed. The entire Rainy River-Headwaters must be off-limits to sulfide-ore mining. It is unrealistic to think that a rule that provides a small buffer but that continues to allow nonferrous mining in the headwaters of the Boundary Waters will provide adequate protection. In fact, it is a roadmap to disaster.
The lawsuit was filed in Ramsey County District Court. If the judge agrees that our case has merit, the judge will order the DNR to initiate a new rulemaking process. This is a 2-year, public process that would incorporate current knowledge to develop a new rule to guide future projects. The DNR would submit a draft rule, and the judge would take evidence to determine whether the rule is adequate. If it is not, the agency will be compelled to revise; if it is, it becomes the new rule.
NMW is fortunate to be represented by Ciresi Conlin LLP. The firm’s attorneys have experience with MERA, and are bringing great expertise, knowledge, and skill to the table. We are extremely grateful for their help!
The existing rule falls far short of achieving the stated policy of the State of Minnesota to protect the Boundary Waters. We know that 70% of Minnesotans oppose sulfide-ore copper mining in the watershed of the Boundary Waters. The policies and the rules of the state should reflect current science and the public interest in preserving the nation’s most popular Wilderness. Here is a chance to make that true!