Opponents of a nickel and copper mine that is slated to begin blasting this month have asked a judge to issue an injunction on drilling while she considers an appeal of permits granted for the project.

The Huron Mountain Club, Keweenaw Bay Indian Community, National Wildlife Federation and Yellow Dog Watershed Preserve say that the Dept. of Natural Resources ignored their own experts during the permitting process.

The groups warn that acid runoff from the mine is likely to impact Lake Superior and destroy habitat for the rare coastal brook trout.

They also argue that mining at the site will destroy Eagle Rock, a 60-foot-high outcrop on the Yellow Dog Plain that holds cultural significance for the Keweenaw Bay Indian Community.

“My people have prayed and held ceremonies at Eagle Rock since time immemorial,” Susan LaFerniere, a member of the Keweenaw Bay Indian Community said in a statement Thursday. “No one should be allowed to blast it apart. I hope the judge grants this request.”

Michigan’s mining law forbids activities that damage places of worship but in a controversial 11th hour decision last year the DNR approved the project, stating that only buildings are to be considered places of worship.

Former Upper Peninsula congressman Bart Stupak has warned that Michigan is not prepared to regulate Kennecott’s mining project.

Last year he said that Kennecott’s parent company, Rio Tinto, is known for cutting corners on environmental and safety matters and that a $17 million assurance bond put up by the company would not be enough to deal with damage that the mine could create.

Responsibility for regulating operations at this massive project falls entirely to the state and DEQ officials have acknowledged that may not not be able to inspect the mine even once a year.

Pryor is the sulfide mine campaign director for the Yellow Dog Watershed Preserve. She was arrested and charged with trespassing on April 20 after she refused to leave land on the Yellow Dog Plains that had been leased to Kennecott by the state. Pryor said that she believes that Kennecott’s lease is not valid because the company has not obtained a necessary federal environmental permit for the mine.

According to Kennecott’s lease with the state, all necessary permits for the project must be obtained before the lease is valid.

The Marquette Mining Journal reports that Marquette County District Court Judge Roger Kangas did not allow testimony and exhibits relating to the validity of Kennecott’s lease on the land.

Assistant Marquette County Prosecuting Attorney David Payant argued Koch had no standing to argue a violation of the lease terms between the state and Kennecott.

“Even if there was a violation of the lease as part of the permitting process, that doesn’t matter in a trespassing case,” Payant said.

Koch suggested there are differences between breaches of a public versus private lease. “If Ms. Pryor, as a member of the public, doesn’t have standing in a violation on public land, no one does,” Koch said.

Kangas said the state is the entity in charge of enforcing the lease. He said if a breach occurred, it doesn’t give anyone from the public the right to go onto the property.

Shortly after Pryor’s April arrest, another group of mine opponents gathered on the land in question in an effort to block mine development and protect a bedrock outcropping known as Eagle Rock which has cultural significance to area tribes.

A month into the encampment Kennecott ordered the demonstrators removed.

Two members of the Keweenaw Bay Indian Community — Chris Chosa and Charlotte Loons foot — refused to leave the area and were charged with trespassing. They are scheduled to face jury trials in early August.

Pryor has not yet been sentenced.

In a blog post titled Coming soon: Michigan’s version of the BP disaster Buchsbaum writes that acid mine drainage is the inevitable result of the mining planned by Kennecott near Lake Superior and that the state’s own experts have warned that the operation poses a significant risk of mine collapse.

What’s Kennecott’s plan if any of these disasters come to pass? It doesn’t have one. This mine was vetted and recommended for approval by the Michigan Office of Geological Survey, part of the DNRE and the state equivalent of the now-infamous U.S. Minerals Management Service.

Buchsbaum recounts some of the scandalous regulatory moves that led to approvals for the project:

Well, the head of the Survey’s mining team called the mining project “my baby” and identified Kennecott as his “customer.”

During the application process, he admitted that he concealed an expert memorandum that reported on the risk of mine collapse, after which he was suspended …. and then reinstated as head of the mining team after an internal state investigation said he was motivated by ignorance, not malfeasance. (Well, that’s a relief, right?) Another member of the state’s mining team formed a business partnership with Kennecott employees to offer mining services to the private sector (the partnership was dissolved after it became public). Finally, the Governor’s UP representative who helped her formulate her position on the mine has also left government service to work for….. you guessed it: Kennecott. The mining team recommended approval to the Michigan DEQ before it merged with the DNR to form the DNRE. And just days before that merger – perhaps to avoid tarring the new DNRE with this terrible decision – a mid-level DEQ staff member gave final approval to the operation of the mine.

The National Wildlife Federation along with the Yellow Dog Preserve, Keweenaw Bay Indian Community, and Huron Mountain Club are suing the state over permits issued to the mine.

A member of the Summer Cloud drumming group performs during a 2008 ceremony at Eagle Rock

Two days before the DEQ ceases to exist and a week after its director stepped down, DEQ moved to wrap up a long standing fight over permits for a planned nickel sulfide mine by concluding that only buildings may be considered “places of worship.”

A rock that is sacred to Anishnabe people need not be considered when issuing a mining permit because state law only recognizes buildings as places of worship, the Department of Environmental Quality announced Thursday.

This decision cleared the way for DEQ to finalize permits for a mine planned for public land on the Yellow Dog Plain northwest of Marquette.

The resolution comes at a time of great tumult for the department. Director Steven Chester resigned last week, and the department is slated to come under the leadership of DNR director Rebecca Humphries when it is rolled into the new Michigan Department of Natural Resources and Environment on Jan. 17.

For seven years the Kennecott Eagle Minerals Company, a subsidiary of London-based Rio Tinto, has been trying to develop the mine project. The company promised hundreds of construction and mining jobs but has faced opposition from groups that are concerned that acid drainage from the mine will damage the nearby Salmon Trout River and Lake Superior.

The National Wildlife Federation, Keweenaw Bay Indian Community, Yellow Dog Watershed Preserve, and the Huron Mountain Club together filed an administrative appeal of DEQ’s 2007 approval of mining and groundwater discharge permits for the mine.

Eagle Rock, photo courtesy Yellow Dog Summer

Over the course of more than a year the groups described numerous mine safety and environmental concerns. They also argued that the DEQ had failed to properly consider the impact of the mining on traditional Native American uses of the area, including the collection of medicinal plants and the use of Eagle Rock in religious ceremony.

On Aug.18 2009 DEQ Administrative Law Judge Richard A. Patterson recommended that the Kennecott permits “be allowed with the exception that provision be made to avoid direct impacts to Eagle Rock that may interfere with the religious practices there on.”

State mining law requires that “Residential dwellings, places of business, places of worship, schools, hospitals, government buildings, or other buildings used for human occupancy all or part of the year” be taken into account when permitting a mine.

“Kennecott and, as a consequence, DEQ, did not properly address that impact on the sacred rock outcrop known as Eagle Rock as a place covered by Part 632 Rules,“ Patterson wrote in his review of the case.

“…[T]he excavation and drilling in the immediate area of Eagle Rock and fencing it off will materially affect its use as a place of worship,“ he wrote. “This should in some manner be accommodated , and would best be done so by relocating the adit and access to the mine to a location that would not interfere with that function.”

On Nov. 6 2009 DEQ Director Chester remanded the case back to Patterson and asked that he expand on his discussion of the religious significance of Eagle Rock and DEQ’s responsibility for places of worship under state law.

Chester promised to issue a final decision on the permits after receiving the supplemental analysis from Judge Patterson.

Just two weeks ago the DEQ still expected to wait to decide on the permits until hearing from Patterson.

A Dec. 29 Marquette Mining Journal article on the potential effect of DEQ restructuring on permits for the Kennecott mine reported:

“[DEQ spokesman Bob McCann] said he had no indication when Patterson might provide the additional information so a final decision can be made on the contested case.”

In an interview Thursday afternoon McCann denied that the timing of the decision had anything to do with the impending restructuring of the department.

“We were hoping to have this done in December,” he said.

McCann said that DEQ senior policy advisor Frank Ruswick reviewed the documents filed and decided DEQ could issue a final order without a modified proposal from Judge Patterson.

“Michigan mining law references buildings that are places of worship,“ McCann said. “Eagle Rock doesn’t fit into that under Michigan mining law, therefore it doesn’t apply in this case.”

National Wildlife Fund attorney Michelle Halley decried DEQ’s move as “an effort to push this through before [Rebecca Humphries] becomes the director of the decision making body.”

Halley said that she finds it “totally illogical” that DEQ would request an opinion from an administrative law judge and then make a decision on the permits before receiving it, adding that her clients intend to appeal DEQ’s decision in circuit court.

Kennecott responded to DEQ’s final approval in statement saying that it plans to begin clearing the mine site and constructing a water treatment facility this year.

“Today’s decision by the State is great news for our project and a community and region that has been anticipating the job opportunities and economic contribution our project will trigger,” Rio Tinto / Kennecott Eagle Minerals General Manager Jon Cherry, said in the statement. “Permitting this project has been a very rigorous process that has enabled Kennecott to develop an exceptionally responsible design and approach to mining in the 21st Century in Michigan.”

Kennecott said that it aims to begin production of nickel and copper from the mine in 2013.

The Michigan Environmental Council called DEQ’s final approval “disappointing and inappropriate.”

“Strong Michigan laws were written specifically to protect Michigan’s waters, including the Great Lakes, from toxic byproducts this mining will create,” MEC Spokesman Hugh McDiarmid Jr. said in a statement. “It is unfortunate that the state has chosen not to fully enforce these laws in the permitting process.”

The Salmon River flows through the Yellow Dog preserve. (Creative Commons photo by SavetheWildUP via Flickr)

Opponents of a nickel sulfide mine planned by Rio Tinto Corp.’s Kennecott Eagle Minerals Co. for public land on the Yellow Dog Plain near Lake Superior are seeking a chance to argue a fundamental point — that by issuing permits for the mine and leasing 120 acres of public land to the company, the state has failed in its job to steward natural resources in the public interest.

Although arguments over the planned mine have been going on for years, mine opponents — the National Wildlife Federation, the Keweenaw Bay Indian Community, the Huron Mountain Club and the Yellow Dog Watershed Preserve — have not yet had a venue in which they could squarely address the basic public trust issue.

Earlier this month, Ingham County Circuit Court Judge Paula Manderfield ruled that she did not have jurisdiction to take up the public trust issue.

In that case, the Michigan Department of Natural Resources, represented by the attorney general’s office, argued that the public trust doctrine doesn’t apply to all publicly owned lands, just “navigable waters and lands beneath and in contact with them.”

Michelle Halley, attorney for the National Wildlife Federation, said Manderfield’s ruling “eviscerates the public’s ability to implement the doctrine that requires that assets held by the State must be managed for the good of the public.”

On Friday, the groups announced they would take the issue to the Michigan Court of Appeals.

In announcing the appeal, Halley pointed to a recent decision by Administrative Law Judge Richard Patterson in the contested case hearing over permits issued to the mine by the Department of Environmental Quality.

In a decision announced last week Patterson upheld DEQ permits for the mine, but he ordered state agencies to consider whether proposed coal plants represents the most “feasible and prudent” approach to meeting the state’s power needs.

Also, just last week, as part of an effort to protect state waters from commercialization, State Rep. Dan Scripps (D-Leland) announced legislation that would declare that all water is to be held in the public trust.

Kennecott spokeswoman Deborah Muchmore did not return a call seeking comment.

In February, Rio Tinto announced that it was putting development of the Kennecott mine on hold in response to changes in the metal market.