Mary Annette Pember
Indian Country Today

The Minnesota Supreme Court upheld a decision reversing a critical mining permit for the proposed PolyMet copper-nickel mine in northeastern Minnesota, in what was hailed as a win by the Fond du Lac Band of Lake Superior Chippewa and environmentalists in their long-running battle over the $1 billion project.

The high court’s decision on April 28 affirmed the Minnesota Court of Appeals’ decision that the permit should not have been issued without further review.

“In layman’s terms, the PolyMet permit to mine just went boom,” said Paula Maccabee, an attorney for WaterLegacy, one of the groups fighting the project. “It was overturned and it starts over.”

The decision is considered a resounding victory for downstream communities that would bear the brunt of pollution and other risks from the proposed mining project in St. Louis County, including the Fond du Lac Band, according to a statement released by the tribe, WaterLegacy, Friends of the Boundary Waters Wilderness and the Center for Biological Diversity.

“The Band is extremely pleased with the Supreme Court’s invalidation of the permit to mine,” Fond du Lac Band Chairman Kevin Dupuis said in the joint statement. “The decision recognizes that the Department of Natural Resources failed to address significant factual and legal issues that must still be addressed.”

He continued, “The Band is not opposed to mining, just irresponsible mining and will continue to advocate and fight to ensure that the waters, natural resources and environment are protected for the Band, its members and all Minnesotans.”

Leaders at PolyMet also claimed the Supreme Court decision as a victory, however, noting the court sided with the company and the Minnesota Department of Natural Resources on six of the eight contested issues.

“This is a big win for PolyMet, our supporters, and for industry in Minnesota,” said Jon Cherry, chairman, president and chief executive in a statement issued by the company.

(Related: Fond du Lac Band wins halt to copper mine)

Toronto-based PolyMet, whose largest stakeholder is Swiss commodities giant Glencore, hopes to build the first copper-nickel mine in Minnesota. The open pit mine would be near the Iron Range town of Babbitt with the processing plant a few miles away from Hoyt Lakes and upstream from the Fond du Lac reservation.

The company says the mine would create hundreds of jobs while supplying metals that the U.S. economy needs. Opponents say the copper mining and waste facilities would discharge sulfates and mercury into waterways that ultimately drain into Lake Superior, and release sulfur compounds into the air.

Back-to-back rulings

The Fond du Lac Band successfully asserted its rights recently as a “downstream state” under the Clean Water Act in a federal lawsuit filed in 2019 against the Army Corps of Engineers and the Environmental Protection Agency over separate PolyMet permits.

A former iron ore processing plant near Hoyt Lakes, Minnesota, shown here on Feb. 10, 2016, would become part of a proposed PolyMet copper-nickel mine. The Fond du Lac Band is fighting the mine in court, saying it would pollute the waterways. (AP Photo/Jim Mone)

After a federal judge ruled the government had not properly considered the impact on tribal waters, the Army Corps issued a decision temporarily halting wetlands permits it had previously issued to PolyMet until the EPA releases a “may affect” determination. It is the first time a downstream tribe won the same consideration given to states that are downstream from projects.

In the state court ruling this week, the court said the state Department of Natural Resources should have set a fixed period for the permit to mine, rather than leaving it open-ended. It ordered the agency to determine and set an appropriate term.

The court also ordered the agency to conduct a trial-like proceeding known as a contested case hearing to gather more evidence on whether a bentonite clay lining for the mine’s waste basin would prevent acid mine drainage and keep pollution contained. Justices said there is no evidence in the record that the lining would be effective.

“This victory is a victory for the Fond du Lac Band as well as the environmental groups who all appealed the permits,” said Maccabee.

Although the court’s ruling on the effectiveness of the bentonite clay lining was narrower than opponents had sought, the decision was “not trivial” because it would force the Department of Natural Resources to better deal with long-term water pollution concerns, Maccabee said. It also opens the possibility that opponents could raise broader environmental concerns during the upcoming hearing, she said.

The DNR said in a statement that it is reviewing the decision but noted that the court backed the agency’s position on some legal and procedural issues. PolyMet said it planned a legal response later next week.

Looking ahead

The Minnesota Supreme Court disagreed, however, with parts of the appeals court’s January 2020 decision.

The justices said that the Department of Natural Resources did not abuse its discretion by declining to hold a contested case hearing on the entire project because it had “substantial evidence” to support its conclusions when it awarded the permit to mine.

PolyMet and the DNR argued that there was no need for a broad contested case hearing because the project had already undergone 11 years of public environmental reviews.

The Supreme Court also said the appeals court erred when it reversed two separate dam safety permits, saying those permits were not governed by the same statutory standards as the permit to mine. Dams are included in the project.

Bruce Richardson, spokesperson for PolyMet, described the order for a contested court hearing as focusing on a very narrow slice of the permit.

“Because the contested case is on such a narrow subject (the bentonite cap on our tailings basin after closure) we believe it will be handled by the DNR in an expeditious manner and we look forward to working through that process,” Richardson wrote in an email to Indian Country Today.

Environmentalists disagreed.

“PolyMet’s toxic mine proposal poses huge threats to northeastern Minnesota’s wildlife, wetlands and downstream communities,” said Marc Fink, senior attorney at the Center for Biological Diversity.

“The court’s ruling ensures a more thorough and objective review of this massive proposal. We believe the review will show that the headwaters of the Lake Superior watershed is absolutely not the place for this proposed open-pit copper mine,” Fink said.

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The Associated Press contributed to this article.