Seventh Circuit Says EPA Gave Menominee Tribe “Runaround” on Back 40 Mine, Finds No Federal Agency Action to Review

Here are the materials in Menominee Tribe v. EPA:






Lower court materials here.

Freep Article on Back 40 Mine

As a side note, the Indian Law Clinic got to work on parts of this issue a few years back, and this article nicely encapsulates how complicated it is, and how dangerous the mine is.


The Michigan-based permitting process for the Back Forty mine has left the Wisconsin side of the river mostly on the sidelines, Cox said.

“When the EPA, the Army Corps, U.S. Fish and Wildlife Service all take actions that are federal, they are obligated to consult with the tribe under laws such as the National Historic Preservation Act, the National American Graves Protection and Repatriation Act,” he said.

“(Michigan) gets to contend, ‘Nope, we’re the authority now, so we’re not obligated to do anything with you Indian nations — you independent, sovereign nations. We’ll send you a letter, let you know what we’re doing. But we won’t communicate with you directly.’ “

Cox questioned Michigan’s “strange-sounding process” of leaving so many things unresolved in the approved permit.

“You would think that, rather than try to conditionalize a permit to include all that’s required, you would just say, ‘We’re not going to issue this permit until all of these big things are addressed, like groundwater modeling,'” he said. “I guess in Michigan they don’t see it that way.”

Across the river, in Michigan’s Menominee County, the board of commissioners passed a resolution opposing the Back Forty mine back in 2017.

“It’s right on the river, 150 feet from the Menominee River,” board vice chairman William Cech said. “There’s never really been a successful sulfide mine without leaving a large stain on the landscape that they are digging in

Fletcher Testimony on the RESPECT Act before the House Indigenous Peoples Subcommittee

Worth a look, most especially for Dylan Minor’s excellent artistic rendering of the treaty cessions by Michigan Indian nations (skip ahead to page 15); available on SSRN here.

It was cherry blossom time, too!

And on the way over, we happened by the Japanese Internment Memorial, noting that the federal government placed many of the concentration camps on Indian reservations: Continue reading

Menominee Tribe Challenge to Back 40 Mine Dismissed

Here are the materials in Menominee Indian Tribe v. EPA (E.D. Wis.):

1 Complaint

7 EPA Motion to Dismiss

14 Aquila Motion to Intervene

21 Aquila Motion to Dismiss

21 Combined Response

22 Aquila Reply

23 EPA Reply

31 EPA Supplemental Brief

32 Aquila Supplemental Brief

33 Tribe Supplemental Brief

35 Tribe Motion to Amend Complaint

38 Aquila Opposition to Motion to Amend

39 EPA Opposition to Motion to Amend

40 Reply in Support of Motion to Amend

42 DCT Order

More materials on the mine here and here.

Menominee Tribe’s Notice of Intent to Sue to Enforce CWA

Links: Press Release, 60 Day Legal Notice(PDF)


The 60-Day Notice of Intent to Sue under the Clean Water Act outlines violations of federal agency duties under the Act that will affect water quality of the Menominee River and adjacent wetlands, and downstream to Green Bay, as a result of the Back Forty Mine Project.