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Citizen Suit May Be Filed Against The DNR Over Its Failure To Enforce State Mining Laws

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DNR RESPONSE
July 14,2003
Mr. Glenn M. Stoddard
Attorney at Law
634 West Main Street -Suite 101
Madison, WI 53703


Subject: Notice of Intent to File Citizen Suit under Wis. Stat. § 293.89(1)(b)


Dear Mr. Stoddard:

I am responding to the Notice of Intent to File Citizen Suit you served on Secretary Hassett on June 18, 2003.

The Notice addresses two separate actions Petitioners allege the Department is obligated by law to undertake. The first is the establishment by administrative rule of qualifications that need to be met by mining permit applicants. The second is the issuance - prior to the master hearing - of an independent decision by the Department on the example mines submitted by Nicolet Minerals Company to comply with the requirements of Wis. Stat. § 293.50. Specifically, the Notice alleges this decision must be made "at least one year before the DNR makes a final agency decision on NMC's pending permit application for the proposed Crandon Mine."

I will first address the issue of qualifications of a mining permit applicant. The Notice cites Wis. Stat. § 293.13(I)(b) which requires that minimum qualifications be adopted as administrative rules. As you may know, to a great extent the mining rules, as they currently exist, were adopted in the early 1980's following extensive work by the Department in conjunction with the Metallic Mining Council, which was made up of a variety of people with diverse interests in mining issues. That effort resulted in several provisions in the administrative rules dealing with minimal qualifications of mining permit applicants, most particularly in Wis. Admin. Code §NR 132.06. However, for reasons difficult to retrieve so many years later, the Department and Council did not create a more elaborate set of qualifications for mining permit applicants.

One can speculate as to the reason why the "minimum qualifications" that need to be set out by administrative rule were so spare. There has never been more than one mining permit application before the Department at anyone time, and the project sponsors have always been large companies with significant expertise in mining, perhaps explaining why adoption of a more elaborate set of qualifications never arose as an issue. However, the recent purchase of Nicolet Minerals Company by Northern Wisconsin Resource Group, LLC does suggest that there is a need to establish more explicit qualifications for mining permit applicants. Accordingly, I am directing Department staff to initiate rule making on minimum qualifications to mine in Wisconsin.

This effort requires several steps that are required by law. First the Department must produce and file the statement of scope of a proposed rule according to the requirements of Wis. Stat. § 227.135. We anticipate accomplishing the filing of this statement within the next two weeks. The Department staff must also file this same notice with the Natural Resources Board, inasmuch as that body is the ultimate decision-maker on matters of policy for the Department. That also should be done within two weeks.

Finally, the Metallic Mining Council will need to be re-established, since the terms of the previous Council members have expired due to lack of activity in rule making associated with mining.

The second issue raised in the Notice addresses the timing of decisions needed to comply with the mining moratorium law. Specifically, the question is whether the Department has a non-discretionary legal obligation to render decisions on compliance with Wis. Stat. § 293.50 at some point in time well before the Department makes the mining-related determinations required by Wis. Stats. §§ 293.43 and 293.49.

For both practical and legal reasons, since passage of the mining moratorium law the Department has stated its intent to meld the moratorium decision process into the master hearing process called for by §§ 293.43 and 293.49. At the same time, the Department recognizes that the statutes would permit the agency to render a decision on compliance of example mines with the law in advance of the master hearing.

However, the Department believes, and the Department of Justice concurs, that the law does not impose a non-discretionary responsibility on the department to make a decision in advance of the master hearing.

Rather, the law plainly allows DNR to determine, in its discretion, the timing of the moratorium decision process-as long as the requisite showing of acceptable example mines is made prior to issuance of any permit.

There are sound reasons for addressing the moratorium law requirements at the master hearing, one of which is that under this approach the process need only be gone through once. Since there is nothing in the law that precludes repeat applications by a mining applicant, if one attempt at getting example mines approved fails, another attempt for the same mines (with "new" information) or different mines could soon follow. If the applicant succeeds at obtaining approval of its example mines, there is nothing expressly stated in the law that would preclude opponents from challenging the earlier decision later right up into and through the master hearing-based on allegations of new data or new legal theories, Further, from a practical standpoint, the Department staff won't be prepared much before the master hearing to make its recommendation regarding compliance of the example mines with the conditions of the moratorium law. This is due to a number of reasons. The example mines are and were each subject to significantly different sets of technical and legal requirements. This is partly because each is located within a different governmental jurisdiction, but also because they differ in terms of the times in which they were permitted and the regulatory climate that existed in the various jurisdictions at those times. It takes considerable effort to evaluate compliance of a mining operation in terms of the set of requirements of other jurisdictions.

From a workload management standpoint, because Department staff knew the determination of compliance with the moratorium law was slated to occur at the time of the master hearing there has been a negative incentive to completing the review of the data early in the process. Any work done to evaluate compliance of the example mines with the requirements of the several jurisdictions would need to be redone shortly before the time of decision-making to assure that the most recent data was melded with the older information.

Finally, from the time the example mines were first identified by Nicolet Minerals Company, the Department has consistently invited interested parties to provide information that they may have, but which the Company has not provided and we have not, ourselves, uncovered. We apprised everyone of what the timing would be for our review of information associated with the example mines, and we must assume that this timing can affect when we receive intonation that others perceive to be important. In fact, as recently as April 24, 2003, attorneys for the Forest County Potawatomi Community provided the Department with a significant amount of information that they believe supports an argument that one of the example mines, the Cullaton Lake mine, does not meet the requirements of the moratorium law. The Department intends to look very carefully at this information and do follow-up investigations as needed.

Our reaction will be similar if any other interested parties provide information to us about the example mines

In closing, the Department could modify its present intention to merge the moratorium judgments with the other permitting and approval decisions at the master hearing. Should it decide to make the decision on compliance of the example mines in advance of the master hearing, that change in approach would be well publicized so that all interested entities would be aware of the new decision process.

Sincerely,

Elizabeth Kluesner
Executive Assistant


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June 19, 2003

Contacts:
Glenn Stoddard, Garvey & Stoddard, S.C., 608-256-1003
Dave Blouin, Mining Impact Coalition of WI, 608-233-8455
George Rock, Trout Unlimited-Wolf River Chapter, 715-882-4800
Claire Schmidt, Clean Wisconsin (formerly Wisconsin's Environmental Decade), 608-251-7020 or 608-442-0121
Chuck Sleeter, Town of Nashville, 715-484-8166
Tom Wilson, Northern Thunder, 608-637-3356

Read the legal filing

A coalition of 24 Wisconsin citizens, environmental and conservation organizations, and the Town of Nashville announced today that they filed a complaint and formal notification letter with the Wisconsin Department of Natural Resources (DNR) over the DNR's failure to implement and enforce the state's metallic mining laws and regulations.

The coalition filed a 30-day notice of intent to file a civil lawsuit against the DNR over its failure to develop administrative rules establishing minimum qualifications for mining permit applicants. The complaint and notification letter also alleges that the DNR has failed to determine whether the Nicolet Minerals Company (NMC) has complied with the Mining Moratorium law passed in 1998, with respect to its proposal to develop a metallic sulfide mine in the Wolf River watershed near Crandon, Wisconsin. If the DNR does not respond to the complaint and notification letter within 30 days, a lawsuit may be filed against the DNR by the coalition's members and their attorneys, Garvey & Stoddard, S.C., of Madison, Wisconsin.

In April 2003, NMC was acquired by Northern Wisconsin Resource Group (NWRG), which is owned by the Connor family. The Connor family logging company had sold much of the proposed Crandon mine site land to mining companies during the 1970's.

NWRG has recently attempted to find an experienced mining company to join as a partner in the project. Unable so far to convince another company to join it, NWRG has asked the DNR to agree to "stay" the mining permit review process for the proposed Crandon mine by putting further DNR review of the supporting permit application information on hold for an undetermined amount of time while the company reconsiders its position.

"We expect the DNR to fulfill its duty under the law to establish minimum qualifications for companies that apply for mining permits in Wisconsin, including NMC and NWRG," said Attorney Glenn Stoddard, who represents the coalition, "Our complaint and notification to DNR has been triggered largely because the new owner of the proposed Crandon mine has stated publicly that it is unqualified to operate a mine and has been unable to attract a qualified mining company to join it as a partner."

Stoddard continued, "The fact that we have filed this complaint and notification letter with the DNR doesn't necessarily mean we will sue the state, because it gives the DNR the opportunity to address these important issues by doing its duty under the law to ensure that unqualified applicants cannot obtain mining permits. It also provides the DNR with the opportunity to properly implement the 1998 mining moratorium law, which has been largely ignored by the agency since it was enacted. But if the DNR does not act quickly to address these important concerns in a positive way during the next 30 days, we would then have the right to sue the DNR in state court over these issues."

Tom Wilson, Chairman of the Headwater's Group of Northern Thunder and neighbor to a proposed sulfide metallic mining operation in Jackson County stated, "Communities all across Northern and Western Wisconsin are open to the threat of intimidation and economic blackmail by any one of hundreds of companies who would like to open this region up to exploitation. The DNR should set firm standards for who can undertake such activities and make a timely decision that would fulfill the legislative intent and promise of the Mining Moratorium Law."

"Ensuring that the DNR follows its rules will help ensure that my grandchildren's right to clean water is protected," said George Rock, Trout Unlimited - Wolf River Chapter."an unqualified mine operator in the Wolf River headwaters is a risk I'm unwilling to bear."

"This lawsuit will give our natural resource protectors the tools that they need to protect Wisconsin's northwoods from irresponsible mining," said Claire Schmidt, mining campaign director for Clean Wisconsin (formerly Wisconsin's Environmental Decade). "Mining companies should be aware that they need to have their act together before they contemplate mining in Wisconsin."

"The Mining Moratorium law was designed as a precondition to getting permits to mine in Wisconsin and its compliance should be determined now," said Dave Blouin, coordinator of the Mining Impact Coalition of Wisconsin."Millions of dollars of time and resources have been spent so far to review this controversy. It is a waste of everyone's time and resources to proceed with the mine permit application if NMC cannot meet the requirements of the law."

Zoltan Grossman, of the Wolf Watershed Educational Project, put the lawsuit in the context of Connor's admitted inexperience with mining. "The State would not allow a logging company to operate a nuclear power plant," said Grossman. "Why should it allow an inexperienced company to operate a mine that would use cyanide?" Grossman opposed any DNR acceptance of a permit hold as "unprecedented," and added "The rest of us cannot ask the DNR to put our fishing licenses on hold just because the fish aren't biting."

The coalition of 24 individuals and organizations are referred to in the complaint and notice letter as prospective "Plaintiffs." They include: Paul J. Mongin; George Rock; Chuck Sleeter; Joanne Sleeter; Duane Marshall; Robert VanZile; Jan Olson; Tom Wilson; Anishinaabe Niijii; Brown County Conservation Alliance; Clean Wisconsin; Environmentally Concerned Citizens of the Lakeland Area; Mining Impact Coalition of Wisconsin; Northern Thunder; Protect Our Wolf River; Save Our Unique Lands; Sierra Club - John Muir Chapter; the Town of Nashville; Trout Unlimited's Green Bay and Wolf River Chapters; Wisconsin Resource Protection Council; Mining Committee of the Wisconsin Stewardship Network; Wolf River Watershed Alliance; and Wolf Watershed Educational Project of Midwest Treaty Network.

Wis. Stat. � 293.89 was passed in 1977 and gives citizens the right to commence a civil action to enforce Wisconsin's metallic mining laws under Wis. Stats. Ch. 293. Citizens may commence a civil action against DNR when there is alleged to be a failure of the DNR to perform any act or duty under (Chapter 293) which is not discretionary with the DNR. Citizens may file suit 30 days after filing notice of intent to sue with the DNR.




LEGAL FILING

June 18, 2003
VIA HAND DELIVERY
Mr. Scott Hassett, Secretary
Wisconsin Department of
Natural Resources
101 S. Webster St
Madison, Wisconsin
53707-7921

Re: Notice of Intent to File Citizen Suit under Wis. Stat. � 293.89(1)(b)

Dear Secretary Hassett:

As required by Wis. Stat. � 293.89(2)(b), we are hereby notifying you and the Wisconsin Department of Natural Resources ("DNR") that the prospective Plaintiffs ("Plaintiffs") named below intend to file a citizen suit against the DNR under Wis. Stat. � 293.89. Plaintiffs are represented in this matter by the law firm of Garvey & Stoddard, S.C. Plaintiffs intend to file a citizen suit against the DNR under Wis. Stat. � 293.89(1)(b), setting forth the following allegations, claims, and requested relief:

PLAINTIFFS

        1.    Plaintiffs are individual Wisconsin citizens, citizens's organizations, and the Town Nashville (collectively "laintiffs"). Plaintiffs use and enjoy the environment surrounding the Wolf River watershed and will be adversely affected by the proposed Crandon Mine if it is constructed as proposed by the Nicolet Minerals Company ("NMC") in an application currently under consideration by DNR. Plaintiffs are also interested in the DNR's implementation and enforcement of the mining laws, rules, and regulations of the State of Wisconsin ("State"), as these activities relate to the proposed Crandon Mine and other potential mines at other locations throughout the State.

        2.    Plaintiff, Paul J. Mongin, is an adult citizen who resides at 1151 Delray Drive, Green Bay, WI 54304, and who is a member of the Green Bay chapter of Trout Unlimited. Mr. Mongin pays State taxes, owns property near the Wolf River, and fishes in the Wolf River. Mr. Mongin would be adversely affected if a mining accident occurred at the Crandon Mine site, as his ability to recreate in the area and enjoy his property would be diminished.

        3.    Plaintiff, George Rock, is an adult citizen who resides at N2610 Log Cabin Drive, White Lake, WI 53391. Mr. Rock pays State taxes and fishes in the Wolf River. Mr. Rock would be adversely affected if a mining accident occurred at the Crandon Mine site that adversely affected the water quality of the Wolf River in any way, as his ability to recreate in the area would be diminished.

        4.    Plaintiff, Chuck Sleeter, is an adult citizen who resides at 9347 Pickerel Lake Road, Pickerel, WI 54465. Mr. Sleeter pays State taxes and is the elected Chairman of the Town of Nashville Board. He would be adversely affected by the proposed Crandon Mine, as he lives near the project site and his rights to clean water and air would be directly and adversely affected by the proposed mine. He is also interested in, and affected by, the DNR implementation and enforcement of the State's mining laws, rules, and regulations.

        5.    Plaintiff, Joanne Sleeter, is an adult citizen who resides at 9347 Pickerel Lake Road, Pickerel, WI 54465. Ms. Sleeter pays State taxes and is the elected Clerk of the Town of Nashville Board. She would be adversely affected by the proposed Crandon Mine, as she lives near the project site and her rights to clean water and air would be directly and adversely affected by the proposed mine. She is also interested in, and affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

        6.    Plaintiff, Duane Marshall, is an adult citizen who resides at 8941 Sunset Lane, Pickerel, WI 54465. Mr. Marshall pays State taxes and is an elected Supervisor of the Town of Nashville Board. He would be adversely affected by the proposed Crandon Mine, as he lives near the project site and his rights to clean water and air would be directly and adversely affected by the proposed mine. He is also interested in, and affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

        7.    Plaintiff, Robert VanZile, is an adult citizen who resides at 11138 Ackley Circle, Crandon, WI 54520. Mr. VanZile pays State taxes and is an elected Supervisor of the Town of Nashville Board. He would be adversely affected by the proposed Crandon Mine, as he lives near the project site and his rights to clean water and air would be directly and adversely affected by the proposed mine. He is also interested in, and affected by, the DNR implementation and enforcement of the State's mining laws, rules, and regulations.

        8.    Plaintiff, Jan Olson, is an adult citizen who resides at 9079 Doemel Lane, Pickerel, WI 54465. Ms. Olson pays State taxes and would be adversely affected by the proposed Crandon Mine, as she lives near the project site and her rights to clean water and air would be directly and adversely affected by the proposed mine. She is also interested in, and affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

        9.    Plaintiff, Tom Wilson, is an adult citizen who resides at 707 Railroad Avenue, Viroqua, WI 54665. Mr. Wilson pays State taxes, owns property in Jackson County directly adjacent to land that was leased by Kennecott Minerals for sulfide metallic mine exploration and development, and serves as chair of the Headwaters Group of Northern Thunder, a group opposed to mine siting and destructive mining practices throughout the State. He is interested in, and directly affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

        10.    Plaintiff, Anishinaabe Niijii (Protect the Earth), is a Native and non-Native citizens's environmental and social justice membership organization whose mailing address is P.O. Box 31, Springbrook, Wisconsin 54875. Its Executive Director is Ms. Sandy Lyon, whose address is Box 31, Mackey Valley Road, Springbrook, WI 54875. Its members live on the Mole Lake Sokaogon Chippewa Community reservation, the Lac Courte Oreilles Chippewa reservation, and on the surrounding lands of northern Wisconsin, where there are several known mineral deposits. They oppose development of the proposed Crandon Mine and other metallic sulfide mines in the State because such developments would adversely affect their use and enjoyment of the natural environment, including hunting, fishing, gathering, recreation, and other traditional cultural activities. They are also interested in, and affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

        11.    Plaintiff, Brown County Conservation Alliance ("BCCA"), chaired by Ron Vander Loop, is a coalition of outdoor organizations whose address is 2121 Orrie Lane, Green Bay, WI 54304. The BCCA is actively involved in protecting the environment of Northeast Wisconsin, and one of its primary goals is to clean up the Fox River and Bay of Green Bay. This goal would be hampered by construction of the proposed Crandon Mine and other similar mines. Additionally, members of the BCCA use and enjoy the Wolf River watershed for recreation. Water pollution from a mine in this watershed would adversely affect BCCA members' use of the Wolf River, and would ultimately affect members who live and use other waterways of Northeast Wisconsin.

        12.    Plaintiff, Clean Wisconsin, is a 5,000-plus member environmental organization located at 122 State Street, Suite 200, Madison, WI 53703. (Clean Wisconsin was formerly known as Wisconsin's Environmental Decade, Inc.) Clean Wisconsin has members who live near the Wolf River and whose rights to clean water and air would be directly and adversely affected by the proposed Crandon Mine. Additionally, Clean Wisconsin has many members living in the Green Bay, Wisconsin and Appleton, Wisconsin areas. Their water quality would likely be adversely affected by a mining accident at the proposed Crandon Mine. State-wide, many of Clean Wisconsin's members use the Wolf River as a place for fishing, swimming, and canoeing. Some of its members also depend on the revenue brought to the region by tourists who use the Wolf River for these same activities. The construction of the proposed Crandon Mine at the headwaters of the Wolf River would hinder economic and recreational opportunities for these individuals.

        13.    Plaintiff, Environmentally-Concerned Citizens of the Lakeland Area (ECCOLA), is an environmental membership organization whose mailing address is P.O. Box 537, Minocqua, WI 54548. ECCOLA's, members reside primarily in Northern Wisconsin, where there are several known metallic sulfide mineral deposits. They are therefore generally affected by, and interested in, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations. "ECCOLA" members also use and enjoy the Wolf River watershed for recreation, and they would be directly and adversely affected by the proposed Crandon Mine.

        14.    Plaintiff, Mining Impact Coalition of Wisconsin ("MIC"), is a statewide non-profit organization whose mailing address is P.O. Box 55372, Madison, WI 53705. Its members recreate and earn their livelihood on and near the Wolf River, the proposed Crandon Mine site, and in the surrounding area. Members of MIC oppose development of metallic sulfide mining throughout the State and, particularly, in the Wolf River watershed because such mining threatens their recreation and livelihood. They are also generally interested in, and affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

        15.    Plaintiff, Northern Thunder, is a 35-year old Western Wisconsin-based organization dedicated to working on social and environmental issues. It is located at 316 Eau Claire Street, Eau Claire, WI 54701. Northern Thunder has opposed destructive mining practices in the State since the early days of the Flambeau Mine review process. Since then, it has opposed the development of metallic sulfide mining throughout the State. Northern Thunder's members live in, use, and/or enjoy areas that would be adversely affected by the expansion of metallic sulfide mining throughout the State and region. They are therefore interested in, and affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

        16.    Plaintiff, Protect Our Wolf River ("POWR"), is a conservation organization located at N6725 Balsam Road, Shawano, WI 54166. POWR's members live near and recreate along the Wolf River. POWR's members are opposed to the siting of the proposed Crandon Mine in the Wolf River watershed due to the risks of polluting and harming this pristine water resource. POWR's members would be adversely affected by any environmental damage to the area. They are therefore interested in, and affected by, the DNR's implementation and enforcement of State mining laws, rules, and regulations.

        17.    Plaintiff, Save Our Unique Lands, Inc. ("SOUL"), is a citizens' group whose mailing address is P.O. Box 11, Mosinee, WI 54455. Its members use and enjoy the Wolf River and other rivers in the State and generally oppose development of the proposed Crandon Mine and other metallic sulfide mines in the State. Members of SOUL are therefore generally interested in, and affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

        18.    Plaintiff, John Muir Chapter of the Sierra Club ("Sierra Club"), is the State chapter of America's largest and oldest grassroots, citizen-based environmental organization. It has over 13,000 citizen-members in the State. It is located at 222 South Hamilton St., Suite 1, Madison, WI 53703. Sierra Club members frequently hunt, fish, hike, camp, canoe, kayak and recreate in and near the Wolf River and its headwaters area, which includes the proposed Crandon Mine site. Members of the Sierra Club would be directly and adversely affected by development of the proposed Crandon Mine. The Sierra Club and its members are also generally interested in, and affected by, the DNR's implementation and enforcement of State mining laws, rules, and regulations.

        19.    Plaintiff, Town of Nashville ("Nashville"), is a municipal body whose mailing address is P.O. Box 106, Pickerel, WI 54465. It is located adjacent to the proposed Crandon Mine site. Therefore, Nashville and residents would be adversely affected by any environmental damage caused by the proposed Crandon Mine. Since 1996, Nashville has had a "Local Agreement" with NMC. Nashville's Local Agreement with NMC would be directly affected by any DNR and/or judicial decisions relating to the claims set forth in this complaint. Nashville is also generally interested in, and affected by, the DNR's implementation and enforcement of State mining laws, rules, and regulations.

        20.    Plaintiff, Trout Unlimited's Green Bay Chapter, is a conservation organization located at 1326 14th Ave, Green Bay, WI 54304. Its members fish and otherwise recreate in the Wolf River and its watershed. They would therefore be adversely affected by any environmental damage to the area caused by the proposed Crandon Mine. They are also interested in, and affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

        21.    Plaintiff, Trout Unlimited's Wolf River Chapter, is a conservation organization located at N4297 Buettner Road, White Lake, WI 54491. Several of its members live in Langlade County in the Wolf River Valley, downstream from the proposed Crandon Mine. They would be directly and adversely affected by pollution from the proposed mine. Many of the members of Trout Unlimited's Wolf River Chapter fish in the Wolf River, and would be adversely affected by environmental damage to the river. The members of this organization are also generally interested in, and affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

        22.   Plaintiff, Wisconsin Resource Protection Council ("WRPC"), is a state-wide environmental organization whose address is 210 Avon Street, No. 4, La Crosse, WI 54603. WRPC has numerous members who reside in close proximity to the proposed Crandon Mine. They are concerned about the effects of the proposed mine on the water they use for drinking, fishing, and recreation. Members of WRPC are also concerned about the social and economic effects of the proposed Crandon Mine, including the economic costs of long-term environmental pollution from the proposed mine and its tailings management area. Members of WRPC would be adversely affected by any environmental damage created by the proposed Crandon Mine, and they are generally interested in the DNR's implementation and enforcement of State mining laws, rules, and regulations.

        23.   Plaintiff, Mining Committee of the Wisconsin Stewardship Network ("WSN"), is a priority issue sub-committee of a state-wide network of over 50 member organizations concerned with environmental protection and conservation. It is located at 124 West Wisconsin Ave, Tomahawk, WI 54487. The Mining Committee of WSN has researched and opposed sulfide mining practices since WSN's founding in 1997. Its members represent groups throughout the State whose local environments and economies would be adversely affected by metallic sulfide mines, including the proposed Crandon Mine. In February, 2003, WSN's member organizations voted to make opposition to the proposed Crandon Mine their top priority issue. The members of the Mining Committee of WSN are also generally interested in, and affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

        24.   Plaintiff, Wolf River Watershed Alliance ("WRWA"), is a conservation organization located at 1736 Carrol St., Green Bay, WI 54304. Members of WRWA reside, work, harvest wild rice, and recreate in the Wolf River watershed, including in Rice Lake--which is less than two miles downstream from the proposed Crandon Mine site. Members of WRWA would be directly and adversely affected by environmental damage from sulfide mining at the proposed Crandon Mine and other mineral locations. They are therefore interested in, and affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

        25.   Plaintiff, Wolf Watershed Educational Project ("WWEP"), of the Midwest Treaty Network, is a state-wide community-based alliance of citizens's organizations whose mailing address is P.O. Box 1045, Eau Claire, WI, 54702. Since 1995, WWEP has helped organize citizens, local governments, Indian tribes, conservation and environmental groups, sport fishing groups and others to oppose the proposed Crandon Mine in order to protect the environment. The member citizens and organizations that make up the WWEP reside and/or recreate in the Wolf River watershed. WWEP's members would be adversely affected by the proposed Crandon Mine for environmental, cultural, and economic reasons. WWEP's members are also interested in, and affected by, the DNR's implementation and enforcement of the State's mining laws, rules, and regulations.

BACKGROUND

        26.    In 1973, the Wisconsin Legislature passed an act to regulate metallic mining. L. 1973, c. 318, � 6. That act created a statutory scheme which requires the DNR to create rules setting minimum qualifications for mining and prospecting permit applicants under Wis. Stat. � 293.13(1)(b). While the statute has been subject to minor amendments over the years, it remains substantially the same as it was when enacted in 1973 and currently states, in pertinent part:

    293.13 Department Duties. (1) The department shall:
    . . . .
    (b) Establish by rule after consulting with the metallic mining council minimum qualifications for applicants for prospecting and mining permits. Such minimum qualifications shall ensure that each operator in the state is competent to conduct prospecting in a fashion consistent with the purposes of this chapter. The department shall also consider such other relevant factors bearing upon minimum qualifications, including but not limited to, any past forfeitures of bonds posted pursuant to mining activities in any state.

Wis. Stat. � 293.13(1)(b).

        27.    The DNR has not created qualification rules for mining applicants as required under Wis. Stat. � 293.13(1)(b).

        28.   In 1997, the Wisconsin Legislature passed an act establishing a moratorium on metallic sulfide mining. 1997 Wis. Act 171, � 2. That act created Wis. Stat. � 293.50, which states, in pertinent part:

    293.50 Moratorium on issuance of permits for mining of sulfide ore bodies.
    . . . .

    (2) Beginning on May 7, 1998, the department may not issue a permit under s. 293.49 for the mining of a sulfide ore body until all of the following conditions are satisfied:

            (a) The department determines, based on information provided by an applicant for a permit under s. 293.49 and verified by the department, that a mining operation has operated in a sulfide ore body which, together with the host rock, has a net acid generating potential in the United States or Canada for at least 10 years without the pollution of groundwater or surface water from acid drainage at the tailings site or at the mine site or from the release of heavy metals.

            (b) The department determines, based on information provided by an applicant for a permit under 293.49 and verified by the department, that a mining operation that operated in a sulfide ore body which, together with the host rock, has a net acid generating potential in the United States or Canada has been closed for at least 10 years without the pollution of groundwater or surface water from acid drainage at the tailing site or at the mine site or from the release of heavy metals.
    . . . .

(3) This section applies without regard to the date of submission of the permit application.
Wis. Stat. � 293.50.

        29.    Wis. Stat. � 293.50 makes the DNR's "example mine" evaluation and determination a "recondition" to the issuance of a mining permit by the DNR, and the statute explicitly requires the DNR to verify information submitted by the applicant to determine that the two preconditions have been met. See Wis. Legis. Council Staff Memo, from William Ford, Senior Staff Attorney, to Spencer Black, Assembly Representative (Aug. 25, 1997).

        30.    In 1994, Nicolet Minerals Company, Inc. ("NMC") applied to the Wisconsin and United States governments for permits to construct and operate a mine in Northeastern Wisconsin. Located in Forest County near the City of Crandon, Wisconsin, the proposed "Crandon Mine" site is directly east of the Mole Lake Indian Reservation, and near the headwaters of the Wolf River. The proposed mine is projected to produce 55 million tons of primarily zinc and copper ore, some of which would be extracted through the use of cyanide.

        31.    In 2002, NMC announced it was looking for a buyer of the nearly 5,000-acre Crandon Mine site, and it indicated that it was interested in selling the land and mineral rights to the State or other potential buyers.

        32.    On April 10, 2003, Northern Wisconsin Resource Group, LLC ("NWRG") announced that it had purchased NMC from NMC's Australian-based owner, BHP Billiton. With the purchase of NMC, NWRG also obtained the Crandon Mine site and the mineral rights to develop the mine.

        33.    NWRG is headed by Gordon P. Connor, a Wisconsin businessman whose family has been engaged primarily in the forest products industry. Mr. Connor has publicly stated that he has no mining experience, and has announced that he is seeking investors and partners for the Crandon Mine project.

        34.   In a letter dated May 29, 2003, Mr. Gordon R. Connor (a son of Mr. Gordon P. Connor) sent a letter to Melissa DeVetter, the DNR's Crandon Project Manager, and Robert Whiting of the U.S. Army Corps of Engineers ("ACE"). In this letter, Mr. Connor requested that the DNR and ACE each place a "stay" on further action by their respective agencies with respect to review of NMC's mining permit applications for the proposed Crandon Mine. Mr. Connor did not indicate how long he wanted the "stay" to be in effect, but stated that it was needed so that NWRG could "conduct its internal review of the project and consult with other parties, as appropriate." The letter was sent to the agencies on NMC letterhead and signed by Mr. Connor as Project Manager.

        35.   The Crandon Mine permitting process has been on-going at the State and federal levels since NMC's (then known as the Crandon Mine Company or "CMC") mining permit application was submitted to the DNR in 1994. On January 5, 1999, NMC submitted information for three "example mines," intended to satisfy Wis. Stat. � 293.50. To date, the DNR has not made a formal decision on this information.

        36.   Wis. Stat. � 293.89 was passed in 1977 and gives citizens the right to commence a civil action to enforce Wis. Stats. Ch. 293. L. 1977, c. 421, s. 53. It states, in pertinent part:

    293.89 Citizen Suits. (1) Except as provided in sub. (2), any citizen may commence a civil action on his or her own behalf:
    . . . .

            (b) Against the department [of Natural Resources] where there is alleged to be a failure of the department to perform any act or duty under [Chapter 293] which is not discretionary with the department.
    (2) No action may be commenced
    . . . .

            (b) Under sub. (1)(b) prior to the 30 days after the plaintiff has given notice of such action to the department.

    (3) The court, in issuing any final order in any action brought under this section, shall award costs of litigation including reasonable attorney and expert witness fees to the plaintiff if he or she prevails, and the court may do so if it determines that the outcome of the controversy is consistent with the relief sought by the plaintiff irrespective of the formal disposition of the civil action.
Wis. Stat. � 293.89.

FIRST CLAIM

DNR HAS FAILED TO FULFILL ITS NON-DISCRETIONARY
DUTY UNDER WIS. STAT. � 293.13(1)(b) TO MAKE RULES ESTABLISHING
MINING APPLICANT QUALIFICATIONS

        37.    Plaintiffs reallege and incorporate herein each preceding paragraph of this complaint.

        38.    The DNR has a non-discretionary duty under Wis. Stat. � 293.13 to make rules regarding mining permit applicants' qualifications. This duty is indicated by the term "shall" in the first line of the statute, particularly when compared with the permissive "may" located in the following section, 293.15, discussing the DNR's powers.

        39.    The DNR has not made the required rules regarding qualifications of mining permit applicants under Wis. Stat. � 293.13. Nowhere in the Wisconsin Administrative Code do such rules exist, including in Chapter NR 132, titled "Metallic Mineral Mining.

        40.   The DNR has breached its non-discretionary duty to make rules regarding qualifications of mining permit applicants.

        41.   Plaintiffs have been injured by the DNR's failure to make rules regarding qualifications of mining permit applicants because Plaintiffs are interested in, and affected by, the DNR's implementation and enforcement of the State;s mining laws, rules, and regulations, particularly with respect to the proposed Crandon Mine and other potential metallic sulfide mining operations in the State. Such rules would be an important factor in the Crandon Mine permitting process as the current owner-applicant admittedly lacks the basic qualifications and experience necessary to develop and to operate a large new metallic sulfide mine in an environmentally safe and responsible manner. Further, such rules are necessary to address issues raised by NWRG/NMC's requested "stay" of the permit application review process for the proposed Crandon Mine. Finally, such rules are necessary to regulate other potential mining permit applicants who may not be qualified to actually operate a metallic sulfide mine at another location within the State.

SECOND CLAIM

DNR HAS FAILED TO FULFILL ITS NON-DISCRETIONARY
DUTY UNDER WIS. STAT. � 293.50 TO EVALUATE AND MAKE
A DETERMINATION ON NMC's EXAMPLE MINE INFORMATION

        42.   Plaintiffs reallege and incorporate herein by reference each preceding paragraph of this complaint.

        43.   The DNR has a non-discretionary duty under Wis. Stat. � 293.50 to review and make a determination on a mining permit applicant's "example mine" information. This duty is indicated in the "may not" and "until" language contained in sub. (2) of � 293.50. Further, the DNR has a non-discretionary duty under � 293.50 to review this information in a separate decision process which takes place prior to and apart from its decision-making process on the mining permit application itself specified in Wis. Stat. � 293.49 (assessing the mining and reclamation plan, ability of the mine to comply with applicable laws, economic impact, etc.). Wis. Stat. � 293.50(3) specifically states that the mining moratorium statute "applies without regard to the date of submission of the permit application," and the plain language and legislative history of this section shows that a mining permit applicant's successful fulfillment of "example mine" information is a "recondition" to the applicant receiving a mining permit from DNR. Thus, since Wis. Stat. � 293.50(3) was enacted, the "example mine" information evaluation and final decision-making by the DNR has been a threshold matter which must be conducted and concluded prior to further evaluation and decision-making on a mining permit application.

        44.   While the DNR's current permit application review process for the proposed Crandon Mine under � 293.49 has been on-going since 1994, and the DNR has had NMC's "example mine information" since 1999, the DNR has not made any formal decision concerning this information as required under Wis. Stat. � 293.50(2).

        45.   The DNR has breached its non-discretionary duty to evaluate and make a final decision on NMC's example mine information as required under Wis. Stat. � 293.50(2).

        46.   Plaintiffs have been injured by the DNR's failure to evaluate and make a determination on the NMC's example mine information. They will be adversely affected by the proposed Crandon Mine if built, as described above, and by the permitting process for the proposed mine. Plaintiffs have invested a substantial amount of time and money in following and participating in the permitting process, investments which could have been avoided if the DNR had evaluated and made a decision on NMC's example mine information when it was produced by NMC shortly after Wis. Stat. � 293.50 was enacted. Plaintiffs are also, as State citizens and taxpayers, adversely affected by the substantial and unnecessary use of State employees's time and of State financial resources that have been, and are being, devoted to the DNR's ongoing review of NMC's mining permit application for the proposed Crandon Mine.

        47.   Plaintiffs are entitled to a separate final decision by the DNR on NMC's example mine information, under Wis. Stat. � 293.50(2), because this decision is a threshold matter which may be subject to judicial review under Wis. Stat. � 227.52 prior to any decision by the DNR on NMC's mining permit application.

WHEREFORE, Plaintiffs intend to request the Dane County Circuit Court to order the following relief:

        1)   That the DNR establish mining permit applicant qualification rules under Wis. Stat. � 293.13(1)(b), including strict conditions regarding when a mining permit applicant can qualify for a stay, a 30 day limitation on such a stay, and other appropriate qualification standards for mining permit applicants;

        2)   That the DNR be enjoined from making a final decision on NMC's pending Crandon Mine permit application until the DNR establishes mining permit applicant qualification rules under Wis. Stat. � 293.13(1)(b);

        3)   That the DNR evaluate and make a final decision on NMC's example mine information for the proposed Crandon Mine, under Wis. Stat. � 293.50(2), as a separate and final agency decision at least one year before the DNR makes a final agency decision on NMC's pending permit application for the proposed Crandon Mine;

        4)   That the DNR pay Plaintiffs' costs of litigation in this action, including reasonable attorney and expert witness fees, as applicable; and

        5)   Such other relief as the Court deems just and appropriate under the circumstances.
Dated this 18th day of June, 2003.
Respectfully submitted,

GARVEY & STODDARD, S.C.
Attorneys for Plaintiffs
____________________________
Glenn M. Stoddard
State Bar No. 1020964
Christa Westerberg
State Bar No. 1040530
Mailing Address:
634 W. Main Street
Suite 101
Madison, WI 53703
Tel: (608) 256-1003
Fax: (608) 256-0933
Cc:    Nicolet Minerals Company (via Certified Mail)

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