| Crandon Mine threatens Chippewa wild
State challenge to tribe's authority rejected, June 4, 2002
Decision puts water quality in tribe's hands, June 3, 2002
Mole Lake wins final victory in federal clean water case , June 2002
U.S. Backs Tribal Environmental Rights, May 15, 2002
Wisconsin wants tribal water ruling reconsidered , Nov. 6, 2001
State appeals ruling giving tribe authority to regulate water quality on reservation, Nov. 6, 2001
Mole Lake water standards, Sept. 25, 2001
Tribe hails ruling in dispute against proposed Crandon mine.
http://www.jsonline.com/news/state/sep01/mine25092401a.asp , Sept. 24, 2001
State challenge to tribal authority rejected, Sept. 24, 2001
Appellate Court upholds Mole Lake water standards, Sept. 21, 2001
State Appeals Ruling on Tribal Water Rights, July 18, 1999
Court Upholds Tribal Water Quality Standards, Spring 1999
State challenge to tribe's authority rejected
June 4, 2002
The state of Wisconsin's long-running battle against tribal sovereignty hit a roadblock on Monday thanks to the Supreme Court.
Without comment, the Justices rejected an appeal of a ruling which upheld an Ojibwe tribe's right to regulate water quality on its reservation. The move lets stand a Clinton-era "treatment as state" (TAS) designation for the Sokaogon Band of northern Wisconsin.
The state challenged the status as a "dramatic expansion" of inherent tribal sovereignty. But by turning down the case, the Court refused to invalidate the Sokaogon's powers over the 1,850-acre Mole Lake reservation.
The status is largely fact-specific, with the Environmental Protection Agency over the course of the several-year dispute laying out a solid basis for the TAS designation under the Clean Water Act. Bush administration attorneys supported the tribe's right to control its water resources, which include a lake used for subsistence and cultural purposes.
The case nonetheless represents a victory for the tribe and its supporters, who oppose plans for a huge 55 million-ton zinc-copper sulfide mine. To be located upstream from the reservation, the operation is supported by the state.
The TAS designation, in theory, allows the Sokaogon Band to implement strict water standards that could restrict the development The Supreme Court, in a case involving a New Mexico tribe, upheld the reaches of such regulations even off-reservation.
In upholding the tribe's authority, the 7th Circuit Court of Appeals noted much the same. "Once a tribe is given TAS status, it has the power to require upstream off- reservation dischargers, conducting activities that may be economically valuable to the state (e.g., zinc and copper mining), to make sure that their activities do not result in contamination of the downstream on-reservation waters," wrote Circuit Judge Diane P. Wood for the majority.
In addition to the Sokaogon Band, area tribes also oppose the project. The Forest County Potawatomi Tribe, the Menominee Nation and the Red Cliff Ojibwe Band have jointed a broad coalition of municipalities and environmentalists against the cyanide mining practices of the industry.
The groups contend the use of cyanide will pollute the water supply, a charge disputed by Nicolet Minerals, the company behind the proposal. Nicolet has repeatedly said its mine will not harm sacred sites, cultural resources or harm the environment.
Up to 200 tons of the chemical could be used at the mine each year. A bill to ban cyanide mining has stalled in the state Legislature.
Sokaogon Chairwoman Sandra L. Rachal was traveling yesterday and could not be reached for comment.
Decision puts water quality in tribe's hands
Sokaogon can set standard near mine
By LEE BERGQUIST
Journal Sentinel staff
June 3, 2002
The Sokaogon Chippewa have the right to regulate water quality on their reservation in northern Wisconsin - a decision that could affect the proposed Crandon mine and spur other tribes to take over regulation of their waterways.
The U.S. Supreme Court let stand on Monday a lower court decision that gave the Sokaogon, or Mole Lake, the power to set water quality standards that are higher than those now promulgated by the state Department of Natural Resources.
Those standards mean that Nicolet Minerals Co. would have to return water from its proposed zinc and copper mine in Forest County at the same pristine quality as before it came into contact with the mine.
Dale Alberts, president of Nicolet Minerals, said Monday the company could comply with stricter limits.
Perhaps more significantly, the decision is likely to open the door for other tribes to seek authority to regulate pollution on lakes, rivers and streams on their reservations - rather than rely on the DNR.
"We suspect that other tribes will be interested in this," said Mike Lutz, a DNR lawyer.
Indeed, an official of the nearby Menominee tribe said it will ask for the same authority as the Sokaogon because tribal members believe they can police their water better than the DNR.
"Currently the State of Wisconsin and the DNR have a different agenda than we do," said Ken Fish, director of the Menominee treaty rights and mining impact office.
State water quality regulations allow for bodies of water to absorb some commerce-created pollution because the pollution will dissipate over time, Lutz said.
But Fish said that while economic development is important to his tribe, clean water is more important.
"If our ancestors were willing to lay down their lives for this territory, certainly we can sacrifice the money, time and efforts for those who will live here in future generations," Fish said.
Mining company confident
Regardless of the standard, Alberts said the company believes it can extract 55 million tons of zinc and copper, and smaller amounts of lead, silver and gold, without harming surrounding groundwater.
"We stayed out of that fight," Alberts said. "We decided that we could comply with their non-degradation standard, and we intend to do so."
The mine would be five miles south of the Crandon and two miles east of Highway 55. Located on about 550 acres, the ore body is about 4,900 feet long and about 100 feet wide. The mine would start about 200 feet below the surface and would extend to about 2,200 feet below the surface.
The Crandon ore body was discovered in 1975. Alberts said that while it has faced long-standing opposition, the company wants to mine it because the zinc there is one of the largest undeveloped sources in North America, and it lies within 500 miles of 64% of zinc consumption in the country.
Water quality plays a role in the mining process because groundwater seeps into the mine tunnels. Some of the water is pumped out, and some is used during the mining process. All of the groundwater has to be treated before being returned to the aquifer.
The Sokaogon live next the proposed facility and are concerned about how the mine will affect the groundwater, as well as nearby Swamp Creek and Rice Lake, which is fed by the stream. The Sokaogon harvest wild rice from the lake - and consider the annual harvest as highly important to their culture.
"We mainly harvest it for ceremonies," said Tina Van Zile, the Sokaogon's vice chairwoman. "It's a very sensitive plant. If the water level dropped a foot, we could lose a crop that year."
Decision in 2004
The DNR said a decision on whether the plant can proceed will probably not take place until 2004. The agency must still complete an environmental review before the decision goes to an administrative law judge.
There also have been numerous legislative fights related to the mine. Most recently, opponents sought legislation this year that would ban the use of cyanide in mining. Cyanide is one of the chemicals used in the mining process.
The court case pitted the Sokaogon and the U.S. Environmental Protection Agency against the DNR.
The EPA argued that Congress authorized the EPA to treat the American Indian tribes the same way as states. But the DNR said it had authority over water resources within the state. The agency also said it had higher standing because Wisconsin achieved statehood before the Sokaogon were ceded land for a reservation.
But a federal appeals court panel said that the Sokaogon band was a community and American Indian culture relies heavily on water resources. Further, the court said that the ore body's 1,850 acres are all owned by American Indians.
The Menominee, Oneida and the Lac du Flambeau tribes had previously sought to have authority over water quality matters, but backed out after an EPA attorney was charged and later convicted of faking documents to buttress the EPA's case.
Mole Lake wins final victory in federal clean water case
Tribal authority challenged denied
June 4, 2002
The Supreme Court today refused to invalidate a Wisconsin tribe's power to regulate water on its reservation.
The decision lets stand a federal appeals court decision which upheld the "treatment as state" designation for the Sokaogon Band of Ojibwe. The Environmental Protection Agency granted the status under the Clean Water Act to allow the tribe to define its own water quality standards.
The state was opposing the designation, saying it was a "dramatic expansion" of the tribe's inherent rights.
The state also has an interest in a mine operation located upstream from the reservation which the tribe might now be able to scuttle with strict regulations.
Ask Doyle to Drop U.S. Supreme Court Case
State Attorney General Jim Doyle is running for Wisconsin governor.
With one hand, he recently supported two legislative bills to reform
state mining laws. Yet with the other hand, he is suing the Mole Lake
Chippewa Tribe for using the federal Clean Water Act to protect its
wild rice beds from the proposed Crandon mine. Doyle has it within his
power to drop the lawsuit against Mole Lake's "Treatment-As-State" (TAS)
status within the EPA, and help the effort to stop the proposed Crandon
mine. Yet instead, he has chosen to appeal the case to the U.S. Supreme
Court. Even the Bush Administration has now sided with the tribe against
Wisconsin's "poor" legal challenge.
Please write the Doyle for Governor Campaign, to ask that the candidate put his actions where his words are, and drop Wisconsin v. EPA. We don't want our state taxes being used to fight a hopeless legal battle against a tiny Native community trying to protect its water and its culture. Please write or call the campaign, bring it up in debates and interviews, and ask other candidates to point out Doyle's contradictory behavior.
U.S. Backs Tribal Environmental Rights
Last year, New Mexico, South Dakota, Michigan and Nevada asked the Supreme Court to invalidate tribal regulations implemented under the Clean Air Act. The case was refused in March 2001.
Wisconsin wants tribal water ruling reconsidered
Tues., Nov. 6 2001
Having lost the latest round in a long battle against tribal sovereignty, the state of Wisconsin is asking a federal appeals court for a second chance to prove the Sokaogon Band of Ojibwe shouldn't control the quality of water on the Mole Lake Reservation.
In September, the 7th Circuit Court of Appeals upheld the tribe's right to enact tough water standards, even if they affect non-Indians elsewhere. By unanimous decision, a three-judge panel of the court said the tribe "demonstrated that its water resources are essential to its survival" and should be allowed to develop its own programs.
But the state on Friday asked the full panel of the court to hear the case all over again. If the court agrees, Wisconsin will get another chance to convince 11 judges it is sole authority.
The dispute centers on a still controversial set of regulations implemented during the Clinton administration. Under the Clean Air Act and the Clean Water Act, the Environmental Protection Agency is allowed to treat tribes as states.
The designation recognizes a tribe's authority to enact environmental standards that have an impact beyond reservation borders. For this reason, a number of states and industry -- whom EPA officials call "the usual suspects" -- have challenged the treatment as states, or TAS, program.
in the case at hand, a mining company's plans for a 55 million-ton zinc-copper sulfide mine would be limited by the TAS designation for the Sokaogon Band of Lake Superior Ojibwe. The mine would be located about a mile upstream from the reservation and the tribe's water standards could be so high as to make the project unfeasible for both the company and the state, which stands to benefit financially.
The mine has drawn the opposition of tribal officials, members and environmentalists. In particular, tribal members who depend on Rice Lake for food, water, medicine and other subsistence purposes say the project would devastate their traditional lifestyle.
The tribe's reliance on the lake helped convince the 7th Circuit of the necessity of the TAS designation. Additionally, the court considered that all 1,850 acres of the reservation are tribally-owned.
Since the ruling was unanimous, there isn't any indication that the state would succeed the second time around. But that hasn't stopped states throughout the country from continuing to challenge tribal authority.
Earlier this year, New Mexico, South Dakota, Michigan and Nevada asked the Supreme Court to invalidate clean air regulations affecting Indian Country. The Supreme Court declined to hear the case in March.
New Mexico previously took its water dispute with Isleta Pueblo to the Supreme Court and lost. Wisconsin has been more successful -- the threat of litigation forced the withdrawal of TAS designations for three tribes.
If the full panel of the 7th Circuit agrees to rehear the case, it take up to another year for a decision to be handed down. Barring a reconsideration, the state could also seek Supreme Court review.
Get the Case:
State appeals ruling giving tribe authority to regulate water quality on reservation
November 6, 2001
By Robert Imrie/Associated Press
WAUSAU, Wis. -- The state is appealing a federal court ruling that grants a northern Wisconsin American Indian tribe full authority to regulate water quality on its reservation downstream from a proposed underground zinc and copper mine.
"The state feels this is an issue of sovereignty," Randy Romanski, a state Department of Justice spokesman, said Monday. "The state should not give up its right to protect its waters."
The 7th Circuit Court of Appeals in Chicago had ruled the U.S. Environmental Protection Agency can allow the Sokaogon band of Lake Superior Chippewa to regulate waters on its reservation. The three-judge panel said tribal members showed the waters were essential to their survival.
The state had argued only Wisconsin officials can regulate water quality because the state owns streams and lakebeds.
In its appeal filed Friday, the state asked the appeals court to reconsider its ruling and have all 11 judges decide the case, Romanski said. A decision on whether to take up the appeal could come within a month.
The tribe argues any upstream activity, including the mine proposed by Nicolet Minerals Co. near Crandon, could change the water quality on tribal lands. A message left by The Associated Press at the tribe's Crandon office was not immediately returned Monday.
Nicolet Minerals, a subsidiary of Australia-based BHP Ltd., is seeking state, federal and local permits to mine 55 million tons of zinc and copper ore.
Company spokesman Dale Alberts said Monday the company has been designing the mine with the tribe's higher water-quality standards in mind since 1995.
"We believe we can and will comply with the Sokaogon standards," he said. "We have to make sure we don't impact their water quality. Our scientific analysis demonstrates clearly we can do that so that they have no change to their water quality."
Opponents of the mine argue toxic chemicals from the mine will damage the environment, especially Swamp Creek and Rice Lake, which waters the tribe's wild rice beds. Swamp Creek runs through the mine's property before reaching the reservation.
Mine supporters say it can operate without harming the environment and will create much-needed jobs.
The state Department of Natural Resources is expected to release its recommendations on the project by next spring, Alberts said.
Mole Lake water standards
Milwaukee Journal Sentinel
Sept. 25, 2001
A northern Wisconsin American Indian tribe has full authority to regulate the water quality on its reservation downstream from a proposed zinc and copper mine, a federal court ruled.
The ruling by the 7th Circuit Court of Appeals in Chicago could put another obstacle in the path of the proposed mine south of Crandon.
The court ruled Friday the U.S. Environmental Protection Agency can allow the Sokaogon Chippewa band to regulate waters on its reservation because tribal members have shown the waters are essential to their survival.
"This decision means that this ecosystem, which has sustained the tribe for all these centuries, will survive," the tribe's attorney, Glenn Reynolds of Madison, told the Milwaukee Journal Sentinel. "Any upstream activity cannot produce change of water quality on tribal lands.
"Nicolet Minerals Co. wants to open the zinc and copper mine in Forest County. Company spokesman Dale Alberts said the company understood the tribe's high water-quality standards before acquiring mining rights from Exxon in 1998.
"They have their standards and we're going to meet them," Alberts said.
The tribe's tough rules could strain Nicolet's resources, said Tina Van Zile, tribal vice chairwoman.
"All we want to do is protect what we have," Van Zile said. "Our resources are everything to us. We're taught to respect them and we want them to be there for our generations to come."
Nicolet Minerals is a subsidiary of BHP Ltd., headquartered in Australia. The company wants state, federal and local permits to mine 55 million tons of zinc and copper ore.
Opponents of the mine argue toxic chemicals from it will damage the environment, especially Swamp Creek and Rice Lake, which waters the tribe's wild rice beds.
Those who support the mine say it can operate responsibly and will create much-needed jobs.
The court rejected the state's appeal that argued only Wisconsin officials can regulate water quality because the state owns streams and lakebeds.
The court said the EPA has the power to regard Indian tribes as states under the Clean Water Act.
The EPA, not the state or the tribe, can issue permits for the mine, the court said. The state will decide whether to appeal by Oct. 5
State challenge to tribal authority rejected
September 24, 2001
Upholding a set of regulations implemented by the Clinton administration, a federal appeals court on Friday rejected the state of Wisconsin's challenge to the Sokaogon Ojibwe Tribe's authority over water within the Mole Lake Reservation.
The Environmental Protection Agency was justified to treat the tribe as a state under the Clean Water Act, said a three-member panel of the 7th Circuit Court of Appeals. Affirming a lower court decision, the judges said the tribe can control water quality on the reservation even if it impact the activities of non-Indians elsewhere.
"Because the Band has demonstrated that its water resources are essential to its survival, it was reasonable for the EPA," wrote Judge Diane P. Wood for the majority, "to allow the tribe to regulate water quality on the reservation, even though that power entails some authority over off-reservation activities."
Wisconsin's challenge is one of several cases that have tested the EPA's "treatment as states," or TAS, program. The program allows tribes, like states, to regulate air and water quality within Indian Country.
But since the authority can involve regulating upstream or downstream rivers -- in the case of the Clean Water Act -- non-Indians are often affected. Understanding the limitations of tribal sovereignty, the Clinton administration implemented regulations which take non-Indian impact into consideration.
Among the factors are non-Indian ownership within a reservation. In the case of the Sokaogon, all 1,850 acres of the Mole Lake Reservation are held in trust for the tribe, one factor which persuaded the court to conclude the EPA was correct in its TAS designation.
Also affecting the court's decision was the impact of water quality on tribal health and welfare. The tribe "is heavily reliant on the availability of the water resources within the reservation for food, fresh water, medicines, and raw materials," said the court, writing that Rice Lake provides a traditional source of wild rice for tribal members.
Notably, the lake is downstream from the Wolf River, where Wisconsin officials want to build a zinc-copper sulfide mine. Citing threats to Rice Lake, tribal officials and indigenous activists have opposed the mine, which would be located approximately one mile away from the reservation.
Despite the victory for the tribe, the case is -- as the court said -- fact specific. Each TAS determination is made on a case-by-case basis and in some states, the EPA has withdrawn a designation due to a local challenge.
The court also wrote it was "inevitable" that states would continue to challenge the regulations and any designations. EPA officials have agreed, saying there was a list of "usual suspects" among those who have fought the program.
Earlier this year, New Mexico, South Dakota, Michigan and Nevada asked the Supreme Court to invalidate similar regulations implemented under the Clean Air Act. The Supreme Court declined to hear the case in March.
May 12, 1999
Subject: Mole Lake Treatment as a State Decision
Dear Attorney General Doyle:
Pursuant to s. 165.25, Stats., the Department of Natural Resources requests the continued assistance of your office in the matter of the delegation of treatment as a State (TAS) authority to the Sokaogon Chippewa community (the Mole Lake Band) by the Environmental Protection Agency. As you know, in a decision issued on April 28, 1999, Judge Clevert upheld EPA's delegation of TAS authority to the Band. It remains our view that the Mole Lake Band was unable to make the requisite showing of jurisdiction over the waters on the Reservation. Our view is that under the Equal Footing Doctrine, the State of Wisconsin received sovereignty over all navigable water in the State upon achieving statehood, and that this sovereignty could be neither taken away nor transferred to the Tribe upon the creation of the Mole Lake Reservation in 1937.
We are especially frustrated by the District Court's failure to address, in any meaningful way, the State's public trust/equal footing arguments. We do not believe that it was appropriate to ignore the State's well-reasoned position simply by showing deference to EPA's interpretation of Federal Indian law. This is hardly within the traditional expertise of the Environmental Protection Agency.
For the reasons state above, we request that you appeal this case to the Seventh Circuit Court of Appeals. Attorney Michael A. Lutz will remain as the Department liaison in this matter.
George E. Meyer, Secretary
Appellate Court upholds Mole Lake water standards
September 21, 2001
The U.S. Seventh Circuit Appellate Court has turned down Wisconsin's appeal to overturn the Mole Lake Sokaogon Chippewa Community's enhanced water quality standards. In 1995, the EPA granted the tribe "Treatment-As-State" (TAS) status under the federal Clean Water Act, in a decision challenged by State Attorney General James Doyle.
In its ruling, the Court stated, "This grant of TAS status alarmed the State of Wisconsin, which saw it as both an affront to the state's sovereignty and, more pragmatically, as an action with the potential to throw a wrench into the state's planned construction of a huge zinc-copper sulfide mine on the Wolf River, upstream from Rice Lake. Concerned about its loss of authority over certain territory within its outer boundaries and worried that the tribal water standards might limit the activities of the mine by prohibiting some or all of the discharge from the mine, Wisconsin filed this action...."
In the United States Court of Appeals For the Seventh
July 18, 1999
By Susan Campbell
Green Bay Press Gazette
The state is appealing a federal judge's decision to uphold a northern Wisconsin Indian tribe's right to establish water-quality standards for its reservation near the proposed Crandon mine.
Jim Haney, spokesman for the state Attorney General's Office, said the offices has filed a notice of its intent to appeal the May decision regarding the Mole Lake Chippewa tribe.
That decision, issued by U.S. District Court Judge Charles Clevert of Milwaukee, dismissed a state challenge to the U.S. Environmental Protection Agency's authority to grant "treatment as state" status allowing the tribe to set its own water quality standards.
"We had indicated shortly after the district court's decision in Milwaukee that we believed the case needed to be appealed, in large part, because the judge had not resolved the crucial issues as far as the state of Wisconsin is concerned - and that is, whose waters are these?" Haney said.
Linda Sturnot, vice president of the Mining Impact Coalition of Wisconsin, said the Department of Natural Resources' recommendation that the state appeal the decision shows the agency's bias in favor of the proposed Crandon mine. Sturnot said in a statement that DNR Secretary George Meyer's request to appeal the decision 'leads Wisconsin citizens to believe the DNR's role in the Crandon mine environmental impact statement and mine permitting process is not without bias or a conflict of interest." The coalition has said the Tribe's water-quality regulations, if they stand, could make it harder for the proposed mine to comply with state environmental regulations.
Included in those standards is designation of Swamp Creek, which flows through the reservation and within a mile of the tribe's ancient wild rice beds in Rice Lake, as an "Outstanding Natural Resource Water." The designation carries with it a non-degradation standard.
Meyer said his recommendation to appeal the federal judge's decision "has nothing to do with the Crandon mine" - and noted the state has litigated the same point with three other tribes, two of which have no relation to the mine. "There's a very strong disagreement with the tribes in regard to issues over who has jurisdiction over public waterways in the state," he said. Meyer said that in the event the tribe's water quality standards are overturned, he has told the tribe he would recommend to the state's Natural Resource Board that Rice Lake and its tributaries be designated 'Outstanding Resource Waters'. "This is not a disagreement over the need to afford the highest standard of protection for those bodies of water," he said.
Although an environmental review is still under way, Meyer said it doesn't appear that the mine would contaminate the tribal waters because of the project's design. Nicolet Minerals Co., a subsidiary of Toronto-based Rio Algom Ltd., seeks state permits to remove 55 million tons of zinc and copper from the mine site. Meyer said the state's draft EIS for the project will be completed by August 2000.
Court Upholds Tribal Water Quality Standards -
and Environmental Protection Agency
Crandon, Wisconsin. In an April 28 decision, the U.S. District Court dismissed a lawsuit by the State of Wisconsin against the U.S. Environmental Protection Agency (EPA) and the Mole Lake (Sokaogon) Chippewa. The suit was an attempt to deny EPA's authority to grant "Treatment as State" (TAS) status to Mole Lake Reservation. The EPA originally granted TAS status to Mole Lake in 1995, to support Mole Lake's sovereign authority to set its own water quality standards under the federal Clean Water Act.
The decision reaffirming the TAS status has far-reaching implications not just for the Mole Lake Chippewa, but for the controversial proposed Crandon mine, and potentially for other Native American reservations around the country.
The State of Wisconsin disputed Mole Lake's authority, claiming that all navigable waters within Wisconsin could only be regulated by the state. Yet the EPA, under the federal Clean Water Act, allows for Indian tribes to be treated as states to regulate and manage their own resources. State Attorney General James E. Doyle challenged the federal law by suing both the EPA and Mole Lake. A citizens' petition recently asked Doyle to drop the suit; it was signed by 26 Wisconsin environmental groups, by two neighboring townships, and by 454 individuals from 121 communities around the state. (The letter is below.)
The District Court resoundingly rejected the state's logic and dismissed the suit. Part of the state's underlying argument had been that tribal governments in general have neither the technical capacity nor the commitment to environmental protection, and so the EPA should not treat them like states. Yet the federal court decision praised Mole Lake's technical effort in setting its water quality standards, and stated that the tribe has stronger environmental protection regulations than those contained in Wisconsin's environmental statutes.
Roger McGeshick, Jr., Chairman of the Mole Lake Sokaogon Chippewa Community, said, "I believe this decision is going to benefit our community and the tribes throughout the U.S.. In the past, history has proven the tribes have been taken advantage of and the outcome of this lawsuit has given our people more strength. Our Water Quality Standards will never be negotiated!"
Tina L. Van Zile, a Mole Lake Sokaogon Chippewa Tribal Council member, stated, "Within 90 days from when EPA approved our water standards, the state filed the lawsuit. We've been in court for three years; the decision has brought some relief, although we know this is not going to be the end. In the future, we'll be strengthening our water quality standards even more."
Mole Lake immediately wrote Attorney General James Doyle and asked him to not appeal the decision made by U.S. District Judge Charles N. Clevert. Glenn Stoddard, Attorney for the Sokaogon Chippewa, said, "This is a very good decision for the Sokaogon Chippewa and for the environment in the area that would be affected by the proposed Crandon Mine. We have encouraged Attorney General Doyle to not appeal the decision and to respect the tribe's strong and legitimate interest in protecting its very important natural resources, including its historic rice beds. We hope Attorney General Doyle will make the right decision and begin to work with the tribe rather than against the tribe. But this issue goes beyond even the State vs. the Sokaogon Chippewa because it is directly related to the proposed mine and its effect on the Wolf River and Wisconsin's environment."
Zoltan Grossman of the Midwest Treaty Network said, "Tribal environmental powers based on federally backed Native sovereignty can help protect the environment for Indians and non-Indians alike. Many residents of northeastern Wisconsin are trusting Native sovereignty to protect their environmental and economic interests more than the sovereignty of a pro-mining state government."
Grossman added, "As in the recent Supreme Court decision in the Mille Lacs treaty rights case, the District Court decision in the Mole Lake case seriously undercut the 'equal footing doctrine' that states have tried to use to prioritize States' Rights over federally backed tribal sovereignty. The courts are clearly affirming the nation-to-nation relationship that is the bedrock of U.S. Indian policy."
Tim Tynan of the Mining Impact Coalition in Madison said, "Wisconsin's current water quality and enforcement standards are insufficient and will not adequately protect the reservation's ancient wild rice beds from the threats of metallic sulfide mining upstream. Rice Lake, an enormous wild rice bed situated within their reservation boundaries, lies a few thousand feet downstream from the proposed Crandon mine."
Although the Crandon mine is not directly mentioned in the legal decision, the proposed mine must now comply with Mole Lake's regulatory authority.
"We are also pleased with this decision," said Dave Blouin, Sierra Club spokesman, "The Sierra Club supports Mole Lake's right and authority to protect its people and resources from unsafe metallic sulfide mining. We ask Wisconsin citizens to call on Attorney General Doyle not to appeal the decision and to stop wasting taxpayers' dollars on frivolous lawsuits on behalf of mining companies such as Rio Algom."
The case is: State of Wisconsin v. United States Environmental Protection Agency and Carol Browner and Sokaogon Chippewa Community, the United States District Court, Eastern District Court of Wisconsin; Case No. 96-C-90.
Dave Anderson (715) 478-5179 email@example.com
Timothy Tynan (608) 245-1525 / (608) 246-3340 x.13 firstname.lastname@example.org
Zoltán Grossman (608) 246-2256 email@example.com
Dave Blouin (608) 233-8455 firstname.lastname@example.org
Al Gedicks (608) 784-4399 email@example.com
In a March 24 letter to Wisconsin Attorney General James E. Doyle, 28 Wisconsin groups and 454 individuals demanded that the State drop a lawsuit against the U.S. Environmental Protection Agency (EPA), for the agency's recognition of enhanced federal water protection codes by the Sokaogon Chippewa Community at Mole Lake (see below).
In 1995, the EPA granted Mole Lake "Treatment-As-State" (TAS) status under the federal Clean Water Act, enabling the tribe to strengthen protection of its reservation waters. The Mole Lake Reservation is adjacent to the proposed Crandon zinc-copper mine site in Forest County, and tribal members have expressed fears that their wild rice beds and drinking water would be affected by sulfide contamination and groundwater reductions from the underground mine.
The letter marked the 10th anniversary of the Exxon Valdez oil spill, which brought the company that initiated the Crandon mine proposal under heavy environmental criticism; its former partner Rio Algom, Ltd. now manages the project, though Exxon would still share in the financial proceeds from the mine if it went forward.
The letter was initiated by the Wolf Watershed Educational Project, an alliance of environmentalists, sportfishing groups, Native American nations, local residents, unionists, and students opposed to the Crandon mine plans. It states that the lawsuit "singles out" Mole Lake from other TAS-status tribes, because the status could potentially affect the mine. It concludes that preventing a Native American community from protecting its natural and cultural treasures "fits the criteria of environmental racism." Timothy Tynan of the Wolf Watershed Educational Project and Mining Impact Coalition added that "dropping the suit would be an act of environmental justice."
Dave Anderson, a water consultant to Mole Lake and an author of the tribe's strengthened water standards, said, "It is time for the State of Wisconsin to realize that using tax dollars to sue over the rights of Native American people is wrong and should end. The Attorney General's office should not be used to further the interests of private mining companies." Anderson added, "The Department of Natural Resources and Attorney General must recognize the inherent rights of Native peoples to protect their natural resources. If the DNR does not agree that the tribe has sovereign authority to protect resources on its own reservation, then it should at least adopt water quality standards stringent enough to protect the wild rice beds of the Sokaogon Chippewa."
The letter was signed by 28 Wisconsin groups, including the Wolf Watershed Educational Project, Midwest Treaty Network, Mining Impact Coalition, Wisconsin Resources Protection Council, Great Lakes Regional Indigenous Environmental Network, EarthWINS, and Wisconsin's Environmental Decade. They were joined by environmental groups in Ashland, Hayward, Minocqua, Green Bay, Sturgeon Bay, Shawano, White Lake, Washburn, Oshkosh, Stevens Point, Superior, and elsewhere around the state (see list below).
The letter was passed as a resolution by the town board of Nashville, which covers half the proposed mine site and includes Mole Lake, and by the town board of Ainsworth, which lies in Langlade County immediately south of the mine site. A similar petition was signed by 454 individuals from 121 Wisconsin communities, nearly all in the northern part of the state. The letter was also signed by 19 groups outside Wisconsin, including indigenous rights support groups from Austria and Belgium.
March 24, 1999
Dear Attorney General Doyle,
We support the attempts by Wisconsin Indian tribes to obtain and maintain Treatment-As-State (TAS) environmental standards, and further respect the authority granted by Congress to the EPA to recognize TAS status. We insist that agreements entered into by Wisconsin officials and tribes never undermine the legal authority of tribal governments to protect the health and well-being of their respective tribal members or tribal lands, waters, or air. We respectfully request you to drop all current state lawsuits against the U.S. Environmental Protection Agency (EPA) with respect to already granted TAS status, and refrain from future lawsuits which attempt to undermine the sovereignty of Wisconsin's Native American nations.
Congress has acted under federal environmental statutes to authorize the EPA to delegate to Indian tribes specific enforcement and regulatory authority to the same or a similar degree as is delegated by the EPA to the states.
The Clean Water Act sets the standards governing the water quality that must be maintained or achieved in rivers and other navigable waters, and requires dischargers into these waters to obtain permits imposing maximum levels of allowable pollutants. In 1987, Congress amended the Act and authorized the EPA to delegate to a qualifying tribe regulatory authority to set water quality standards under Section 303, to grant permits for dredging and filling under Section 404, and grant discharge permits under the National Pollutant Discharge Elimination System. In 1986, Congress had similarly amended the Safe Water Drinking Act to allow the EPA to to delegate to a tribe primary enforcement authority over underground injection well regulation or other program enforcement.
The Clean Air Act is the principal federal statute regulating emissions into the nation's air, and functions primarily by requiring sources of air pollutants to obtain new source or operating permits. In 1990, Congress amended the Act to authorize the EPA Administrator to treat tribes as states whenever tribes are capable of carrying out those functions.
Many of Wisconsin's 11 federally recognized tribes are seeking or have obtained TAS status from the EPA, in an attempt to protect their reservation waters or air from polluting industries such as mines, coal- burning power plants, and paper mills. Yet state agencies and officials appear to prefer economic interests over the human and sovereign rights of indigenous peoples, their traditional means of subsistence, their right to development, and their sacred relationship with the land, water, and air.
We ask you, Governor Tommy Thompson, and Department of Natural Resources Secretary George Meyer to stop blocking attempts by Wisconsin tribes to obtain or maintain TAS status. We oppose any pressure on the tribes to give up their pursuit of TAS status in return for gaming rights. We feel that you are wrongly representing Wisconsin citizens by vowing to sue the EPA when any tribe successfully achieves TAS status, and by claiming that only the state government has sovereign authority over the air and navigable waters of Indian reservations.
We particularly oppose your lawsuit against EPA for granting TAS status in 1995 to the Mole Lake Sokaogon Chippewa Community. The tribe is attempting to protect its drinking water and wild rice beds from the potential threat of acid mine drainage and groundwater drawdown. We feel that the lawsuit represents only the interests of the Rio Algom mining company in opening its proposed Crandon mine adjacent to the reservation. The State of Wisconsin is attempting to prevent one of its own communities from protecting its clean water and cultural resources. The tribe's wild rice beds are the mainstay of its ancient cultural heritage, and should be a treasure for all citizens of the state. Your legal action singles out a small tribe that is at potential risk from water contamination, and in doing so fits the criteria of environmental racism.
We strongly feel that Wisconsin should initiate a respectful government-to-government relationship with tribes to protect our common resources. In the 21st century, we should not be repeating the cultural genocide of the 19th century.