ELY, MN-- Yesterday lawyers for Northeastern Minnesotans for Wilderness (NMW), the lead organization in the Campaign to Save the Boundary Waters, signed an agreement with the Minnesota Department of Natural Resources (DNR) that establishes a process for addressing review and possible revision of state mining rules. The agreement sets the stage for the DNR to reconsider its 27-year-old copper-nickel mining rules to determine if they are adequate to protect the Boundary Waters from copper-nickel mining pollution in the Rainy River Watershed.
"State rules and standards are inadequate to protect the Boundary Waters, and the agreement yesterday gives us the opportunity to prove it."
"The Boundary Waters is a national treasure and the cornerstone for tens of thousands of Minnesotans whose livelihoods depend upon a healthy and protected Wilderness," said Tom Landwehr, Executive Director of the Campaign to Save the Boundary Waters. "State rules and standards are inadequate to protect the Boundary Waters, and the agreement yesterday gives us the opportunity to prove it."
The agreement signed yesterday is a result of NMW’s lawsuit challenging the state’s non-ferrous mining rules filed pursuant to the Minnesota Environmental Rights Act (MERA) on June 24, 2020.
NMW alleges that the current mining rules - adopted 27 years ago - fail to protect the Boundary Waters. The current rules allow for sulfide-ore mining in the upstream half of the Rainy River Headwaters, next to and outside of the Boundary Waters. Polluted waters from sulfide-ore copper mining in the upstream half of the Rainy River Headwaters would flow directly into the Boundary Waters and also put at risk the downstream protected areas of the Quetico Provincial Park and Voyageurs National Park.
This is the first-ever lawsuit brought under Section 10 of MERA (MS116B.10). NMW had the burden of proving with material evidence that allowing sulfide-ore copper mining in the upstream half of the Rainy Rivers Headwaters fails to protect the Boundary Waters from pollution, impairment,or destruction. The Minnesota DNR and NMW have agreed that NMW has met this requirement of material evidence. In the stipulation agreement, the Minnesota DNR and NMW have agreed to a process to address the adequacy of the rules.
The process as provided in the agreement is as follows:
- The DNR will provide a public comment period concerning the adequacy of the siting provisions of Minnesota’s nonferrous mining rules to protect the Boundary Waters and the Rainy River Headwaters as natural resources. The public comment period will likely be held in early 2021.
- After reviewing the public comments, scientific evidence submitted with the comments, and any additional information available to the DNR, the DNR will issue an order and findings of fact by September 30, 2021 concerning the adequacy of the siting rule.
- Any party to NMW’s lawsuit - and Antofagasta’s Twin Metals has intervened in the lawsuit and thus is a party - may challenge the DNR decision and request a contested case hearing, which is a trial before an administrative law judge. Therefore, we anticipate that there will be a contested case hearing on the adequacy of the nonferrous mining regulations to protect the Boundary Waters and the Rainy River Headwaters. If the administrative law judge finds that the siting section of the Minnesota nonferrous mining rules is inadequate to protect the Boundary Waters, the DNR will commence the formal rulemaking procedure to amend state regulations.
- After final rulemaking, the matter will return to district court in Ramsey County to address any challenges by any party to the lawsuit.
The entire process for NMW’s MERA lawsuit will take several years. Success would mean that sulfide-ore mining would be prohibited in the entire Rainy River Headwaters, including and specifically the upstream half that is currently unprotected.