For Immediate Release
November 15, 2024
Contact: Libby London (612) 227-8407
Minnesota’s copper-nickel-sulfide mine siting rule, Minn. R. 6132.2000, allows open-pit and underground copper-sulfide mining, tailings piles, smelters, sulfide waste rock dumps, and other copper-sulfide mine features to be in the headwaters of the Boundary Waters. Science and data confirm that polluted water from copper-sulfide mines situated anywhere in the Rainy River-Headwaters Watershed would flow into and degrade water quality in the Boundary Waters, in violation of state law.
NMW filed a lawsuit in Ramsey County District Court in June 2020 challenging the rule because it fails to protect the Boundary Waters Canoe Area Wilderness from pollution, impairment, and destruction.
(St. Paul, MN) — Northeastern Minnesotans for Wilderness (NMW), the founder and lead organization of Save the Boundary Waters, concluded an administrative law evidentiary trial called a “contested case hearing” (“the Hearing”) before Minnesota Administrative Law Judge Megan McKenzie. The Hearing concluded mid-afternoon on Wednesday, November 13th
NMW presented evidence that Minnesota’s current non-ferrous (i.e., sulfide-ore copper-nickel) metallic mineral mining rule – adopted 31 years ago – is inadequate to protect the Boundary Waters Canoe Area Wilderness (BWCAW) from pollution, impairment, and destruction. Eighty percent of the BWCAW is located in the downstream half of the Rainy River-Headwaters Watershed (also called the Boundary Waters Watershed).
During the trial, NMW’s legal counsel, Ciresi Conlin LLP, introduced NMW’s expert witnesses. Those witnesses presented testimony that sulfide-ore copper mining in the unprotected upstream half of the Boundary Waters Watershed would almost certainly result in water pollution, light pollution, and noise pollution in the downstream half, which includes the BWCAW. NMW’s expert witnesses testified that sulfide-ore copper mining consistently degrades nearby surface and groundwater, that the mine-by-mine review and permitting process consistently fails to accurately predict the pollution that occurs around the mines after they are built, operated, and closed, and that the DNR’s nonferrous metallic mineral mine siting rule, which relies upon mine-by-mine review and permitting, is inadequate in the headwaters of the Boundary Waters Watershed, where all water flows north, downstream into the BWCAW. State and federal law prohibits any water quality degradation in the BWCAW; the outdated mine siting rule is inadequate to protect the waters of the BWCAW and must be amended to ban all sulfide-ore copper mining in the Rainy River-Headwaters Watershed.
“State and federal agencies alike acknowledge that the Boundary Waters watershed is a unique and irreplaceable ecosystem that warrants additional protection. Minnesota’s mine siting rule allows nonferrous mines in the upstream half of the Rainy Rainy-Headwaters Watershed. Water pollution from sulfide-ore copper mines in the upstream half of the Rainy River-Headwaters Watershed would flow through lakes, rivers, and groundwater directly into the downstream BWCAW. Federal and state law prohibit any water quality degradation of the BWCAW. Therefore, by allowing sulfide-ore copper mines in the upstream half of the Rainy River-Headwaters Watershed, the rule fails to protect our state’s crown jewel,” explained Ingrid Lyons, Executive Director of Northeastern Minnesotans for Wilderness, the lead organization of Save the Boundary Waters, “State agencies propose that they approve these dangerous mines by relying on modeling for degradation. Modeling for mine pollution has proven to be overly optimistic time and time again, and has failed to accurately predict outcomes for this industry, which has a 100% water pollution rate. Northeastern Minnesotans for Wilderness argues that the only tool that will ensure that the waters of the BWCAW will not be degraded by sulfide-ore copper mining is to ban this type of mining from the entirety of the Rainy River Headwaters Watershed.”
“48 years ago, the State of Minnesota banned mining inside the Wilderness. We know more now – we know that if this type of dangerous mining is developed outside the Wilderness, in its headwaters, the Boundary Waters will be permanently damaged,” said Ingrid Lyons, Executive Director of Northeastern Minnesotans for Wilderness, the lead organization of Save the Boundary Waters.
In 2020, NMW challenged Minnesota’s nonferrous mining rules in a lawsuit brought under section 10 of the Minnesota Environmental Rights Act. NMW challenges Minnesota’s nonferrous metallic mineral mine siting rule Minn. R.6132.2000, arguing that it is inadequate to protect the Boundary Waters Canoe Area Wilderness from sulfide-ore copper mining pollution.
The current rule bans nonferrous mining inside the BWCAW and prohibits “surface disturbances” in a roughly 1/4 mile surrounding buffer area, or Mineral Management Corridor. Under the existing rule, approximately 50% of the Rainy River-Headwaters Watershed is protected from mining; this is the downstream half – the Boundary Waters. Consistent with DNR policy to regulate water on a watershed basis—and because science and the best available data now confirms that polluted water from mines situated in the upstream half of the RRH is highly likely to flow into the BWCAW—NMW seeks to amend the Rule to ban nonferrous mining in the upstream half of the Watershed.
Eighty percent of the Boundary Waters is located in the northern portion of the Rainy River-Headwaters Watershed. The southern half of the Rainy River Headwaters Watershed is outside and upstream of the Wilderness. Degraded and polluted waters in the southern half of the RRH would flow north, directly into the Wilderness, where no mitigation or remediation is legally allowed or feasible.
Multiple peer-reviewed scientific reports, including the 2016 Decision by the US Forest Service to withhold its consent to federal mineral leases in the Boundary Waters Watershed and the 2022 Superior National Forest Environmental Assessment, determined that sulfide-ore copper mining in the watershed of the Wilderness is simply incompatible with the Boundary Waters and would do irreparable harm. Despite the federal government’s scientifically based action to ban mining of federal lands and minerals in the Boundary Waters Watershed as necessary to protect the Boundary Waters, current state rules do not prohibit risky sulfide-ore copper mining in the unprotected half of the Rainy River-Headwaters Watershed, including on lands near the Wilderness and adjacent to rivers and lakes that flow directly into Minnesota’s National Wilderness Area. NMW argues that the DNR’s authority under the reclamation chapter allows it to ban mining in places where reclamation is impossible, including polluted waters of the Boundary Waters Wilderness where no remediation or fix is possible
NMW experts testified that any sulfide-ore copper mine in the Rainy River-Headwaters Watershed would inevitably lead to pollution, including an increased load of sulfate upstream and an increase in sulfate concentration at the boundary of the BWCAW, even if modeling fails to predict water quality degradation as part of the permitting and environmental review process.
“Mining-related contamination can exist for millennia,” states expert witness geophysicist David Chambers, Ph.D of the Center for Science in Public Participation in his direct testimony. “Abandoned and unmanaged mine workings pose a particularly acute threat to the BWCAW where once pollution enters the waters, it cannot be remediated.”
“The data conclusively shows that sulfate currently introduced into the Rainy River Headwaters watershed reaches the Kawishiwi River system and ultimately the BWCAW,” expert witness Hydrologist Tom Myers, Ph.D states in his direct testimony. “There has never been a permit granted to a mine where an exceedance of water quality standards was predicted, yet there are many mines where documented water quality degradation has occurred. This demonstrates that predicting water quality impacts on a case-by-case basis is an inherently flawed process, because the predictions are too often overly optimistic. This is not justification for foregoing case-by-case analyses, it only shows that the results of such analyses are frequently inaccurate and inadequate.”
A 2017 report by the Minnesota Pollution Control Agency describes the waters within the Rainy River Watershed area as “exceptionally clean” and “immaculate” and concludes that "the majority of the waterbodies within this watershed had exceptional biological, chemical, and physical characteristics that are worthy of additional protection."
On January 26, 2023 U.S. Interior Secretary Deb Haaland signed a Public Land Order (PLO) that withdrew 225,504 acres of federal lands and minerals located in the Rainy River Headwaters upstream of the Boundary Waters Canoe Area Wilderness from the federal mineral leasing program for 20 years.
Background:
On June 24, 2020, Northeastern Minnesotans for Wilderness (NMW) challenged the state’s non-ferrous mine siting rules pursuant to Section 10 of the Minnesota Environmental Rights Act (MERA) with legal representation by a team of lawyers at Ciresi Conlin LLP. This lawsuit is the first to challenge a state rule under Section 10 of MERA (Minn. Stat. Chapter 116B.10)
After NMW brought the case, a Ramsey County Court remanded NMW’s claim to the MN DNR to undertake an administrative process in order to determine if Minnesota’s nonferrous mining rules fail to adequately protect the Boundary Waters Canoe Area Wilderness from pollution, impairment, or destruction.
The finding that NMW met the burden of proof required for a review of the adequacy of the state's rules was not challenged by the MN DNR, the defendant in the lawsuit. However, NMW's standing to bring the lawsuit was challenged by Chilean mining conglomerate Antofagasta subsidiary Twin Metals Minnesota, an intervenor in the lawsuit. The Court affirmed NMW's standing and directed the DNR to begin a review of the state's mine siting rules. That process began in November of 2021 with a 30-day public comment period that generated 8,823 comments, the majority of which opposed allowing sulfide-ore copper mines in the Rainy River Headwaters.
On May 31, 2023, the DNR determined that Minnesota’s non-ferrous metallic mine siting rule was inadequate to protect the Boundary Waters from the toxic noise and light pollution inherent to sulfide-ore copper mining. Twin Metals Minnesota challenged that decision. However, the DNR failed to adequately address the threat copper mining poses to water quality. On June 29, 2023, NMW filed a request for a contested case procedure challenging the DNR’s’ Findings of Fact, Conclusions of Law, and Order on Remand.
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