As mentioned in a prior blog post, the Menominee Indian Tribe of Wisconsin (“Tribe”) sued the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) over the proposed Aquila Resources Back Forty Mine (“Mine”) located in Michigan, arguing that EPA and Corps have failed to take responsibility under the Clean Water Act (“CWA”) for reviewing wetland permits for the project. Michigan is responsible for issuing the Section 404 wetland fill permits for the Mine because EPA delegated such permitting authority to Michigan in 1984 as allowed under the CWA.

A federal judge in Wisconsin recently ruled against the Tribe and dismissed the lawsuit, generally because the EPA and Corps did not violate any mandatory duties or make any final agency actions related to the Mine. More specifically, the judge addressed four claims made by the Tribe.

The court considered two claims made by the Tribe in its original complaint:

  1. The Tribe claimed the EPA and Corps had a mandatory duty under the CWA to assume jurisdiction over the Section 404 permit process, and the Tribe could enforce this under the CWA’s citizen suit provision. The court first held the CWA does not authorize citizen suits against the Corps, so the court lacked subject matter jurisdiction over this claim as it pertained to the Corps. The court further held this claim must be dismissed as to the EPA because the Tribe failed to identify a nondiscretionary duty which the EPA had not performed. If the Tribe wished to challenge the EPA’s decision to allow Michigan to assume authority of the Section 404 permitting process, it would have to challenge this under the Administrative Procedures Act (“APA”), and not a citizen suit.
  2. The Tribe claimed the EPA’s and Corps’ refusal to assert jurisdiction over the Section 404 permitting was arbitrary and capricious and in violation of the APA. The court held that this “as-applied” challenge to the APA must rest on final agency action, and that the final agency action was EPA’s 1984 decision to allow Michigan to assume permitting authority for Section 404 permits, not any recent letters sent by EPA to the Tribe about the permitting process.

In addition, the Tribe filed a motion to amend its complaint and to add two new claims, and the court discussed these proposed claims as follows:

  1. The Tribe claimed the EPA’s withdrawal of its objections to Michigan’s wetland permit was arbitrary and capricious and in violation of the APA. The court held the EPA’s decision to withdraw its objections was discretionary, not mandatory, and therefore is not reviewable under the APA.
  2. The Tribe claimed the EPA’s failure to consult with the Tribe pursuant to the National Historic Preservation Act (“NHPA”) before Michigan issued its permit for the mine was arbitrary and capricious and in violation of the APA. The court held the EPA was not required to consult with the Tribe about the mining project because the NHPA only requires consultation when a project is federally funded or federally licensed. The Back Forty Mine is not federally funded, and the permits are being issued by Michigan, not the federal government.

Therefore, the court denied the Tribe’s motion to amend the complaint and held that the Tribe failed to state a claim upon which relief can be granted and dismissed the Tribe’s case.

The Tribe appealed the decision to the Seventh Circuit Court of Appeals on January 17, 2019, arguing that the Clean Water Act requires the federal government to retain jurisdiction and apply federal safeguards for the benefit of everyone who has access to interstate and commercially used waters such as the Menominee River. We will continue to provide substantive updates on this case as they develop.

Husch Blackwell’s Daniel Fanning and Coty Hopinks-Baul provide interesting insights in the latest post from the CWA Series on whether or not a permit is required for discharges to groundwater under the Clean Water Act.
Read more here.

 

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For more information about how these decisions may affect your organization, please contact Coty Hopinks-Baul or Daniel Fanning of Husch Blackwell’s Environmental team.