MAC: Mines and Communities

Who's following the true law?

Published by MAC on 2010-01-19
Source: Lake Superior Mining News (2010-01-14)

Rio Tinto gains approval for US mine project, in defiance of Native Rights

In 2006, Rio Tinto submitted an application to mine nickel and copper at its proposed Eagle Mine, in Michigan's Upper Peninsula, on the south shore of Lake Superior.

After some fumbling, the Michigan Department of Environmental Quality (DEQ) gave "final" approval in December 2007.

Opponents, including the Keweenaw Bay Indian Community (KBIC), which retains treaty rights with the US government to hunt, fish and gather at the site, appealed the decision.

After a lengthy "contested case hearing", an administrative law judge recommended the project move forward in August 2009; stipulating, however, that KBIC's right to worship at the mine site (Eagle Rock) be respected.

Last November 2009, DEQ Director Steven Chester - acting as both agency head and quasi-legal judge and final decision-maker for the contested case hearing - disagreed with that one stipulation.

Last week's DEQ decision affirms the agency's opinion that Rio Tinto's project should move forward, irrespective of KBIC's religious and treaty rights. It appears to ignore federal laws on Native American religious rights.

[Comment by Gabriel Caplett]

Through the Looking Glass: Michigan DEQ Says Michigan DEQ Followed Law In Rio Tinto Approval

Lake Superior Mining News

14 January 2010

The Michigan Department of Environmental Quality (DEQ) announced today that it is giving final approval of Rio Tinto's proposed Eagle Mine project, located on public land in the Upper Peninsula of Michigan.

The decision comes during a time of transition for the agency. Steven Chester resigned from his post as head of the DEQ three week's ago and was temporarily replaced by Deputy Director Jim Sygo. Today's news release issued by the DEQ does not indicate who, at the agency, made today's decision.

The DEQ had earlier approved Rio Tinto's mining application in December 2007. The decision was appealed in a lengthy contested case hearing.

In an August 2009 recommendation, Administrative Law Judge Richard Patterson stated that Rio Tinto and the MDEQ "did not properly address the impact on the sacred rock outcrop known as Eagle Rock" and suggested moving the mine's entry portal away from the rock. During the contested case , DEQ lawyers argued that Eagle Rock is not a place of worship because it is not a constructed building, such as a Christian church or a mosque.

In November, then DEQ Director Steven Chester requested that Judge Patterson clarify his position on the one stipulation that wasn't fully in Rio Tinto's favor.

Today's DEQ decision affirms the agency's opinion that Eagle Rock is not a legitimate place of worship, as defined under Michigan mining law, and that the religious rights of area Native Americans are irrelevant in the Eagle Mine case.

Apparently not under consideration is that the DEQ's coordinator for review of the Eagle Mine application, Joe Maki, admitted, under oath, that neither he or his team followed a central tenet of Michigan's "Part 632″ mining law in recommending approval of Rio Tinto's project.

In September 2008 Steven Chester further placed the agency's regulatory ability under question when he confessed, "We simply don't have the kind of funding we need to adequately implement the laws we're required to implement."

Swept under the rug are comments made by the state's commissioned rock mechanics expert, Dr. David Sainsbury, that the company's mine plan was "technically antiquated, sloppy and equivalent to high school level work." Sainsbury also insisted that the DEQ kept relevant local geological information out of his reports and repeatedly said that Kennecott's conclusions regarding the ability of the mine to not collapse "are not considered to be defensible" and does "not reflect industry best practice."

Michigan's machiavellian contested case process is interesting in that the DEQ makes the final decision on whether or not the agency, itself, appropriately followed applicable law. So, while Director Chester made a decision in 2007 to approve Rio Tinto's mining application, oddly enough it is Chester who was expected to make a final decision on whether or not his earlier approval followed the law.

The DEQ will no longer exist as an agency as of January 17, when it will be re-combined with the Department of Natural Resources to form the Department of Natural Resources and Environment. The new agency will be headed by the DNR's current director, Rebecca Humphries.

Rio Tinto, which also issued a press release today claiming that, with final state approval, the company would begin constructing the mine this year, with production expected to commence in 2013. Legally, the company must still obtain amendments to its mine plan, submitted to the DEQ, as well as permits from the Environmental Protection Agency before it can mine.

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