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Court dismisses Fond du Lac's federal challenge of PolyMet water permit

Judge allows band's claim that the EPA failed to inform it that PolyMet "may affect" its reservation was to continue.

PolyMet
Plans for PolyMet include building dams to increase the storage capacity of tailings basins. One would be built in the distance to raise the basin on the right to the level of the area on the left. (File / News Tribune)
Steve Kuchera / 2017 file / Duluth News Tribune
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A federal judge dismissed the Fond du Lac Band of Lake Superior Chippewa's challenge of a PolyMet water permit but allowed its claim that the Environmental Protection Agency failed to inform it of potential environmental effects of the proposed copper-nickel mine to continue.

The Fond du Lac Band in September 2019 filed a lawsuit that said because concerns and comments made by EPA staffers reviewing a draft of PolyMet's national pollutant discharge elimination system, or NPDES, permit were read to the Minnesota Pollution Control Agency over the phone and kept out of the public record, the court should order the "EPA to reconsider its decision not to object to the permit until a proper review takes place."

But in an order issued in U.S. District Court in Minneapolis on Tuesday, Judge Patrick J. Schiltz said the court did not have authority to do that and dismissed that part of the band's lawsuit.

"The Court agrees with defendants that it lacks jurisdiction to review either EPA’s decision not to object to the NPDES permit or the process by which EPA made that decision," Schiltz wrote.

Schiltz let the band's claim that the EPA failed to inform it that PolyMet "may affect" its reservation to continue.

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"The Court therefore finds that it has jurisdiction to review EPA’s 'may affect' determination," Schiltz wrote.

In a statement Wednesday, the Fond du Lac Band said it was "pleased" those claims could move forward but did not comment on the court's dismissal of the claim against the water permit.

"The court’s decision allowing these claims to go forward is a small victory for the Band and ensures that the important Clean Water Act protections for downstream states, like the Band, have real meaning," Chairman Kevin Dupuis Sr. said.

PolyMet is proposed 70 miles upstream from the Fond du Lac Reservation near Babbitt and Hoyt Lakes and in the St. Louis River Watershed.

The Fond du Lac Reservation and treaty land sits on the St. Louis River. The band fears potential pollution from PolyMet, namely sulfides, would damage its wild rice and other resources.

In a news release Tuesday afternoon, PolyMet noted there were no other federal cases challenging the NPDES permit, but that the Minnesota Court of Appeals continues to review it.

In that case, the project's water permits are headed back to the Court of Appeals after a district court judge said the agency did not not break the law or its own policies in trying to keep the EPA's comments and concerns out of the public.

PolyMet's NPDES, which regulates water discharged from industrial activities, and many other of its permits were placed on hold amid numerous court challenges.

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The Minnesota Supreme Court is reviewing two cases examining PolyMet's air permits and permit to mine and dam safety permits . It could issue decisions soon.

A separate federal lawsuit filed by environmental groups in September 2019, the same day as the band's lawsuit challenging the EPA and U.S. Army Corps of Engineers, continues.

In that lawsuit, Friends of the Boundary Waters Wilderness, Center for Biological Diversity and Minnesota Center of Environmental Advocacy claimed the Army Corps violated the Clean Water Act and the National Environmental Policy Act when it issued PolyMet's wetlands permit, which allows the company to discharge dredged and fill material into more than 900 acres of wetlands as the company develops and builds its mine.

This story was updated at 11:43 a.m. Feb. 17 with reaction from the Fond du Lac Band. It was originally posted at 9:03 p.m. Feb. 16.

Jimmy Lovrien covers energy, mining and the 8th Congressional District for the Duluth News Tribune. He can be reached at jlovrien@duluthnews.com or 218-723-5332.
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