Club files legal challenge against Eagle Mine project

May 8, 2012
By JOHN PEPIN – Journal Staff Writer ( , The Mining Journal

MARQUETTE – A federal court judge set an expedited hearing date Monday to decide whether work should be shut down at the Kennecott Eagle Minerals Co. mine in Michigamme Township while a new lawsuit by the Huron Mountain Club against the mining company and several governmental agencies is decided.

U.S. District Court Judge Robert Holmes Bell scheduled June 6 for the preliminary injunction hearing, which will be held in Grand Rapids.

“The court finds that the potential harm to plaintiff (the club) is not sufficiently immediate to require the extraordinary measure of a temporary restraining order,” Bell wrote in his order. “However, the court agrees that an expedited hearing on plaintiff’s motion for preliminary injunction is warranted.”

This is the first lawsuit brought against the Eagle mining project in federal court. The private Huron Mountain Club – citing concerns over potential irreparable damage to the value of club lands and the Salmon Trout River – alleges that the Kennecott mine is being constructed illegally because proper permits were not obtained by Kennecott, nor were they required by the U.S. Army Corps of Engineers.

Additional federal agencies named in the lawsuit include the U.S. Fish and Wildlife Service and the U.S. Department of the Interior.

Club representatives want mine construction stopped to compel the federal agencies to “fulfill their congressionally mandated procedural responsibilities.”

“Kennecott’s conduct is illegal in the absence of permits issued pursuant to the Rivers and Harbors Appropriations Act and federal Water Pollution Control Act (Clean Water Act), as well as pre-permit evaluations the federal defendants must conduct pursuant to the National Environmental Policy Act, Endangered Species Act and National Historic Preservation Act,” court pleadings filed by the club said. “Kennecott has never applied for the required permits. In turn, the federal defendants have failed to demand Kennecott apply for the permits, and they consequently never have engaged in the mandatory pre-permit evaluations Kennecott’s conduct compels.”

The club is being represented by lead counsel Frederick W. Addison III of the law firm of Munsch Hardt Kopf & Harr of Dallas, Texas.

Kennecott officials said Monday they had not had an opportunity to review the claims of the lawsuit, which was filed Sunday, but company President Adam Burley said “we will vigorously defend our legal position.”

“We are disappointed today to see this suit filed, given the strong and longstanding support for the project by many in the community,” Burley said in a press release.

Construction on the mine began in 2010 and is now about 75 percent complete. The company said it is on track for full nickel and copper production in 2014.

All required state permits for the mine were obtained through the Michigan departments of Environmental Quality and Natural Resources.

“Permits underwent extensive state and federal regulatory agency reviews and were affirmed by state courts in response to multiple legal challenges by the Huron Mountain Club (and three other parties) that began in 2006,” Burley said.

One appeal to a state contested case hearing is still pending. Plaintiffs in that action, including the club, are waiting to see if the Michigan Court of Appeals will hear the case.

In the new federal lawsuit, the club said the U.S. Army Corps of Engineers is required under the Rivers and Harbors Appropriations Act to issue a permit before any person can begin construction on a project that will affect a navigable river or, under the Clean Water Act, discharge dredge or fill into a waterway.

“Significant portions of the Eagle Mine will be located directly underneath the Salmon Trout River and corresponding wetlands,” the complaint read.

The club said Kennecott will draw down water from the wetlands, reduce the flow of the river, change its temperature, reduce its reach and excavate and redeposit materials in the subsurface portions of the river bed.

In addition to environmental studies associated with the Kirtland’s warbler and other threatened or endangered species and an alternatives analysis for the project, the club said a cultural investigation of Eagle Rock is required.

“Kennecott intends to blow up a geological feature known as ‘Eagle Rock,’ which has been used by Native American tribes as a sacred worship site for more than 1,000 years,” the pleadings read. “Under the National Historic Preservation Act, this activity is also illegal unless the (Army) Corps first conducts a cultural evaluation compliant with (the act) and then approves the destruction of Eagle Rock.”

Kennecott’s Eagle Project currently employs almost 300 people in the Upper Peninsula. At the height of construction, the company estimates the mining project will support about 1,000 additional spin-off jobs.

“If approved, the suit to stop construction would have devastating economic consequences for our employees and their families who live in the area, and the many other hundreds of jobs created by the project,” Burley said.

Burley said that as Kennecott continues to build “a world-class modern mine” in Michigan, the company’s highest priority will remain ensuring the safety of workers.

“We are committed to protecting the environment that is unique and special to the area and maximizing the benefits of our presence for the local community,” Burley said.

John Pepin can be reached at 906-228-2500, ext. 206.

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