Judge doesn’t rule on mine injunction

Operations at Eagle site continue after matter taken under advisement in Grand Rapids court

June 7, 2012

By JOHN PEPIN – Journal Staff Writer (jpepin@miningjournal.net) , The Mining Journal

MARQUETTE – A federal judge made no decision Wednesday after a roughly three-hour hearing in Grand Rapids on whether to grant a preliminary injunction that would shut down development operations at the Kennecott Eagle Minerals Co. mine on the Yellow Dog Plains, until a lawsuit by the Huron Mountain Club is decided.

U.S. District Court Judge Robert Holmes Bell took the issue under advisement and did not give an indication when a decision would be rendered, according to Kennecott officials. Bell did grant the private club’s attorneys leave to file a response brief.

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.”

In its response, Kennecott attorneys said this legal action is the club’s ninth attempt over the past six years, in the fourth different forum, to stop Kennecott’s Eagle Mine.

“This is the club’s fourth attempt to seek ’emergency’ injunctive relief to stop Kennecott’s mine, and its second attempt to enjoin underground construction,” Kennecott’s response read. “The club’s earlier attempts failed, including its first attempt to block underground construction last September in state court, where the club claimed, as it does here, that collapse of the mine is highly likely and ‘would destroy the Salmon Trout River and its watershed.'”

Kennecott said this attempt fails too because the club cannot establish any of the elements necessary to obtain a preliminary injunction, saying the club’s claims are meritless, there is no irreparable harm and the equities and the public interest weigh heavily against injunction.

The federal defendants said that the main club environmental concerns have been the subject of “extensive review by state environmental authorities and challenges at various state levels of review.”

“Those reviews occurred because they were presented in the proper forums to address plaintiff’s concerns,” the government response read. “While plaintiff (the club) now turns to federal officials to address its concerns, there exists no statutory basis for any of the defendant agencies to exercise jurisdiction over the project, at least as plaintiff demands.”

The federal agencies said the court should deny the club’s motion to the extent it seeks to compel them to assert regulatory jurisdiction or take administrative enforcement steps regarding the mine. The federal agencies took no position regarding the club’s effort to obtain injunctive relief from Kennecott.

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

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