By JOHN PEPIN – Journal Staff Writer , The Mining Journal

MARQUETTE – Attorneys for three federal agencies and the Kennecott Eagle Minerals Co. have responded to claims made by the Huron Mountain Club in a federal lawsuit, which seeks a preliminary injunction to shut down development operations at Kennecott’s Eagle Mine in northwestern Marquette County.

U.S. District Court Judge Robert Holmes Bell scheduled Wednesday as an expedited date for the preliminary injunction hearing, which will be held in Grand Rapids.

This is the first lawsuit brought against the Eagle mining project in federal court. The club lawsuit was filed last month. Kennecott and the federal agencies involved filed responses last week.

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.

“These actions include a 42-day administrative contested case hearing, where the club litigated and lost its argument that the mine will harm the environment,” the Kennecott court pleadings stated.

Kennecott said the Michigan Department of Environmental Quality and the Ingham County Circuit Court specifically ruled that the mine will not collapse because it will have a thick 87.5-meter crown pillar (roof) that will be supported by tight backfill; will not adversely affect wetlands, the Salmon Trout River or area wildlife and Kennecott does not need additional permits for its mining activities hundreds of feet below a portion of the river’s headwaters.”

“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.

For those reasons, Kennecott argues the injunction motion should be denied.

The federal agencies agreed the club’s motion was “woefully lacking,” in establishing some of those prerequisites.

In the 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 drawdown 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.

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. His email address is jpepin@miningjournal.net.