REGIONAL—A Ramsey County judge has issued an order that gives the Department of Natural Resources one year to issue a determination of whether the state’s existing non-ferrous mining rules are adequate to protect the Boundary Waters Canoe Area from mining within the wilderness watershed.
The order, by Judge Laura Nelson, gives the DNR until Oct. 4 of this year to establish a process to take public comment on the adequacy of the state rule, known as Minn. R. 6132.2000, in protecting the upper reaches of the Rainy River watershed from a proposed copper-nickel mine. The mine, proposed by Chilean mining giant Antofagasta and its affiliate Twin Metals, would be located along the South Kawishiwi River, several miles upstream of the Boundary Waters Canoe Area Wilderness. Critics of the proposal argue that the sulfide-based ore that the mine would expose and process is highly likely to leach acids and heavy metals, potentially contaminating waters within the wilderness.
The latest order, issued Sept. 13, comes as part of a stipulation agreement between the DNR and Northeastern Minnesotans for Wilderness, which is fighting to halt the mine plan. The agreement is based on provisions in the largely untested Minnesota Environmental Rights Act, which gives the public the right to challenge in court any state action that has the potential to cause environmental degradation. NMW argued in court that the DNR’s current rules on non-ferrous mining cannot adequately protect pristine downstream waters in the Boundary Waters and that only a prohibition on non-ferrous mining in the watershed could achieve the protection afforded the wilderness area under both state and federal law.
Twin Metals had sought to block the lawsuit and intervened earlier this year to seek dismissal of NMW’s claim. But the judge denied the company’s request back in May, which should allow the examination of the state mining rules to move forward.
Under the new order, the DNR will have one year to issue its own determination of whether existing state rules are adequate to protect the Boundary Waters from mining pollution. Both NMW and Twin Metals would then have the right to challenge that finding through a contested case process that would proceed in front of an administrative law judge. Such a process could take several months, or even longer, and any decision coming out of the process could be subject to further litigation.
If the DNR or a court were to find that the existing rules are inadequate to protect the BWCAW, the agency would have to begin a new rule-making process, that could take months or years to complete. The final results of any rule-making process could also be subject to litigation.
The NMW lawsuit which prompted the new look at the state’s 28-year old non-ferrous mining law, is part of a mult-jurisdictional effort by NMW and its affiliated national Campaign to Save the Boundary Waters, to halt the Twin Metals project. The group is also litigating at the federal level to reverse a Trump-era decision to restore mineral leases that would make the mine possible. Twin Metals has yet to disclose financial projections showing the proposed low-grade ore mine would be financially feasible.