REGIONAL— In a major win for environmentalists and the Fond du Lac Band, a three-judge panel of the state’s Court of Appeals has sent a case challenging PolyMet’s water discharge permit to the Ramsey County District Court citing “irregularities.”

In an order issued Tuesday, the court panel— which included Judge James Florey, a former district court judge from the Iron Range— determined that Duluth-based Water Legacy and the Fond du Lac Band had presented sufficient evidence of irregularities in the development of the administrative record in the case to warrant fact-finding by a district court. The appellants in the case had presented evidence that the Minnesota Pollution Control Agency and officials with the Environmental Protection Agency had made efforts to suppress concerns that EPA professional staff had with the water discharge permit that the MPCA planned to issue to PolyMet.

The MPCA issued a final permit for PolyMet’s planned NorthMet copper-nickel mine late last year, but environmentalists and Fond du Lac sued and the case has taken an unexpected turn as information about the handling of EPA’s concerns has come to light.

In making their decision, the appellate judges noted that sworn statements made available to the court to date provide “undisputed evidence that (1) the MPCA and EPA departed from typical procedures in addressing the NorthMet permit, engaging in multiple telephone conferences and in-person meetings, some of which are not reflected in the administrative record.” In addition, the court found that: “(2) the EPA prepared written comments on the draft NorthMet permit; (3) those written comments were never submitted to the MPCA and are not part of the administrative record; (4) instead the written comments were read to MPCA during an April 5, 2018 telephone call; and (5) notes taken during that call have not been included in the administrative record, and are believed to have been discarded.”

Left unresolved by the evidence so far, is whether it was unusual for EPA to opt against submitting written comments and whether the MPCA sought to keep the EPA’s comments out of the public record.

In sending the case to the district court, the judges concluded that Water Legacy had provided “substantial evidence of procedural irregularities not shown in the administrative record, and thus that it is appropriate to transfer this matter to a district court for a hearing and determination of the alleged irregularities.”

Water Legacy legal counsel Paula Maccabee called the decision a major victory. “The court has told the state of Minnesota and PolyMet that the rule of law still applies here,” she said. “It gives us an opportunity to find the truth of what happened, that allowed the MPCA to issue a weak and inadequate permit to PolyMet, and it gives us a chance to fix it.”

Maccabee said she would soon be filing a motion asking the court to stay the PolyMet permit until the judicial review is completed. The MPCA would also have the option to voluntarily stay the permit while the case proceeds.

The latest ruling virtually guarantees that the permit will remain somewhat in limbo for potentially many months. The district court will need to schedule a hearing and Maccabee said she’ll press for at least limited discovery, which could include depositions or requests for further documents, a process which would almost certainly take months by itself. And any decision a district court might issue on the issues addressed in the case would likely face appeal. Once that process is completed, the Court of Appeals would then potentially hear the original case, which could take additional months to proceed.

The MPCA did not respond to a request for comment for this story.