Serving Northern St. Louis County, Minnesota

DNR seeks review of Court of Appeals decision on PolyMet permits

Marshall Helmberger
Posted 2/12/20

REGIONAL— Both PolyMet Mining and the Minnesota Department of Natural Resources filed petitions this week asking the state’s Supreme Court to review a recent appellate ruling that …

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DNR seeks review of Court of Appeals decision on PolyMet permits

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REGIONAL— Both PolyMet Mining and the Minnesota Department of Natural Resources filed petitions this week asking the state’s Supreme Court to review a recent appellate ruling that invalidated three key permits for PolyMet’s planned copper-nickel mine near Hoyt Lakes.
The petition is not unexpected since PolyMet had already announced its intent to seek review of the earlier court ruling, but the decision by the DNR to seek a second opinion would seem to increase the chances that the state’s high court will take a look at the consequential appellate ruling.
The Minnesota Court of Appeals ruled on Jan. 13 that the DNR had erred legally when it declined to authorize a contested case hearing to allow mine critics an opportunity to challenge decisions made by the agency regarding PolyMet’s permit to mine as well as two dam safety permits.
“In filing this petition, the DNR is not questioning the value of a contested case hearing when holding a hearing would aid the commissioner in resolving a disputed issue of fact,” stated an agency press release issued Wednesday. “However, in this case, we believe the DNR thoroughly considered all of the disputed factual issues, produced substantial findings documenting the basis of our conclusions, and appropriately concluded that holding a hearing would not resolve these disputes.”
Specifically, the DNR will ask for clarification on the scope of a DNR commissioner’s discretion in determining whether to conduct a contested case hearing. The agency will also seek to clarify whether a mining permit requires an expiration date, as the appeals court determined. The agency will also, again, press its claim that the appellants in the case lack the standing to sue because they represent individuals who have not clearly shown they might be harmed if the mine goes forward.
Critics of the mine who challenged the DNR’s permit decisions, reacted to the agency’s announcement. “The DNR is digging in and doubling down on past mistakes in order to appease PolyMet and the copper-sulfide mining industry,” said Chris Knopf, executive director of Friends of the Boundary Waters. “The legal remedy ordered by the Court of Appeal involves an objective look at facts and science. This is another example of DNR teaming up with the industry it is supposed to regulate.”
Kathryn Hoffman, CEO of the Minnesota Center for Environmental Advocacy, defended the earlier decision. “The Minnesota Court of Appeals ruling that struck down PolyMet’s permits was well-reasoned, and we believe it will stand,” she said. “The Court properly concluded that the risks of PolyMet’s proposal are too important not to be fully evaluated by an independent judge—a request DNR improperly denied during the permitting process.”
The submission of the petition this week is no final guarantee that the high court will hear the case, although the high stakes, prominent nature of the proposed project, and the implications for future industrial projects would seem to increase the odds that the justices will opt to take their own look.
How long that might take is unclear and the decision to appeal does raise its own risks, particularly for PolyMet. If the high court agrees to hear the case, that process alone would certainly take many months to even a year or more. Should the high court uphold the lower court decision in any substantive way, the appeal, in the end, may only add more delay to PolyMet’s proposed mine.
Meanwhile, the company and the Minnesota Pollution Control Agency face a separate legal challenge over the process used to develop a water discharge permit for the mine. That permit decision is also under investigation by both state and federal watchdog agencies.

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