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Serving Northern St. Louis County, Minnesota

Judge denies Twin Metals request to block review of state mining rules

Marshall Helmberger
Posted 5/14/21

REGIONAL— A state district court judge has denied a request by Twin Metals to dismiss an ongoing legal and administrative proceeding that could ultimately prove fatal to the company’s …

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Judge denies Twin Metals request to block review of state mining rules

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REGIONAL— A state district court judge has denied a request by Twin Metals to dismiss an ongoing legal and administrative proceeding that could ultimately prove fatal to the company’s plans to construct a copper-nickel mine near Ely.

The ruling, issued late last week in Ramsey County court by Judge Laura Nelson, could clear the way for the Department of Natural Resources to review its current hard rock mining rules, a process that could ultimately block the state from issuing permits for the controversial project.

The proposed mine would be located along the South Kawishiwi River, several miles upstream of the Boundary Waters Canoe Area Wilderness and 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.

That concern formed the basis of the lawsuit that Twin Metals had hoped to have dismissed. Ely-based Northeastern Minnesotans for Wilderness took the legal action last June, filing a lawsuit under Section 10 of the Minnesota Environmental Rights Act (MERA) contending that existing state rules for non-ferrous mining were not adequate to protect the Boundary Waters from pollution from the mine. The state law, which dates back to the 1970s, gives anyone the right to sue if they believe a state law, rule, or permit fails to protect the environment.

MERA also sets forth a process to address such cases. If a court finds that the environmental plaintiffs have presented sufficient evidence that a state rule or permit is inadequate to protect the environment, it can remand the issue back to the state agency that created the rule or permit for further analysis.

The evidentiary bar for a remand is relatively low, however, and DNR officials acknowledged that NMW likely had sufficient evidence to require a remand. So, the agency and the group reached an agreement last November that the agency would agree to review its rules rather than argue against that initial step.

Twin Metals opposed that agreement and sought to block it in court, but the decision this past week denied the company’s attempt to derail the agreement. Critics of the proposal celebrated the decision, arguing that the Twin Metals project, owned primarily by Chilean mining giant Antofagasta threatens the “clean water, robust local economy, and world-class recreational value of our country's most visited wilderness.”

“With the ruling today, Minnesotans will have the opportunity to demonstrate that the state's rules regulating where it is appropriate to conduct risky mining are not sufficient to protect the Boundary Waters and all that it provides our great state and nation,” said Tom Landwehr, the former DNR Commissioner, who now serves as executive director of the Campaign to Save the Boundary Waters.

Twin Metals now has the option to appeal or to argue its case as part of the DNR’s review of the non-ferrous mining rules.

“Twin Metals Minnesota is reviewing the decision to determine next steps,” said spokesperson Kathy Graul. “The rigorous state and federal environmental protection standards in place are designed to protect Minnesota’s environment and all of its watersheds. We expect the regulatory review of the project to continue as this case proceeds.”

The entire process for NMW’s MERA lawsuit could take several years, although there is no guarantee that the end-result would yield stricter state rules. But NMW officials point to several scientific studies that indicate that the area is particularly vulnerable to the type of pollution such a mine could generate and they are hopeful that once those studies are included in a record of decision on the matter, they would lay the groundwork for rules that could well eliminate sulfide-based mining in the entire Rainy River watershed. Much of the lower reaches of the Rainy River watershed are already protected, either through the protections afforded by federal wilderness legislation or the creation of Voyageurs National Park. But a portion of the headwaters of the watershed lie to the south of the wilderness boundary and outside those wilderness protections.

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