State Politics, Corporate Interest, and Native Rights:
Mining in Northern Wisconsin
Presented by Atty. Sandra Edhlund to the 18th Congress of the International
Association of Democratic Lawyers. April 2014.
The Penokee Hills of Northern Wisconsin stretch for 25 miles, roughly the distance
between Brussels and Antwerp, or Liverpool and Manchester, or Tel Aviv and Gaza
City. The Penokees and the land around them are the product of glaciers that
receded thousands of years ago, leaving behind a complex grouping of streams,
rivers, and wetlands that all deposit into Lake Superior, the largest of the United
States’ Great Lakes.
There are more than a dozen headwater lakes found in the Penokees, as well as the
Bad River and its subsidiary waterways, which flow through the area’s forested hills
before entering Lake Superior. There are also a number of ‘sloughs’ – essentially
marshes – directly adjacent to the Penokees that, along with the headwater lakes
and Bad River network, provide drinking water, fish and bird habitats, wild rice
fields, and ground water displacement. From an ecological perspective, the Penokee
Hills are not only an area of beauty in an increasingly industrialized world, but also
a crucial part of the ecosystem of Northern Wisconsin.
In addition to their environmental importance, the Penokees retain a spiritual and
cultural importance to American Indian populations in the region. In particular, the
Bad River Ojibwe, whose lands are situated in and around the Penokee Hills, attach
incalculable historical importance to the lakes, rivers, streams, and especially
sloughs of Penokees, where wild rice presently grows as both a food source and
sacred plant.
But there is one thing the Penokees hold – in addition to scenic beauty, ecological
necessity, and tribal history – that appears poised change things dramatically: iron
ore.
-Northern Wisconsin and the Upper Peninsula of Michigan have long been mining
country in one form or another. Modern copper mining arose in the Upper Peninsula
in the 1840s and iron ore mining followed in subsequent decades. Town names –
Copper Harbor, Copper City, Ironwood, Iron River, Iron Mountain, and so on –
reflect the historical importance of the precious minerals in the area. By the turn of
the 20th century, companies based in Chicago, Milwaukee and Minneapolis - all
hundreds of miles away from the actual mines - were turning huge profits out of
immigrant labor and readily accessible copper and iron. Port cities like Ashland, WI;
Duluth, MN and Sault Ste. Marie, MI served as maritime hubs. Copper and iron were
shipped across the Great Lakes to larger port cities like Chicago, Detroit, and
Toronto, where the booming industrial economy hungered for the precious metals.
As early as the 1910s, however, the mines began to slow down, as copper and iron
ran out and the realities of supply and demand set in. Towns began to shrink at a
dramatic rate, often by as much as 50 percent, leaving impoverished workers, the
one-time labor force of the great mining operations, to fend for themselves. By the
second half of the 20th Century, mining had ceased to be the economic engine of
Northern Wisconsin and the Upper Peninsula, though many residents did and still
do long for the jobs it once provided. Simply put, there is not much copper and iron
left to be mined, and therefore not many mining companies hiring, and therefore
thousands of people out of work.
But, as has recently been discovered, there is still iron ore in the Penokee Hills,
which were left untouched by mining companies in the past. And in turn, there are
people who would very much like to open the Penokees for mining and the money
mining promises to deliver to them and their companies’ shareholders.
-Leading the charge in the effort to mine the Penokees is the Gogebic Taconite
Corporation (GTC). Founded in Florida less than five years ago, GTC is the brainchild
of Chris Cline, one of the most powerful figures in American mining. Cline, who hails
from West Virginia, made his early money in the coal business in his native state
before branching out to operations in other parts of the country, most notably
Illinois. With GTC, Cline and his partners now look to venture into the world of iron
ore.
Cline’s rise to power in the mining industry came at a time when so-called “clean
coal” was emerging as America’s answer to a seemingly intractable conundrum: the
country needed energy, the economy needed jobs, and the environmental impact of
traditional mining could no longer be denied. Suddenly, the coal industry was
operating in the 21st century. Mine shafts running hundreds of meters below ground
and filled with soot-faced laborers constantly under threat of collapse (or fire, or
toxic gas) were replaced by machines that literally removed the tops of mountains
in order to access coal. Power plants belching black clouds into the atmosphere
were replaced by newer, cleaner facilities.
Skeptics maintained that there is really no such thing as “clean coal,” and that the
environmental impact of mountaintop removal mining is devastating - diverting
nearby streams, destroying forests and topography, and contaminating drinking
water supplies in and around the mining zones. The mining companies, however,
including Cline’s Foresight Reserves, quickly identified a winning strategy to trump
environmental concerns: promise jobs, financially support politicians who do the
companies’ bidding, and blame environmentalists for “job killing” policy aims when
they voice opposition.
It is a strategy limited neither to West Virginia nor to coal. In recent decades, as the
American thirst for energy and valuable minerals has remained insatiable and the
desire to become less reliant on foreign supply has grown, energy interests across
the country have found friendly politicians and eager labor in equal measure. In
North Dakota, for example, extracting petroleum via hydraulic fracturing – better
known as “fracking” – has become the state’s primary industry. Along the Gulf of
Mexico, conventional off-shore oil drilling continues to draw massive investment
from global corporations. In the American Southwest and Rocky Mountains, natural
gas is the subterranean resource of the day. Everywhere in the country, it seems,
wherever there is a valuable rock or substance beneath the earth’s surface, whether
related to energy production or not, there are companies looking to profit.
But at what cost? Fracking in particular has come under intense criticism from
environmental groups in recent years. Groundwater contamination, air pollution,
and dangerous gas leaks have all been observed in connection with the practice. In
addition, scientists believe there may be heath consequences to those living in and
around the areas where fracking occurs – infertility, birth defects, and cancer, to
name a few. But as environmentalists call for greater regulation, and as locals suffer
and even die, the industry moves ahead and the mining companies rake in profits.
What’s more, there are jobs to be had, whether in fracking, or coal mining, or
working on an oil rig, or doing anything else connected to an ongoing, successful
natural resource operation.
At one point not too long ago, even the promise of jobs and cheap energy would not
have been enough to overcome the protections of the Federal Environmental
Protection Agency, as well as the various regulatory bodies and laws in place in each
in individual state. If mining promised to cause serious, irreversible environmental
damage, the EPA was supposed to say so, and to deny the mine’s permission to
operate. Likewise, if a company arrived in a given state proposing an undertaking
that threatened the wellbeing of the citizens, state governments were empowered to
refuse permission to move ahead.
The paradigm has changed, however, and the days of governmental protection from
unscrupulous mining companies may now be in the past. Because recently, mining
companies began to wonder: why bother complying with laws when we can just pay
to have the laws changed altogether, and even write the new laws ourselves? Why
should a company such as GTC, for instance, worry about Wisconsin’s long tradition
of environmental conservation when an aggressively unconcerned Republican
Governor and a Republican state legislature was encouraging them to make their
own rules on the spot?
-In late 2011, the Wisconsin Legislature introduced a new mining bill aimed at
dramatically altering the legal and regulatory environment surrounding iron mining
in Wisconsin. The timing of the proposed bill was no coincidence. Governor Scott
Walker had taken office in 2010 promising to turn Wisconsin politics decidedly to
the right. Funded by the infamous Koch brothers of Kansas, Walker announced that
the state was “open for business,” backed a law stripping public employee unions of
collective bargaining rights, and took aim at various social welfare programs
designed to sustain the state’s poorest citizens. Walker pursued his policy goals with
the fervent backing of the Republican-held state legislature, as well, which meant it
was not entirely surprising when the 2011 mining bill became public.
What was surprising, however, was the extent to which GTC had been involved in
drafting a bill that in practice would apply solely to GTC and its efforts in the
Penokee Hills, where it had recently purchased a large tract of land. By December
2011, journalists and concerned citizens were left to wonder: who exactly wrote the
Wisconsin Assembly’s mining bill? The answer, it turned out, was not entirely clear,
but there was no doubt that GTC had been heavily involved.
The bill was written over the course of several months at the direction of five
Republican state legislators, whose staffs worked in close consultation with GTC.
Although official records do not detail the precise extent of GTC’s collaboration, all
parties involved acknowledged that GTC – which claimed its mine would generate
$1.5 billion (€1.15) in revenue – was involved. It is worthwhile to note that it was
not illegal for GTC to offer input on the bill, and indeed Wisconsin Republican’s
defended GTC’s role as a relevant party to the legislation. However, leading
environmental groups were not consulted and a review of the bill suggests that
GTC’s assistance in drafting a bill that would then govern GTC was quite extensive.
Following the bill’s introduction, environmentalists and other concerned citizens
began to express outrage at some of the changes proposed. To name a few of the
bill’s proposed effects:
-Removing protections for wetlands deemed Areas of Significant Natural Resource
Interest
-Weakening wetland mitigation requirements and allow superficial mitigation
efforts to be considered as roughly equal to full restoration
-Allowing mining companies to cause significant environmental impact on all
streams and bodies of water not deemed to be part of the Great Lakes or the
Mississippi River Basin
-Requiring the Wisconsin Department of Natural Resources (DNR) to consider
‘economic benefits’ when deciding whether to issue water withdrawal permits
-Stripping the Wisconsin DNR of authority to monitor mining sites for
environmental risks
-Removing the requirement that mining companies and the DNR study the nature
and depth of ‘overburden’ on streams and bodies of water created by mining waste
-Allowing waste piles to be 50% taller than under preexisting law, as well as to be
placed in flood plains and shorelands
-Removing the requirement that waste sites be placed, if possible, in areas that
minimize environmental damage
-Limiting the period of DNR permit review to less than a year
-Removing the requirement that mining companies share data collected during their
own environmental studies that could reflect negatively on the environmental
impact of a proposed mine
-Requiring that the DNR treat the scientific findings submitted by mining companies
as sufficient to complete a mining permit application, even when the findings are
incomplete and/or inaccurate
-Exempting companies from mining taxes
Given that the bill threatened to obliterate the existing regulatory scheme and allow
for extensive mine-related pollution, the Democratic response was immediate and
vocal. In turn, it soon became apparent in early 2012 that the bill would not become
law in its original form. So GTC did what mining companies have grown accustomed
to doing all across the United States: it posted a large sign in the Wisconsin Capitol
Building announcing that it was leaving Wisconsin and never coming back – and
taking the promises of jobs and money with it - unless the state legislature produced
a law that was sufficiently GTC-friendly.
Over the next year, Democratic legislators continued to voice opposition to the
original bill while Republicans refused to offer meaningful compromise on key
environmental issues. When a bi-partisan group of legislators produced an alternate
bill, which would still have allowed for GTC’s proposed mine following regulatory
and public approval, it was rejected by the Republican majority. Meanwhile, a group
of Republicans split off to secretly marshal support for a practically unchanged
version of the original bill, which they re-introduced in March 2013. On March 11,
2013, Wisconsin Act 1 – virtually the same piece of legislation that was drafted after
extensive ‘consultation’ with GTC in 2011 – became law.
With the legislative work done, the only remaining opposition to the law, and the
mining the law seeks to enable, comes in the form of the Bad River Ojibwe, the
American Indians who have lived in and around the Penokee Hills since before
European settlement. Of course, U.S. history offers a fairly grim picture of what
happens when corporate business interests come into conflict with native rights.
And the current situation in Wisconsin threatens to be no different, as the GTC mine
would appear to come into direct conflict with notions of tribal sovereignty and preexisting treaties between the government and the Bad River Ojibwe.
The legal status of native American tribes in the USA is rather unique in that the
tribes maintain their own police, schools, and courts subject only to federal
government authority and not governed by the individual states. As the issues
relating to the Gogebic mining proposal are being legislated by the State of
Wisconsin for the area that is next to but not near the Bad River Band of the
Ojibwe’s reservation, the focus of legal attention has been on the state law.
The Bad River Band of the Ojibwe, headed by Chairman Mike Wiggins, has major
reservations about the fast paced legislative moves to undercut both the legislative
process and the appropriate testing to determine potential environmental damage
to the watershed area and the reservation lands. In 2011, the Bad River Band
became the third Wisconsin tribal community to seek authority from the federal
government under the Environmental Protection Agency to set water quality
standards for the reservation on the shore of Lake Superior. This power also allows
the tribe to control pollution limits on other land outside the reservation that could
harm tribal rivers, streams and wetlands. In August of 2013, Chariman Wiggins and
five other tribal leaders petitioned President Obama to direct the Department of the
Interior to prevent thte construction of the Gogebic mine. That request is currently
pending. However, the federal response may be promising as the EPA has just
refused a Wisconsin Department of Natural Resources request to jointly (do
something-look it up) because of the disparity between Wisconsin’s new mining
requirements and the stricter mining controls under the federal government.
Central to the Ojibwe claim is the issue of testing the rocks in the area for
environmentally dangerous minirals and for testing the effects of the extracting
process on the water. The local tribes are interested in the testing and results and
Gtac appears to be interested in keeping those private. Access or restricting
accessto the area is an important issue. In May 2013, the Lac Courte Oreilles (LCO)
Band of Ojibwe began to occupy their harvest camp in a five mile area, exercising
rights they claim under an 1842 treaty with the U.S.
The Wisconsin legislature responded by introducing another bill that would
establish an exclusionary zone around the proposed mining site, while GTC reacted
by hiring armed guards to keep citizens off the land under the threat of injury and
even death. When it was discovered that the guards did not have permits to carry
weapons in Wisconsin, they briefly departed, only to return shortly thereafter with
now-legal weapons in hand.
For now, the Penokee Hills remain the wilderness that they have been for centuries,
but GTC would like to change that as soon as possible. Increasingly, as various statefederal issues work out and the company continues to prepare to break ground, it
seems only a matter of time before open pit iron ore mining becomes the defining
trait of the region. But there is still hope. Though the law has been enacted, the Bad
River Tribe and a number of lawyers are working together to oppose the GTC mine.
Should their efforts fail – and provided the U.S. government does nothing to stop the
mine - streams will be diverted, polluted, and potentially eliminated altogether.
Wildlife populations will see their habitats altered and in some cases entirely
destroyed. Native peoples will find the wild rice fields that have nourished tribes
since time immemorial replaced by chemical runoff and industrial waste. And it will
all have been done under the auspices of a law vicariously drafted by the same
company the law was meant to regulate, a company that bought its way to the table
with money and promises of jobs and economic development.
At some point in 2011, the Penokee Hills of Northern Wisconsin went up for sale,
and GTC was happy to buy.
Wisconsin Act 1 can be found at
http://docs.legis.wisconsin.gov/2013/related/acts/1