MENOMINEE — The Menominee Indian Tribe of Wisconsin has put the federal government on alert in regards to Aquila’s Back Forty Mine project: It intends to sue.

Janette Brimmer, the attorney with Earthjustice who is representing the tribe on violations under the Clean Water Act, said a 60-day notice is required with a citizen suit. The Notice of Intent to Sue was filed on Monday with the U.S Environmental Protection Agency and U.S Army Corps of Engineers.

Earthjustice is a nonprofit environmental law organization with attorneys representing cases throughout the country; they represented the Standing Rock Sioux Tribe in the fight against the Dakota Access Pipeline.

There are certain treaty and trust protections that are made available to the tribe through federal law, said tribal chairman Gary Besaw. Those protections aren’t being met while the proposed mine application goes through the State of Michigan.

“If this stays as delegated to the state action, then none of these treaty and trust responsibilities and protections are afforded to us,” Besaw said.

There are several worries both on protecting archeological, historical and cultural sites along the river as well as the concerns over potential pollution from the mine.

Protections can only be enacted if federal protection is connected to the project, Besaw said.

“When we went to the state, the state of Michigan said, ‘we didn’t make treaties with you,” he said. “Somehow these protections disappeared and that’s wrong.”

Furthermore, Besaw said Aquila is trying to classify only a few burial mounds along the river and that’s untrue.

“It’s much more than that,” he said. “It’s a full cultural landscape. This is a full village site you’re looking at digging into.”

During the 60-day time frame allotted with the intent to sue, the Corps of Engineers and the EPA could feasibly work something out with the tribe and the issue wouldn’t have to accelerate into a lawsuit, said Brimmer.

“It is conceivable,” she said. “The EPA/Corps could say, ‘you guys are right on the law and we will take over this.’”

“The tribe is willing to continue to talk to all the agencies involved,” Brimmer added.

However, that isn’t usually what happens, she said.

“Frequently what’s happened is we’re just ignored,” Brimmer said. “But then we can file a lawsuit if we so choose.”

The point, however, is that it needs to be handled with federal oversight, said Besaw. There are greater protections and less risk if the federal government handles the mining application.

“Everybody should be screaming at the top of their lungs that we should reduce risk,” Besaw said. “There has never been a sulfide mine that hasn’t polluted.”

Full federal control and regulation over the project is the answer, and that’s what’s mandated in the Clean Water Act, he said.

“We’d like them to assume primary control and jurisdiction over the application process,” Besaw said. “We would love it if they told Aquila their application is insufficient.”

Within the Clean Water Act, the part that regulates wetlands — including digging up or dumping into them — also normally affords the Corps and EPA objecting power, however, in some instances a state can apply for sole control, Brimmer said. Only two states have done that: Michigan and New Jersey.

However, the problem is the Menominee River is an interstate waterway, Brimmer said.

“It’s used in commerce and recreation,” Brimmer said. “And it empties into the Great Lakes.”

The Menominee River also borders Wisconsin. This is more than a one-state issue and as such needs to be addressed as one for the environmental implications, said Besaw.

“If and when the acid mine drainage starts, when that comes out into the groundwater, it just doesn’t stay on the Michigan side,” Besaw said. “It will also go on the Wisconsin side.”

Or worse. The pollution could seep into the Great Lakes and affect other border states or even Canada, he added.

“Why should one state have that full authority to make the decisions if it affects other states?” he said.

The Notice of Intent to Sue states:

“The Menominee River for its entire length is an interstate river, forming the border between the States of Wisconsin and Michigan and is a water which is presently used, or is susceptible to use, in its natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to its ordinary high water mark including wetlands adjacent thereto.

"The Corps’ own study in 1979 and subsequent recommendation by its counsel finds this to be true, beginning with extensive use of the Menominee River and its tributaries for commerce associated with logging and power generation through present day use for recreation, tourism and fishing.

"The entirety of Menominee River and its adjacent wetlands are not delegable, nor could they have been delegated, to the State of Michigan for Section 404 permitting and therefore the State of Michigan cannot exercise Section 404 jurisdiction for the Back Forty Project permitting.”

For further information or to read the Notice of Intent to Sue, visit earthjustice.org, under press releases: "Menominee Tribe takes action to protect its namesake river."