GREEN BAY — A federal judge has dismissed the lawsuit brought by the Menominee Indian Tribe of Wisconsin against the EPA, Army Corps of Engineers and Aquila Resources Inc.

U.S. District Court Chief Judge William Griesbach issued his ruling Wednesday after hearing oral arguments from both sides in his Green Bay courtroom Aug. 1 and requesting additional information after the hearing.

Griesbach’s ruling dismisses the challenge by the Menominee Tribe that the United States Environmental Protection Agency and the U.S. Army Corps of Engineers failed to exercise their jurisdiction over a wetlands permit sought by Aquila Resources as part of the Back Forty Mine project in Menominee County.

The wetlands permit sought by Aquila was issued by the Michigan Department of Environmental Quality, which had been given authority in 1984 by the EPA and the Corps to issue Section 404 permits in the state. The only other state with that authority to issue Section 404 permits is New Jersey.

The tribe argued that Michigan should not be allowed to have sole authority on boundary waters and claimed that the EPA and the Corps had a “mandatory duty under the (Clean Water Act) to assume jurisdiction ...” Both the EPA and the Army Corps were involved in reviewing the wetlands permit, and filed their reports and objections with the MDEQ. After additional information was provided by Aquila to the EPA, that agency withdrew its objections based on an understanding that the MDEQ would specify conditions that needed to be met by the company in order to receive the permit.

After the Aug. 1 hearing in the Eastern District of Wisconsin court, the tribe amended its motion to have the wetlands permit denied — adding motions that the EPA’s withdrawal of its initial objections to the permit, as well as the EPA’s failure to consult with the Menominee Tribe pursuant to the National Historic Preservation Act, were “arbitrary and capricious and contrary to law.”

Griesbach ruled against the amended complaint, stating as to an alleged violation of the NHPA by the EPA, that a private company and not the federal agency is involved in the project. “The Federal Defendants were therefore not required to initiate consultation with the Tribe ...”

He also stated that the court “lacks subject matter jurisdiction over the Menominee Tribe’s CWA claim against the Corps” and added that, even if the court had jurisdiction, the tribe failed to identify a duty that had not been performed as required.

Griesbach went into detail about correspondence between the tribe and the Corps and the EPA, and found that those letters did not constitute “final agency action” but reiterated “that the EPA approved Michigan’s permitting program in 1984 and that the Federal Defendants would not exercise jurisdiction over the permit as a result. In other words, the Tribe was left with remedies available to it under Michigan law.”

Griesbach denied the tribe’s motion to amend and dismiss the permit and granted the federal defendants’ and Aquila’s motions to dismiss the tribe’s lawsuit.

Aquila Resources issued a statement Thursday, stating that “the court held that the tribe could not challenge the federal government’s refusal to exercise jurisdiction over the Wetlands Permit under the Administrative Procedures Act or the Clean Water Act.

“Aquila will continue its efforts with the State of Michigan and local communities to demonstrate our commitment to environmental responsibility and sustainable resource development that benefits all stakeholders. The Back Forty Mine will be a safe, disciplined operation that promotes and supports local community socio-economic development and is protective of the environment.”

The Menominee Indian Tribe of Wisconsin and attorneys with EarthJustice were contacted by the EagleHerald, but did not respond by presstime.