GREEN BAY — In a courtroom filled with more attorneys than spectators, a federal judge heard oral arguments on the merits of legal action brought by the Menominee Indian Tribe of Wisconsin against two federal agencies regarding the wetlands permit issued for the Back Forty Mine in Menominee County. His decision is expected at a later date.

The tribe was represented in this action by Earthjustice attorneys Janette K. Brimmer and Stephanie K. Tsosie, whose office is located in Seattle, Washington, and Lindzey Spice, attorney for the Menominee Indian Tribe of Wisconsin in Keshena.

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers were represented by U.S. Department of Justice Trial Attorney Daniel R. Dertke of the Environmental Defense Section, Washington, D.C., and Michael A. Carter, assistant U.S. attorney of the U.S. Eastern District Court in Green Bay.

Also presenting arguments Wednesday was Dan Ettinger of Warner, Norcross & Judd, a law firm from Grand Rapids, Michigan, which represents Aquila Resources Inc., the Canadian company developing the Back Forty Mine Project.

He was assisted by Ashley G. Chrysler of the same law firm, and Ronald R. Ragatz, an attorney with DeWitt, Ross & Stevens of Madison, Wis.

Eastern District of Wisconsin Chief Judge William C. Griesbach presided over the hearing Wednesday, where Dertke, Brimmer and Ettinger presented their arguments.

The EPA and Army Corps of Engineers and Aquila have asked the court to dismiss the lawsuit brought by the Menominee Indian Tribe in January 2018, which contends the federal agencies should have exercised jurisdiction over the wetland permit granted to Aquila in June by the Michigan Department of Environmental Quality.

The wetland permit was the fourth and final permit issued by the MDEQ for the Back Forty Mine, and would allow the open pit mine and minerals processing facility to move forward with development on land that is located 50 yards from the Menominee River in Lake Township.

The tribe filed the lawsuit against the EPA and the Corps, claiming that the federal agencies abandoned their responsibilities to enforce stricter regulations under the Clean Water Act by allowing the State of Michigan to handle the wetland permit. Aquila Resources Inc. joined the case as a defendant intervenor, allowing its attorneys to be involved in the litigation.

Dertke was allowed to speak first and presented a defense for dismissing the case based on a position that the tribe missed its opportunity to challenge the decades-old agreement that allowed the state of Michigan to issue some Clean Water Act Section permits.

Dertke said any challenge should have occurred when the memorandum of agreement was struck between the MDEQ and the EPA in 1984, and said the Menominee Tribe, which has historical ties to that area along the Menominee River, should have known about the agreement at the time.

Judge Griesbach said he found that claim “troubling” since there was no talk of a mine in the 1980s, “and no permit then.” He asked how the Menominee Tribe could have known and intervened without that knowledge.

“The Menominee Tribe knew how important the Menominee River is (to them) and could have been aware and commented,” Dertke said.

Griesbach said Aquila Resources “did not exist” in the 1980s, nor did a plan to mine on the river.

Later, Brimmer said the Menominee Tribe had been disbanded from 1954 to 1979, when it established its first seated government, and questioned how they could “look 30 years out” and see the potential problems an agreement between the then-Michigan Department of Natural Resources and the EPA could cause in the future.

At one point, Griesbach said he was being given a scenario that “20 to 30 years prior” to a mine being proposed and MDEQ issuing a permit, the tribe “didn’t foresee specific issues. It strikes me as unfair and very bizarre,” he said, adding that it may be the law, but it didn’t appear to be fair.

Only two states in the country have developed a memorandum of agreement with the EPA and Army Corps of Engineers to oversee Clean Water Act permits — Michigan and New Jersey.

Brimmer said the tribe’s concern about the MDEQ acting alone in issuing the permit is that it was not required to provide the same safeguards to the environment, one of which was consideration of a site of Native American heritage that has not yet been registered under the National Historical Preservation Act. The EPA would consider that, “but it is not mirrored in state law,” she said.

The tribe contends that the EPA and the Corps have a responsibility to issue the permit, not just comment on it, given that the stretch of the Menominee River included in the area where the mine would be constructed are waters that are used for interstate commerce.

Ettinger, the Aquila Resources attorney, said the state followed a process for all four permits that involved the EPA, the Corps and the U.S. Fish and Wildlife Service. “They filed objections,” he said of those agencies’ response to the wetland permit application. Aquila’s original 2015 application was withdrawn after meeting with the MDEQ, and refiled in 2017, when it was again shared with the federal agencies.

“The EPA, in March, cited objections to the DEQ, and in May, the DEQ answered,” Ettinger said. “In June, the DEQ issued the final permit with numerous conditions. It was a 2 ½-year process with extensive DEQ oversight,” he said, adding that the permit was “federalized” and that would only happen if the law was “as rigorous as federal law.”

He said representatives of the Menominee Tribe had been a part of the “scoping meetings” over that 2 1/2-year period, “and the issue of whether or not the state should have authority was never raised. Two and one-half years later, they are calling out the state jurisdiction.”

Dertke was asked by the judge to provide more documentation to his contention that the section of the Menominee River under consideration was not considered navigable waters for interstate commerce, despite the tribe’s submission of a report written by a Corps attorney that described it as such. He said there were differences between designations on bodies of water in federal regulations.

“They (the tribe) said the Corps made a decision, but this was a recommendation that was not accepted,” Dertke contended.

Brimmer said the designation assigned to that section of the river, under the federal regulations, still exists. “With rivers and harbors, once a Section 10, always a Section 10,” she said.

Both Ettinger and Dertke said the request to invalidate the permit would mean declaring the agreement between the EPA and the state of Michigan was illegal, which they contended would have to be sought in a different legal matter.

Griesbach asked if the tribe was seeking that federal government be tasked with issuing the permit.

“That’s what you want — that they wouldn’t have a permit?” he asked Brimmer.

“Yes,” she answered.

Griesbach asked the attorneys for the EPA and the Corps, in consultation with the Aquila attorneys, to supply him with additional documentation over the next week, and said he would give the tribe’s attorney a week after that before making his decision.

“This is a very unusual case,” he said. “Quite unique.”

After court recessed, Menominee Tribal Chairman Doug Cox said that the tribe is currently involved in a contested case before an administrative law judge in Michigan regarding the mine permit. Brimmer said the tribe will file another contested case Friday regarding the wetland permit.