Fond Du Lac Band of Lake Superior Chippewa v. Wheeler

• Decision Date: 16 February 2021
• Docket Number: Case No. 19-CV-2489 (PJS/LIB)
• Court: U.S. District Court — District of Minnesota
• Parties: FOND DU LAC BAND OF LAKE SUPERIOR CHIPPEWA, Plaintiff, v. Andrew WHEELER, Administrator of the Environmental Protection Agency; United States Environmental Protection Agency ; Samuel L. Calkins, District Engineer, St. Paul District, U.S. Army Corps of Engineers; Ryan D. McCarthy, Acting Secretary of the Army; U.S. Army Corps of Engineers; Kurt Thiede, Region 5 Administrator, Environmental Protection Agency, Defendants, Poly Met Mining, Inc., Intervenor Defendant.

519 F.Supp.3d 549

FOND DU LAC BAND OF LAKE SUPERIOR CHIPPEWA, Plaintiff,

v. Andrew WHEELER, Administrator of the Environmental Protection Agency; United States Environmental Protection Agency ; Samuel L. Calkins, District Engineer, St. Paul District, U.S. Army Corps of Engineers; Ryan D. McCarthy, Acting Secretary of the Army; U.S. Army Corps of Engineers; Kurt Thiede, Region 5 Administrator, Environmental Protection Agency, Defendants,Poly Met Mining, Inc., Intervenor Defendant.

Case No. 19-CV-2489 (PJS/LIB)

United States District Court, D. Minnesota.

Signed February 16, 2021

Matthew L. Murdock, SONOSKY, CHAMBERS, SACHSE, ENDRESON & PERRY, LLP; Vanessa L. Ray-Hodge, SONOSKY, CHAMBERS, SACHSE, MIELKE & BROWNELL, LLP; Sean W. Copeland, Tribal Attorney, FOND DU LAC BAND OF LAKE SUPERIOR CHIPPEWA, for plaintiff.

Benjamin J. Grillot and Shaun M. Pettigrew, UNITED STATES DEPARTMENT OF JUSTICE; David W. Fuller, UNITED STATES ATTORNEY'S OFFICE, for defendants Andrew Wheeler, United States Environmental Protection Agency, Samuel L. Calkins, Ryan D. McCarthy, U.S. Army Corps of Engineers, and Kurt Thiede.

Jay C. Johnson, Kathryn A. Kusske Floyd, and Katherine Sochacki, VENABLE LLP; Monte A. Mills and Davida S. McGhee, GREENE ESPEL PLLP, for intervenor defendant Poly Met Mining, Inc.

ORDER

Patrick J. Schiltz, United States District Judge

Plaintiff Fond du Lac Band of Lake Superior Chippewa ("the Band") brings this action against the Environmental Protection Agency ("EPA"), the U.S. Army Corps of Engineers ("the Corps"), and various agency officials (collectively "the federal defendants"), seeking review of certain agency actions relating to permitting for a proposed mining project. Poly Met Mining, Inc. ("PolyMet"), the developer of the proposed project, intervened as a defendant.

This matter is before the Court on defendants’ motions to dismiss the first four counts of the Band's nine-count amended complaint. For the reasons that follow, the motions are granted in part and denied in part. Specifically, the Court grants defendants’ motions as to the Band's first cause of action and dismisses that count without prejudice. The Court also grants in part defendants’ motions as to the Band's fourth cause of action and dismisses that count with prejudice insofar as it seeks relief against the Corps. Defendants’ motions are denied in all other respects.

I. BACKGROUND

The amended complaint alleges the following, which the Court must accept as true for purposes of ruling on the pending motions:

A. The Band

The Band is a federally recognized Indian tribe and member band of the Minnesota Chippewa Tribe. Am. Compl. ¶ 17. The Band's reservation is in northeastern Minnesota within the St. Louis River basin. Am. Compl. ¶ 17. The Band also retains hunting and fishing rights in land that it ceded under the 1854 Treaty of LaPointe. Am. Compl. ¶¶ 29–30.

The Band is considered a "State" for purposes of the Clean Water Act. Am. Compl. ¶ 4; see 33 U.S.C. § 1377(e). In 2001, EPA approved the Band's water-quality standards. Am. Compl. ¶ 4. Since then, the Band has implemented a water-quality monitoring and protection program, which has confirmed that reservation waters are meeting the Band's water-quality standards except with respect to mercury. Am. Compl. ¶¶ 4, 85, 93. Mercury is of particular concern to the Band, as it accumulates in fish. Am. Compl. ¶ 4. Band members rely on fish for subsistence and cultural practices, but fish in the reservation's waters are so high in mercury that they cannot safely be fed to children. Am. Compl. ¶¶ 4–5. The Band has also had to issue advisories recommending that Band members limit consumption of traditional fish species. Am. Compl. ¶ 82. The primary source of mercury in the fish is waste from existing mines in the vicinity of the proposed mining project. Am. Compl. ¶ 83.

B. The NorthMet Mining Project

PolyMet's NorthMet mining project would be Minnesota's first copper-nickel-platinum mine. Am. Compl. ¶ 66. The mine's proposed location is approximately 70 miles upstream from the Band's reservation and within the territory ceded by the Band in 1854. Am. Compl. ¶ 66. The mine site is 3,016 acres and includes approximately 1,311 acres of pristine, high-quality wetlands. Am. Compl. ¶ 70. At present, there is no known contamination by hazardous materials at the mine site, which until 2017 was managed as part of the Superior National Forest. Am. Compl. ¶ 71.

According to the Corps, the project would directly impact over 900 acres of wetlands and indirectly impact nearly 27 more. Am. Compl. ¶ 72. The proposed dredge and fill activities would result in the largest permitted destruction of wetlands in Minnesota's history. Am. Compl. ¶ 73. The wetlands are dominated by peat bogs, the destruction of which will release significant amounts of mercury and affect the Band's downstream water quality. Am. Compl. ¶¶ 73, 112, 234.

C. Permits

The Clean Water Act prohibits the discharge of pollutants from a "point source" into "navigable waters" without an appropriate permit. 33 U.S.C. §§ 1311(a), 1362(12). In this lawsuit, the Band challenges EPA's and the Corps's actions with respect to two such permits issued to PolyMet: (1) a National Pollutant Discharge Elimination System permit ("NPDES permit"), see 33 U.S.C. § 1342 ; and (2) a permit issued under § 404 of the Clean Water Act, 33 U.S.C. § 1344 ("§ 404 permit").

1. NPDES Permit

Under the Clean Water Act, EPA can allow a state to administer its own NPDES permitting program for discharges into navigable waters within its jurisdiction. 33 U.S.C. § 1342(b). In 1974, EPA granted Minnesota permission to administer such a program, which is run by the Minnesota Pollution Control Agency ("MPCA"). Am. Compl. ¶¶ 42, 45. A state that administers its own permitting program must enter into a memorandum of agreement with EPA that governs implementation of the program. Am. Compl. ¶ 45; see 40 C.F.R. § 123.24(a), (b). Minnesota's memorandum of agreement provides that, if EPA determines that a permit application is incomplete and identifies the deficiencies to MPCA in writing, MPCA cannot process the application until the deficiencies are corrected and EPA has informed MPCA in writing that the application is complete. Am. Compl. ¶ 141.

A state-run NPDES program must notify EPA of every application for an NPDES permit that the state receives and every action that the state takes with respect to such an application. 33 U.S.C. § 1342(d)(1). EPA retains the right to prevent a permit from issuing by objecting in writing that the permit is "outside the guidelines and requirements" of the Clean Water Act. Id. § 1342(d)(2). At the same time, EPA has the express authority to waive its right to object. Id. § 1342(d)(3).

EPA Region 5, the regional office responsible for Minnesota and several other states, has a regular practice of identifying certain permits for review each year. Am. Compl. ¶ 130. When it selects a permit for review, Region 5's regular practice is to provide written comments during the public-comment period. Am. Compl. ¶ 132. Shortly after PolyMet applied to MPCA for an NPDES permit in July 2016, MPCA was informed by EPA that it would review the proposed permit. Am. Compl. ¶¶ 135–36.

Early in the permitting process, MPCA personnel communicated to EPA that MPCA did not want EPA to submit anything in writing. Am. Compl. ¶¶ 134, 137. MPCA also pressured EPA in other ways; for example, MPCA asked EPA to avoid using words like "deficiency" and "significant" in written communications, and MPCA pressured EPA not to submit comments during the public-comment period. Am. Compl. ¶¶ 139, 148–51, 155. EPA initially resisted this pressure; in fact, EPA submitted a letter describing deficiencies in PolyMet's application and telling MPCA that Region 5 would review and provide written comments on the draft NPDES permit. Am. Compl. ¶¶ 138, 140, 142, 144, 149–50.

In December 2017, President Trump appointed Cathy Stepp as regional administrator for Region 5. Am. Compl. ¶ 145. Defendant Kurt Thiede became Stepp's chief of staff. Am. Compl. ¶ 145. MPCA asked Thiede that EPA not submit written comments during the public-comment period. Am. Compl. ¶ 155. Career staff at Region 5 told Thiede that it was standard practice to submit written comments on draft NPDES permits during the public-comment period. Am. Compl. ¶ 156. Although EPA prepared a letter identifying issues with the draft permit, EPA never submitted it. Am. Compl. ¶¶ 158–62. Instead, on March 16, 2018, the last day of the public-comment period, Thiede and MPCA agreed that MPCA would develop a "pre-proposed permit" for EPA's review. Am. Compl. ¶¶ 164–65.

By the end of September 2018, either Thiede or Stepp made clear to Region 5 career personnel that EPA would not object to Polymet's NPDES permit regardless of any scientific, technical, or legal concerns. Am. Compl. ¶ 168. In November, a Region 5 career manager informed the Band that EPA would not be submitting comments on or objecting to the permit. Am. Compl. ¶ 169. Career personnel wrote a memo to the file dated December 18, 2018, documenting unresolved issues in the NPDES permit. Am. Compl. ¶¶ 172–73, 175, 178. Ultimately, EPA did not object to the proposed permit, and MPCA issued the permit to PolyMet on December 20, 2018. Am. Compl. ¶ 180.

The permit authorizes PolyMet to discharge polluted wastewater into creeks that flow into the Embarrass and Partridge Rivers, which are headwaters of and tributaries to the St. Louis River. Am. Compl. ¶¶ 67, 78. As noted, the Band's reservation lies within the St. Louis River basin. Am. Compl. ¶ 17. In addition, the permit subjects the mine's wastewater-treatment system to internal state operating limits rather than to water-quality limits under the Clean Water Act. Am. Compl. ¶ 79. The permit is currently under review by the Minnesota Court of Appeals. Am. Compl. ¶¶ 181, 185, 187; Mills Decl. ¶ 2 & Ex. A (Ramsey County district court's findings of fact, conclusions of...