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Thursday, October 23, 2014 |  Madison, WI: 39.0° F  Fair
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Legal challenges expected if Wisconsin mining bill passes
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Wiggins: The Bad River Band will 'look at the legal realm and do whatever is necessary to protect ourselves too.'
Wiggins: The Bad River Band will 'look at the legal realm and do whatever is necessary to protect ourselves too.'
Credit:Bad River Band of Lake Superior Chippewa Tribe

Republicans may be fast-tracking mining legislation, but legal challenges are expected soon after signing.

Litigation is so anticipated, in fact, that the bill includes a fiscal note from the Department of Justice requiring that funds be set aside to defend against "legal challenges," as well as to prosecute "law violations" related to mining.

"The only jobs created by their bill are going to be for lawyers," jokes Sen. Tim Cullen (D-Janesville), who has authored competing mining legislation.

Mike Wiggins, Jr., chairman of the Bad River Band of Lake Superior Chippewa, anticipates that environmental groups and citizens groups will first sue regarding "violations of the Wisconsin Constitution and the public trust doctrine."

But he says his tribe, whose reservation occupies the northern portions of Ashland County, downstream of the proposed site of the Gogebic Taconite mine, will also "look at the legal realm and do whatever is necessary to protect ourselves too."

Sen. Tom Tiffany (R-Hazelhurst), one of the sponsors of Senate Bill 1 and Assembly Bill 1, says "there is no reason for a lawsuit."

"We think our bill is very sound," he adds. Amendments to the bill will be introduced at a Monday afternoon news conference.

Assembly and Senate Republicans introduced new ferrous (iron) mining legislation on January 18, which closely resembles a mining bill that failed to pass the Senate by one vote last year. An all-day public hearing on January 23 ended before all registered speakers had a chance to testify.

The bill lifts the current moratorium on mining, attempts to streamline the Department of Natural Resources permitting process, and sets new standards and protections for water and air -- standards that remain contentious.

The mining bill would potentially fast track a large taconite mine project in Iron and Ashland Counties, proposed by mining company Gogebic Taconite, which supporters say will create jobs and opponents say will damage local ecosystems.

Dennis Grzezinski, senior council for the Midwest Environmental Advocates, a non-profit environmental law firm, says opponents have not yet committed to challenging the proposal because it is still in flux. Mining committee members are, he says, "committed to altering it in unspecified ways."

But Grzezinski says the bill could conflict with current federal environmental laws, treaties with Native American tribes, treaties with Canada, and the public trust doctrine in the state Constitution that declares the waterways belong to the public.

Richard Monette, a UW-Madison law professor, says that there may also be civil rights and environmental justice lawsuits on the grounds that the law (or subsequent mines) would adversely affect one group -- namely, the downstream tribes who rely on the watershed for drinking water, supporting wild rice crops and sustaining hunting grounds.

But Monette points out that challengers need "resources and wherewithal."

"It's costly," says Monette. "If no one has the resources, then there won't be a lawsuit."

Wiggins admits that the cost of litigation could be a roadblock for the Bad River Band.

"I think it's going to be very complicated, and it's going to be a challenge. Obviously there's a tremendous amount of mining machine money driving this effort, and we're a poor tribe," says Wiggins.

Tiffany maintains that the legislation does not need to be litigated. "In Wisconsin we have a few people who are simply anti-mining."

He says the mining committees are thoroughly considering the testimony from last week's hearing, and reviewing Cullen's bill.

Cullen says the biggest difference between his bill and the Republican proposal is in the treatment of waste rock, which must be removed for the mining company to access the ore. Cullen's bill prohibits the "millions of tons of waste rock" from being deposited into local waterways.

Wiggins says he has no opinion at this time on Cullen's mining bill. But he is concerned about toxins from the munitions used to blast away waste rock, and the sulfides present in that waste rock that could run off and enter the watershed.

Tiffany says a few concepts from Cullen's bill will be incorporated into the Republican bill.

"Fifty years ago we should have done a better job protecting the environment. But we've learned," says Tiffany, adding that a goal of current legislation is to "maintain Wisconsin's environmental standards."

But to environmental groups and the Bad River Band, the protections in the current bill are not enough.

The Assembly and Senate mining committees are scheduled to vote on Tiffany's bill Wednesday. The bill is expected to be approved in committee and by the full Legislature. Gov. Scott Walker has said he will sign a "reasonable" mining bill.

"I do believe the mining bill will pass," says Cullen, noting the Republican majorities in the Assembly and Senate. "The question is: how many changes can we make before it passes?"

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