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MDNR case re-opened


April 20, 2009

Contact: Michelle Halley – NWF – 906-361-0520
Judge re-opens challenge to mining company lease

MDNR lease of state land to Kennecott to be reconsidered

 (LANSING, MI) –  A Lansing judge will now examine the validity of a surface land lease granted by the Michigan Department of Natural Resources to Kennecott Eagle Minerals Company, the court announced on Thursday. This decision reverses the judge’s March 3 dismissal of the same challenge. Ingham County Circuit Court Judge Paula Manderfield granted a motion by the National Wildlife Federation and its partners to reconsider the question of whether the MDNR violated its “Public Trust responsibility” when it granted a surface lease to KEMC.

 According to the Public Trust Doctrine, the MDNR is responsible for holding and managing public resources for the good of the public, maintaining public access whenever possible and protecting the resources for existing uses. In its motion for reconsideration, NWF identified a variety of publicly-owned natural resources at stake, including the rare Coaster Brook Trout, tribally-significant Eagle Rock, and public recreation lands on the Yellow Dog Plains.

 “Despite the unique nature of the land and water at the site, DNR has leased the surface rights to the Kennecott to develop surface facilities for a nearby mine, in contradiction to its Public Trust responsibilities,” according to the NWF brief. Michelle Halley, an attorney for the National Wildlife Federation, said plaintiffs had asked the judge to reconsider the matter because “this was an original action and its dismissal seemed to come as a result of it being swept up with another appeal. In our brief, we demonstrated that the questions surrounding the Public Trust Doctrine have not been fairly considered as yet. This case exemplifies the
state’s breach of its Public Trust responsibilities, and now we have an opportunity to set that right.”

 The judge’s ruling puts the issue back on the court docket this June, when Manderfield will hear arguments regarding summary disposition of the challenge. If NWF is successful, the challenge will move forward to an evidentiary hearing.

 In addition to this proceeding, NWF and its partners – Keweenaw Bay Indian Community, Huron Mountain Club, and Yellow Dog Watershed Preserve – are awaiting word from a state administrative law judge regarding their legal challenges of mining and ground water discharge permits issued by the Michigan Department of Environmental Quality. The proposed mine is effectively stalled while these legal proceedings, a decision regarding additional permits by the U.S.
Environmental Protection Agency, and the potential endangered species listing of the Coaster Brook Trout by the U.S. Fish & Wildlife Service are unresolved.