Curtis: Flambeau mine a useful example in current debate

Since 1998, a moratorium on permits for sulfide ore mining has firmly been in place in Wisconsin. The state already has comprehensive mining laws on the books to responsibly regulate the industry — the moratorium has simply prevented these laws from being used.

In 2013, Sen. Tiffany (R-Hazelhurst) led the effort to provide flexibility for iron mining operations.  However, the restriction on sulfide mining, which includes the mining of copper, remains. Recently, Tiffany and Rep. Rob Hutton (R-Brookfield) introduced the "Mining for America Act," which would eliminate the moratorium on metallic mining.

Unfortunately, but predictably, environmental groups oppose the proposal. The John Muir Chapter of the Sierra Club issued a statement condemning the “mining giveaway bill.”  Among other incendiary comments, the club noted that the Flambeau Mine, one of the key examples cited by the bill’s authors of a mining operation that operated safely and successfully prior to passage of the moratorium, “was found to have violated the Clean Water Act” in a 2012 decision issued by federal Judge Barbara Crabb. The position has been parroted in numerous commentaries.

But a closer look reveals that the Flambeau Mine operated safely and that the lower court opinion, ostensibly finding a violation, was ultimately reversed by the Seventh Circuit Court of Appeals, a fact deceptively omitted by the club and other opponents.

The Flambeau mine never exceeded discharge limits when it was in operation.  After the mine closed, the town of Ladysmith asked the mine owner to donate certain buildings for economic development. Because retaining the buildings made reclamation more complicated, the owner installed a biofilter to treat water run-off. In a case brought by environmental activists, the district court found sufficient evidence to prove that copper was discharged from the biofilter.

The judge noted “(t)he amounts were so modest that I would declare them de minimis” and that it was not possible to conclude that the discharges were attributable to mining.  The district judge, however, read the Clean Water Act to prohibit even this amount.

In imposing a “pro forma penalty”, a mandatory light slap on the wrist, the court described the discharges as slight and the company’s “exemplary efforts to protect the environment during its mining operations and reclamation effort.”  Going on, the court declared “(t)hese efforts deserve commendation, not penalties.”  At one point in the decision, the court noted that “the water failed the bioassay tests because it was so clean it left nothing for organisms to live on.” 

In applying the penalty standard, the court noted that the company had no obligation to donate land and buildings to the municipality and obtained no economic benefit from doing so.  In fact, the court concluded doing so subjected the company to more stringent monitoring.  Even then the judge found that “(p)laintiffs have failed to show that any violation was serious in nature.”  None of the water measured in the outlet discharges “came close to meeting or exceeding the copper … limit … that the DNR has imposed on defendant.”

Let that sink in for a moment. Not only was the company under no obligation to essentially donate its buildings to the city for economic development purposes but by doing so, it was actually subjecting itself to the terms of the more stringent mining permit.

In a final stunning rebuke, the court denied the plaintiffs’ request for attorney fees, observing “it remains unclear to me why they would have expended so much time and energy litigating against a company that seems every bit as committed as they are to the protection of the environment and preservation of water quality.”

So the jarring reality is that the Crabb decision hit the company with a minor fine, along the way praising the company for its environmental stewardship. But it was still a technical violation of the Clean Water Act, scream critics of the Flambeau mine!  It turns out that even Judge Crabb’s slap on the wrist for what she recognized was much ado about nothing went too far. Her decision was overturned by the Seventh Circuit Court of Appeals for failing to properly apply the Act’s permit shield.

In the end, Flambeau was deemed by the Court of Appeals to be “in compliance with the CWA.”  To state otherwise is inexcusable. The company did not violate the Act in any way. The Flambeau mine in Ladysmith can, and should, serve as a useful example of the possibility of safe mining and strong environmental stewardship. The two policy aims are not mutually exclusive. In fact, Wisconsin is proving it can be a national economic powerhouse while at the same time preserving and protecting the environmental resources we all cherish. Critics of the proposed legislation would benefit from a close read, and honest assessment, of the Flambeau decisions.

Jake Curtis is an associate counsel at the Wisconsin Institute for Law & Liberty’s Center for Competitive Federalism.