Minnesota’s lead environmental protection agency has failed to protect our water and wild rice: A Minntac Case Study

A recent U.S. Supreme Court decision could require the MPCA to enforce tougher water quality standards on pollution discharged from U.S. Steel’s Minntac mine

Part I in a series which explores how the Minnesota Pollution Control Agency (MPCA) has failed for decades to enforce water quality standards against U.S. Steel and its Minntac mine in northern Minnesota.

Wild rice is a sacred food to the Ojibwe and Dakota peoples, holding spiritual and cultural value. For some Anishinaabe in northern Minnesota, it’s also source of income. It’s Minnesota’s state grain and important to the state’s identity.

It’s also very sensitive to water pollution, notably sulfates.

Minnesotans care about clean water. In 1967, the Minnesota Legislature created the Minnesota Pollution Control Agency (MPCA), giving it a “unique challenge and a demanding responsibility: to protect the air, waters and land of our great state.”

In 1973, Minnesota created a rule limiting sulfate pollution in wild rice waters, known as the Wild Rice Rule. The U.S. Environmental Protection Agency (EPA) approved the rule under the federal Clean Water Act.

The problem is, the MPCA has rarely enforced the Wild Rice Rule. The agency first applied it in 1975, regarding wastewater discharge from Minnesota Power’s Clay Boswell coal-fired power plant, court records say. The agency didn’t apply the rule again until 2010, 35 years later. Continue reading

Faith leaders asking for more scrutiny of the PolyMet mine proposal in northern Minnesota

Our friends at  Minnesota Interfaith Power and Light are asking faith leaders of all traditions to add their names to a sign-on letter asking for better scrutiny of the PolyMet mine proposal in northern Minnesota.

Specifically, the letter asks Gov. Tim Walz and key agency heads to “accept the Court of Appeals decision that a fair and open contested case process is needed now for the PolyMet sulfide mine.”

Some 200 faith leaders already have signed the letter and it will be delivered to Gov. Walz’s office tomorrow, Tuesday, Feb. 11 at 11 a.m. Minnesota Interfaith Power and Light will continue gathering faith leader signatures in the coming months, so it’s not too late to sign. Continue reading

PUC Commissioner makes strong case against Line 3 plan and strengthens legal cases poised to stop it

Commissioner Matt Schuerger.

After years of research, testimony, organizing, letter writing, pleas, protests, and other public pressure by Indigenous Nations, environmental groups and regular citizens, one Minnesota Public Utilities Commission (PUC) Commissioner came around to vote “no” on Enbridge’s proposed Line 3 tar sands pipeline expansion.

Commissioner Matthew Schuerger’s lone “no” vote Monday didn’t change the outcome; the PUC approved Line 3’s Certificate of Need and Route Permit on 3-1 votes. Significantly, however, Schuerger’s arguments will lend credibility to the pending lawsuits seeking to overturn the PUC’s ill-considered decisions. Continue reading

Anishinaabe ‘Rights of Manoomin’ Laws Create Legal Basis to Protect Sacred Wild Rice

‘This would be the first law to recognize the legal rights of a plant species

The White Earth Band of Ojibwe and the 1855 Treaty Authority are taking action to address the growing threats to native wild rice, such as potential crude oil pipeline spills or the spread of genetically modified wild rice. They are establishing new laws and claiming treaty rights to protect their culture and sacred food.

The 1855 Treaty Alliance was established to protect the treaty rights of Leech Lake, Mille Lacs, White Earth, East Lake and Sandy Lake bands. The Alliance covers those lands the Anishinaabe ceded as part of their 1855 Treaty with the United States. (Among those treaty rights, bands claim the right to hunt, fish and gather — including harvesting wild rice — on ceded lands.)

According to a media statement from the 1855 Treaty Alliance:

Recently the White Earth Band of Ojibwe and the 1855 Treaty Alliance adopted Rights of Manoomn for on and off reservation protection of wild rice and the clean, fresh water resources and habitats in which it thrives. The Rights of Manoomin were adopted because “it has become necessary to provide a legal basis to protect wild rice and fresh water resources as part of our primary treaty foods for future generations” …

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Fond du Lac OK’s Line 3 Crossing its Lands; Commerce Continues Criticism of Enbridge’s Liability Insurance

Two new filings came into the Minnesota Public Utilities Commission (PUC) today. One, a joint letter by the Fond du Lac Band of Lake Superior Chippewa and Enbridge Energy, announced they had reached agreement to allow the new Line 3 to cross the Fond du Lac reservation. In the letter, Fond du Lac also agrees not to oppose the pipeline. In the other filing, the Minnesota Department of Commerce reiterated its concerns that Enbridge has inadequate insurance coverage to pay for a major spill cleanup.

In other news, a federal court dealt a significant set back to the Kinder Morgan tar sands crude oil pipeline.

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Pushing Back on the PUC, Part I: Ojibwe Bands Criticize Enbridge’s Rushed Pipeline Promises

This is the first in a series that will review responses to Enbridge’s last-minute promises on its Line 3 pipeline project. The PUC adopted these with no pubic scrutiny. This blog looks at the responses from Native Nations. The next blogs will look at responses from state agencies and an environmental group.

In late June, the Minnesota Public Utilities Commission (PUC) was entering its final deliberations on the Enbridge Line 3 tar sands pipeline. The debate spanned years, including public hearings, an environmental impact statement, and recommendations from an administrative law judge. With a final vote imminent, the PUC changed the rules. It allowed Enbridge to change its proposal after the official record had closed. The PUC accepted Enbridge’s deal sweeteners and voted to approve them without giving regulators or the public a chance to review and critique them.

While Enbridge’s promises might look good on paper that’s no guarantee they will deliver.

Now, predictably, many parties — tribal nations, state agencies and an environmental group — have filed responses to the PUC seeking significant changes. These responses show just how little thought the Commissioners gave to Enbridge’s proposals before giving them the green light. In particular, Enbridge gave no consideration to indigenous rights. While perhaps it’s not surprising that Enbridge tried to game the system, it is disappointing that the PUC went along with it, one more example of its flawed process.

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Judge Takes Sides in Line 3’s Treaty Rights Debate When She Should Have Stayed Neutral

In her recommendations on the Enbridge Line 3 crude oil pipeline, Administrative Law Judge Ann O’Reilly took sides on the critical issue of treaty rights when she should have stayed neutral. Instead, she staked out a legal position outside the scope of her work and one detrimental to the Ojibwe Bands.

O’Reilly is not a treaty law expert. More importantly, O’Reilly’s recommendations are meant for the Minnesota Public Utilities Commission (PUC) and the PUC isn’t going to take a position on treaty rights. It’s beyond the PUC’s scope. O’Reilly should have stayed neutral and articulated the PUC’s predicament: The PUC can’t decide treaty law disputes yet treaty rights are a critical issue underpinning its Line 3 decision. Continue reading

Structural Bias in PUC Review Process of Line 3 Favors Enbridge

Part II of a series looking at Ojibwe Band responses to Administrative Law Judge Ann O’Reilly’s report and recommendations on the Enbridge Line 3 tar sands pipeline. [Note: Ojibwe and Chippewa are both colonial names for the Anishinaabe. They are used in this story because of their use as official band names.]

The current Line 3 is blue, the proposed reroute is in red. Light green shaded area reflects the “ceded lands” where bands retain rights to hunt, fish and gather.

Federal Indian law and the interpretation of treaties is complicated business; it requires specialized legal training. Ojibwe bands in northern Minnesota are pushing back on how Administrative Law Judge Ann O’Reilly interpreted treaty law in her report on the Enbridge Line 3 crude oil pipeline, submitted to the Minnesota Public Utilties Commission (PUC).

Some of her interpretations don’t conform with court decisions, Ojibwe bands say.

At issue are Ojibwe treaty rights to hunt, fish and gather in northern Minnesota. In the legal world, these are called “usufructuary rights.” The dispute is over whether Ojibwe bands retained these hunting and fishing rights on lands they ceded by treaty to the U.S. government.

O’Reilly’s effort to interpret treaty law is flawed, and it reflects a major flaw in the Line 3 review process. First, according to her official state profile, O’Reilly doesn’t appear to have Indian law expertise. This is not a knock on O’Reilly; it’s a knock on a system that wasn’t set up to look out for treaty rights. Second, the system pushes resolution of treaty rights disputes to the end of the legal process instead of making them the priority and putting them at the beginning.

The process could just as easily have defended Ojibwe treaty rights and forced Enbridge to overcome that presumption in court before its application process even started.

It’s reasonable to ask why treaty rights issues didn’t receive more attention at the start of the process. The federal Indian Trust responsibility is a U.S. obligation “to protect tribal treaty rights,” according to the U.S. Department of Indian Affairs.

At this point, it’s not happening.

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