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Great Lakes Article:

Decision puts water quality in tribe's hands

Sokaogon can set standard near mine

By LEE BERGQUIST
Milwuakee Journal Sentinel
June 5, 2002

The Sokaogon Chippewa have the right to regulate water quality on their reservation in northern Wisconsin - a decision that could affect the proposed Crandon mine and spur other tribes to take over regulation of their waterways.

The U.S. Supreme Court let stand on Monday a lower court decision that gave the Sokaogon, or Mole Lake, the power to set water quality standards that are higher than those now promulgated by the state Department of Natural Resources.

Those standards mean that Nicolet Minerals Co. would have to return water from its proposed zinc and copper mine in Forest County at the same pristine quality as before it came into contact with the mine.

Dale Alberts, president of Nicolet Minerals, said Monday the company could comply with stricter limits.

Perhaps more significantly, the decision is likely to open the door for other tribes to seek authority to regulate pollution on lakes, rivers and streams on their reservations - rather than rely on the DNR.

"We suspect that other tribes will be interested in this," said Mike Lutz, a DNR lawyer.

Indeed, an official of the nearby Menominee tribe said it will ask for the same authority as the Sokaogon because tribal members believe they can police their water better than the DNR.

"Currently the State of Wisconsin and the DNR have a different agenda than we do," said Ken Fish, director of the Menominee treaty rights and mining impact office.

State water quality regulations allow for bodies of water to absorb some commerce-created pollution because the pollution will dissipate over time, Lutz said.

But Fish said that while economic development is important to his tribe, clean water is more important.

"If our ancestors were willing to lay down their lives for this territory, certainly we can sacrifice the money, time and efforts for those who will live here in future generations," Fish said.

Mining company confident

Regardless of the standard, Alberts said the company believes it can extract 55 million tons of zinc and copper, and smaller amounts of lead, silver and gold, without harming surrounding groundwater.

"We stayed out of that fight," Alberts said.

"We decided that we could comply with their non-degradation standard, and we intend to do so."

The mine would be five miles south of the Crandon and two miles east of Highway 55.

Located on about 550 acres, the ore body is about 4,900 feet long and about 100 feet wide. The mine would start about 200 feet below the surface and would extend to about 2,200 feet below the surface.

The Crandon ore body was discovered in 1975. Alberts said that while it has faced long-standing opposition, the company wants to mine it because the zinc there is one of the largest undeveloped sources in North America, and it lies within 500 miles of 64% of zinc consumption in the country.

Water quality plays a role in the mining process because groundwater seeps into the mine tunnels. Some of the water is pumped out, and some is used during the mining process. All of the groundwater has to be treated before being returned to the aquifer.

The Sokaogon live next the proposed facility and are concerned about how the mine will affect the groundwater, as well as nearby Swamp Creek and Rice Lake, which is fed by the stream. The Sokaogon harvest wild rice from the lake - and consider the annual harvest as highly important to their culture.

"We mainly harvest it for ceremonies," said Tina Van Zile, the Sokaogon's vice chairwoman. "It's a very sensitive plant. If the water level dropped a foot, we could lose a crop that year."

Decision in 2004

The DNR said a decision on whether the plant can proceed will probably not take place until 2004. The agency must still complete an environmental review before the decision goes to an administrative law judge.

There also have been numerous legislative fights related to the mine. Most recently, opponents sought legislation this year that would ban the use of cyanide in mining. Cyanide is one of the chemicals used in the mining process.

The court case pitted the Sokaogon and the U.S. Environmental Protection Agency against the DNR.

The EPA argued that Congress authorized the EPA to treat the American Indian tribes the same way as states. But the DNR said it had authority over water resources within the state. The agency also said it had higher standing because Wisconsin achieved statehood before the Sokaogon were ceded land for a reservation.

But a federal appeals court panel said that the Sokaogon band was a community and American Indian culture relies heavily on water resources. Further, the court said that the ore body's 1,850 acres are all owned by American Indians.

The Menominee, Oneida and the Lac du Flambeau tribes had previously sought to have authority over water quality matters, but backed out after an EPA attorney was charged and later convicted of faking documents to buttress the EPA's case.

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