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