WaterLegacy Launches Lawsuit in Minnesota U.S. District Court to Block PolyMet Land Exchange

LAWSUIT LAUNCHED IN MINNESOTA US DISTRICT COURT TO BLOCK POLYMET LAND EXCHANGE

FOR IMMEDIATE RELEASE  

 
Media Contact: Paula Maccabee 651-646-8890, pmaccabee@justchangelaw.com
     WaterLegacy Advocacy Director & Counsel

Environmental Group WaterLegacy Shows that Exchange Undervalues Superior National Forest Land 

DULUTH, Minn. Jan. 30, 2017: The Minnesota non-profit environmental group WaterLegacy filed suit today in U.S. District Court against the USDA Forest Service to overturn its approval of an exchange of 6,650 acres of Superior National Forest land to PolyMet Mining Company, Inc. for the PolyMet NorthMet open-pit copper-nickel mine. The lawsuit states that Forest Service approval of the PolyMet land exchange on January 9, 2017 violated the Federal Land Policy and Management Act (FLPMA) because it failed to consider the highest and most profitable use of the lands for mining related uses, significantly undervalued the federal lands, and would result in a windfall for the PolyMet foreign corporation at the expense of Minnesota taxpayers and public lands.

“The Forest Service turned a blind eye to the purpose of the land exchange (PolyMet’s proposed sulfide mine), the exploitable minerals on the lands, and Minnesota’s private market where mining companies pay a premium to buy lands for existing and potential mining uses,” said WaterLegacy attorney Paula Maccabee. “WaterLegacy’s board and thousands of other citizens across Northeastern Minnesota are tired of seeing Minnesota’s Superior National Forest lands and Lake Superior watersheds devalued in order to serve the interests of PolyMet and its foreign investors.”

The Forest Service valued the site proposed for the PolyMet mine at just $550 per acre, based only on its use for “timber investment.” However, recent private sales of Minnesota land to mining companies have resulted in prices many times higher. For example, from 2012 to 2016, Kennecott Exploration Company has paid an average of $3,885 per acre for land in Minnesota’s Aitkin County with copper-nickel mining potential. 

Jason L. Messner, MAI, a valuation expert who reviewed the appraisal used by the Forest Service, concluded that valuation of federal lands for the proposed PolyMet mine site “based solely on its value for forestry and timber production, is not reasonable and results in an opinion of value that is not credible.”

PolyMet has to date received no permits for its proposed open-pit copper-nickel mine, which WaterLegacy and many other health and environmental groups oppose due to the project’s threats to wetlands, habitats, water pollution and mercury contamination of fish. According to the Forest Service Biological Assessment, the proposed exchange of 6,650 acres of Superior National Forest lands for the PolyMet mine project would be the largest land exchange ever conducted by the Forest Service.

     This photograph shows a portion of the Superior National Forest lands proposed for the
     PolyMet land swap taken by a consultant for PolyMet as part of the September 15, 2012
     NorthMet Project Cultural Landscape Study Final Report.

 

Media Coverage of WaterLegacy's Lawsuit Against the USDA Forest Service

READ Lawsuit against PolyMet land exchange raises potent issue of taxpayers' rights from MinnPost

"WaterLegacy’s claim strikes me for multiple reasons as highly problematic for PolyMet and also for the Forest Service... WaterLegacy is stating a problem that can be measured in dollars. Better yet, taxpayer dollars.

It asks whether the Forest Service did its duty to the public financial interest by getting fair market value for the portion of the Superior National Forest it is trading away. Then it makes a powerful, easily grasped and documented case that the land may be worth many times the $550 per acre value set by the agency."

 

READ Lawsuit: PolyMet got a ‘sweetheart deal’ on USFS land exchange from The Timberjay:

"If the suit is ultimately successful, the impact on the project could be significant, particularly if the courts agreed that the Forest Service was giving away federal lands too cheaply. Maccabee said that would presumably require PolyMet to purchase significantly more land, potentially thousands of acres, to achieve a relatively equal exchange. The Forest Service would then potentially have to go through a new appraisal process before issuing a new decision."

 

READ Second lawsuit filed against PolyMet land exchange from the Duluth News Tribune:

"The 20-page lawsuit filed in Minnesota claims “The Forest Service’s failure to appraise the market value of the federal lands … as a whole property, failure to value the lands according to their most profitable, feasible, probable and intended use for mining related purposes, and failure to value the lands based on the most comparable Northeastern Minnesota transactions by mining companies in the private market reflected a willful blindness of the Forest Service to the intended use of the federal property; was neither reasonable nor credible. . .”

PolyMet needs the Forest Service land because it sits on top of the deposit of copper, nickel and the valuable metals that it wants to mine— the first copper mine ever in Minnesota.

 

READ Suit claims swap with PolyMet grossly undervalued public land from the Star Tribune

“The Forest Service priced its property at $550 per acre for its value as timberland, based on sales of similar forests in Michigan and Wisconsin,” said Paula Maccabee, WaterLegacy’s attorney.

Maccabee then explained that the Forest Service appraisal showed several mineral lands in Minnesota sold at an average price of $1,645 per acre. In addition, Maccabee noted that Kennecott Exploration Co., which is exploring for copper, has paid an average of $3,885 per acre.

 

READ Environmental groups launch second legal challenge over PolyMet land exchange from MPR News

 

Environmental Groups Plan to Challenge PolyMet Land Exchange Effect on Endangered Species

On January 9, 2017, the U.S. Forest Service filed a Record of Decision approving the PolyMet sulfide mine project Federal Land Exchange. In the deal, PolyMet gains surface rights to 6650 acres of Superior National Forest previously owned by the Forest Service for the public benefit. The Forest Service acknowledges that the land exchange was done for the purpose of the PolyMet open-pit copper-nickel mine proposal and that the land exchange was approved to forestall PolyMet’s threat of litigation. 

On January 10, 2017, The Center for Biological Diversity and Earthworks gave notice that they are filing a lawsuit to protect endangered wolves and lynx and to stop the PolyMet - U.S. Forest Service Land Exchange. If the Forest Service doesn’t reverse their decision within 60 days, the suit will become official. 

The notice charges that the PolyMet copper-nickel open pit mine would destroy critical habitat and be detrimental to gray wolf and Canada lynx populations. Both species are listed as “threatened” under the Endangered Species Act. 

READ The Center for Biological Diversity’s press release announcing the lawsuit:

“A century of iron ore mining has already fragmented habitat for wolves and lynx in this region, so these imperiled species can’t tolerate a new wave of open-pit copper mining. The Forest Service is trying to wash its hands of this terrible project through a land exchange with PolyMet, but the impacts on wolves and lynx are just too severe to allow this to proceed.” – Marc Fink, Center for Biological Diversity Attorney

WaterLegacy has criticized the land exchange as both environmentally harmful and a windfall to PolyMet at the expense of the public.

READ the Timberjay article from January 12, 2017:

“The Forest Service has basically knuckled under to PolyMet’s threat of litigation, allowing them to proceed with a project that is not the biologically preferred alternative,” said Paula Maccabee, legal counsel for St. Paul-based Water Legacy.  . . Maccabee also took issue with the average value of the federal land in question, which the Forest Service appraised based on its value as timber land, or about $550 an acre. She said the undervaluing of federal lands slated for development is a national scandal, one that has drawn criticism from the General Accounting Office. 

Why is a Federal Land Exchange Proposed for the PolyMet Sulfide Mine Project?

The PolyMet Company owns the mineral rights to the site on which its proposed sulfide mine would be located. But, the surface rights are part of the Superior National Forest owned by the United States Forest Service (“Forest Service”) for the benefit of the public.

The Forest Service has determined, based on the legal deeds for the public forest land, that an open pit NorthMet sulfide mine cannot proceed unless PolyMet identifies and the Forest Service accepts a land exchange, where the public would lose surface rights to the NorthMet site and receive rights to other land in exchange.

The Forest Service has proposed that several different parcels would be exchanged for approximately 6,650 acres that PolyMet would like to own.

Land Exchange Decision Background

On November 17, 2015, the U.S. Forest Service gave official notice of publication of a Draft Record of Decision supporting the exchange of 6,650 acres of Superior National Forest land for private lands so that the PolyMet NorthMet sulfide mine could be constructed. The Forest Service stated that the No Action Alternative was the environmentally preferable alternative, but selected the land exchange and the PolyMet sulfide mine project nonetheless.

The Forest Service Draft Record of Decision emphasized its concern that PolyMet would litigate if the land exchange was not approved and relied heavily on the PolyMet FEIS for its belief that feasible alternatives had been considered and that the PolyMet sulfide mine would have few adverse impacts on the environment or on tribal rights and resources.

On January 4, 2016, WaterLegacy submitted to the U.S. Forest Service, with courtesy copies to all other federal, state and tribal agencies, a 133-page document stating our legal objections to the federal land exchange, our six expert reports, 43 exhibits (including the 36 supporting prior comments), and a comprehensive appendix including tribal comments on the PolyMet FEIS and the record of WaterLegacy’s efforts to secure information on the land exchange under the federal Freedom of Information Act.

READ WaterLegacy Objections to USDA Forest Service Federal Land Exchange for the PolyMet NorthMet Sulfide Mine Project

WaterLegacy’s Objections to the Federal Land Exchange for the PolyMet sulfide mine project can be summarized as follows (excerpted from our Table of Contents):

I. The proposed PolyMet NorthMet land exchange does not meet comply with the National Environmental Policy Act (NEPA), the Freedom of Information Act (FOIA) or with the Federal Land Planning and Management Act (FLPMA).

A. The Forest Service failed to release federal appraisals and instructions in violation of NEPA, the FOIA and its own policies.

B. The Forest Service has not demonstrated that the federal lands were properly valued under FLPMA and applicable regulations, standards and policies.

C. The non-federal lands proposed for the PolyMet NorthMet land exchange are unacceptable due to split estates, with no protection for the surface.

II. The proposed PolyMet NorthMet land exchange is inconsistent with federal laws, regulations, policies and trust obligations and is not in the public interest.

A. The possibility of litigation does not provide grounds to reject the No Action Alternative for the PolyMet NorthMet land exchange.

B. In violation of NEPA, the proposed PolyMet NorthMet land exchange and mine project does not use all practicable means to avoid and/or minimize environmental harm.

1. A land exchange alternative no larger than the proposed NorthMet mine site should have been evaluated.

2. Underground mining would eliminate the need for a land exchange and minimize environmental harm, and it has not been shown to be infeasible.

3. Practicable mitigation alternatives to avoid and/or minimize environmental harm from the PolyMet NorthMet should have been evaluated and adopted. These include dry stack tailings disposal, West Pit waste rock backfill, mine site reverse osmosis in year 1 and alternative sites for hydrometallurgical waste disposal.

C. The proposed PolyMet NorthMet land exchange and mine project would have significant adverse impacts on water quality, watersheds, fish, and human health, contrary to FLPMA and the public interest.

1. The PolyMet NorthMet project would significantly increase mercury and methylmercury in the Partridge and Embarrass watersheds and the St. Louis River.

2. The PolyMet NorthMet FEIS’ denial of mercury and methylmercury impacts is scientifically unsupportable and relies on poor quality information, including inadequate and misleading information on mercury and sulfate loading and failure to plan for wastewater treatment to reduce mercury concentrations.

3. Increases in mercury and methylmercury from the PolyMet NorthMet project would cause or contribute to violation of water quality standards.

4. Metals, sulfate and ionic pollution from the PolyMet NorthMet project would degrade water quality and violate water quality standards. The project would not comply with the Clean Water Act and would pose substantial risks to human health, particularly children’s health.

D. The PolyMet NorthMet project would have significant adverse impacts on wetlands contrary to federal regulations and the public interest.  Proposed direct, indirect and cumulative destruction of high quality wetlands is contrary to federal regulations and the public interest.

E. Destruction of wildlife habitat and remaining wildlife corridors precludes approval of the PolyMet NorthMet land exchange and mine project.

F. Forest Service failure to value ecosystem services prevents a finding that the     PolyMet NorthMet land exchange and mine project is in the public interest.

G. The proposed PolyMet NorthMet land exchange and mine project conflicts with federal regulations, management objectives for tribal lands,

1. The PolyMet NorthMet land exchange and mining project cannot be approved due to contamination, destruction and degradation of tribal resources.

2. The NorthMet land exchange and mine project cannot be approved due to inadequate consideration of cumulative impacts on tribal resources and of tribal points of view.

III. Reliance on monitoring and speculative mitigation to justify the PolyMet NorthMet land exchange and mining project is contrary to law and to the public interest.

A. The NorthMet FEIS inadequately analyzed and failed to mitigate adverse environmental effects including mercury contamination, indirect impacts to wetlands, and tailings and mine site pollution, including northward flow.

B. Proposed monitoring for indirect wetlands impacts of the PolyMet NorthMet project would neither identify nor avoid adverse effects on wetlands and methylmercury contamination.

C. Monitoring and a laundry list of unproven mitigation options would not prevent NorthMet pollution of either Lake Superior Basin or Rainy River Basin waters.

D. Minnesota’s history of failure to reissue expired permits or enforce water quality standards for mining facilities does not support reliance on contingency mitigation.

E. The NorthMet FEIS provides no foundation to financially assure long-term water quality treatment, let alone contingency mitigation.

Prior WaterLegacy Analysis of Federal Land Exchange for PolyMet NorthMet proposed Sulfide Mine

In 2009, WaterLegacy concluded that a federal land exchange would be needed if PolyMet were to propose an open-pit mine on Superior National Forest lands.

READ WaterLegacy’s 2009 research paper explaining the need for a land exchange prior to permitting of the PolyMet strip mining project.

After the comment period on the PolyMet NorthMet Draft Environmental Impact Statement, it was determined that the Forest Service would become a Co-Lead Agency for the proposed Land Exchange and PolyMet sulfide mine project. Members of the public were given an opportunity to comment on the scope of issues that should be considered.

Read WaterLegacy's November 2010 COMMENTS on SCOPING, opposing the proposed exchange of Superior National Forest land that would let the PolyMet toxic sulfide metal mine go forward.

The Federal Land Exchange environmental review was incorporated into the PolyMet NorthMet Supplemental Draft Environmental Impact Statement (SDEIS) that was released in the fall of 2013. WaterLegacy’s comments on the inadequacy of the PolyMet SDEIS also opposed the federal land exchange as contrary to law and contrary to the public interest.

Read WaterLegacy’s March 13, 2014 Comments on the PolyMet NorthMet SDEIS and proposed federal actions.

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