Several controversial bills were passed by the Republican-controlled Legislature and signed into law by Gov. Scott Walker last session, only to end up in court.

There are strong indications the proposed mining bill could be next, joining collective bargaining, voter ID and a gubernatorial attempt to supersede the powers of the state superintendent as lawsuit fodder.

“From a litigation standpoint, they have a losing hand,” predicts state Sen. Tim Cullen, D-Janesville.

Protection of state waterways, Cullen and others say, will be the likely legal roadblock.

Cullen has been trying this fall to improve on the Republicans' failed mining bill of last spring. In the post-recall window in which the Democrats have been in control of the state Senate, Cullen's Select Senate Mining Committee has been meeting with stakeholders in an attempt to craft a mining permitting bill that includes environmental protections critics say were missing from the GOP's version. With little time left before Republicans take back control of the Senate in January, Cullen’s committee meets for what could be one of the last times Thursday to continue its efforts to improve Assembly Bill 426, which top state Republicans including the governor have signaled they still favor.

Should Republicans choose to ignore Cullen's committee's work and reintroduce AB 426 as originally crafted, the lawsuit threat looms, say observers.

Sen.-elect Thomas Tiffany, R-Hazelhurst, who worked extensively on AB 426 and was recently picked to chair the Senate Workforce Development, Forestry, Mining and Revenue Committee, says while he hopes there will not be a lawsuit filed, he “would not be surprised” if that happens.

“While I don’t question anyone’s sincerity, I believe the Assembly bill passes constitutional muster and will survive any litigation that is brought forth,” Tiffany says.

But what the Assembly bill fails to do, say opponents, is protect state waterways, including lakes, rivers, streams and wetlands, from the leftover soil, called "overburden," that is dug out in any mining operation.

While the state’s existing mining law has explicit language prohibiting the infill of waterways with, for example, overburden from a mining operation, the Assembly bill does not. It is simply silent on the matter.

“It is an intentional omission,” asserts George Meyer, former secretary of the state Department of Natural Resources and executive director of the Wisconsin Wildlife Federation.

Meyer says the omission is particularly concerning because of the environmentally sensitive location of the only prospective mine that is being discussed for development in Wisconsin.

Mining company Gogebic Taconite has as an option on land in the Penokee Hills of Ashland and Iron counties. The land is surrounded by trout streams, wetlands and the Tyler Forks and Bad rivers. The Bad River drains into Lake Superior after traversing the reservation of the Bad River band of Lake Superior Chippewa.

“This is basically a one-mine bill,” Meyer says. “There aren’t numerous other iron ore mines in the state. Given that context, there no doubt will be a legal challenge if a permit is issued for the Penokee mine.”

Gogebic officials have said the first phase of the $1.5 billion project would include an open-pit mine roughly 4 miles long and 1,000 feet deep.

That means a lot of excess dirt will need to be put somewhere after it is removed to reach the iron ore deposits. Since the Assembly mining bill doesn’t say the excess soil can’t be deposited in wetlands and rivers, critics fear this is exactly what will happen.

If the company dumps the earth into these streams, says Meyer, it would be a violation of the state constitution’s “public trust doctrine,” which says that state waterways must remain the property of all citizens, not any one property owner or company.

Meyer says the state Supreme Court has ruled numerous times on the side of protecting state waterways by citing the public trust doctrine. He added Tiffany, first elected in 2010, has been a lawmaker long enough to be “aware of the doctrine.”

“It’s almost impossible to put all that overburden somewhere near the mine without putting it in water,” Cullen insists. “The big problem is there is too much water up there.”

The proximity of the reservation and the potential for the mine to negatively impact the wetlands and waterways that flow through the tribal land adds a layer of federal oversight that would not be a factor on non-tribal lands. Observers believe federal officials will look closely at the environmental impact of any mine near tribal land.

Tiffany says legislative attorneys have been asked to look into how the Assembly bill compares to those in Minnesota and Michigan, specifically when it comes to how those states handle what’s known as "waste characterization." That pertains to what happens to potentially harmful minerals and other material dug out during the mining process.

“Waste characterization is an important part of this process,” Tiffany says. “It is my belief our DNR will do a thorough job with this portion of the permitting process.”

The Assembly bill failed to make it to Walker’s desk last spring after Sen. Dale Schultz, R-Richland Center, announced he would not provide the necessary vote for the bill to pass the Senate, which was then controlled 17-16 by his party.

With an 18-15 Republican advantage in the Senate as of January, Schultz will no longer be a stumbling block. How much clout Cullen’s committee has on the upcoming session is also up for debate.

Like Walker, Tiffany calls the Assembly bill a “good starting point," adding he believes a viable bill can be created from it.

“We certainly will review what they’ve put together,” says Tiffany of the work done by Cullen’s committee. “I think we owe it to the process to do that.”

Reporter

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(39) comments

Tea Parody
Tea Parody

There is no constitutional right to sue in courts. Courts are subserviant to the legislature and the Governor because the courts only want to advance a liberal activist agenda. Wisconsin needs jobs but the liberaltististas just want to stop all progress. This about tourism. Mining can promote tourism. What if the iron ore mine is carved as an upside down mount Rushmore? You can't tell me people won't travel thousands of miles to see that. Once they are here they will have to buy bottled water since the water in the area around the mine won't be drinkable. There's a bonanza to be made in bottled water at the upside down iron ore mine mount Rushmore.

LiLa
LiLa

What a delightfully twisted mind you have!

Willac
Willac

Nonpolluted drinking water is not an environmental card. There are still streams and rivers contaminated with arsenic in the Northwest from gold mining over a century ago - clean drinking water should be a dependable expectation for generations to come.

beloitgopher
beloitgopher

Mining is very important to the young people of this country. It's natural recouces that can help fuel our economy and also the wealth that comes from the ground can be used productively for all types of use. That wealth can creat thousands of jobs thoughout Wisconsin. Minnesota also has great natural recouces that will grow the life styles of our nation and will help the people live good lives.
As for the enviromental issues? Mining in the 21st century is so much more safe not only for the workers but also for the enviroment. That is a weak straw argument. Any REAL educated person knows that. I'm so upset with so called educated individual playing the enviromental card. That is a losing argument and we should ask those persons to have to prove it and not with made up science.

TheMatador
TheMatador

So, I ready your post, beloit, and can't help but notice that you seem to think yourself of the upper echelon. However, reading the absolutely horrid way in which you write clearly counters that assumption. So, why should we believe or go along with anything that you have to say? You aren't one of the "real educated" people in which you've written.

array1
array1

Then why won't Taconite agree to NOT dump in lakes and stream??

196ski
196ski

It is against Federal law for anyone to "dump" into a lake or stream. They can't, they won't, and if they did they would suffer the consequences which could potentially risk their 1 billion dollar investment. It serves them no purpose to break environmental laws. They will be watched by the Feds, the State, their neighbors, every environmental group under the sun and their employees who will live nearby. This is a long term commitment that won't see any payback for the investors for probably 10 years.

I hate to sound like I work for them, I don't, but I have seen the long term economic boost a mine can provide for a community. It's out of state cash injected directly into Wisconsin in the form of payrolls and mine services. The downside is that it is a large hole in the ground that will remain a large hole in the ground for many years before it is returned through reclamation to a different, but native ecosystem.

What will the people of Wisconsin allow for development? If this was an auto assembly plant would that be okay? A paper mill (cough fox river cough)? A steel mill? A chemical plant?

witness2012
witness2012

BG, whether a mine is safe or not depends on how the bill is written and what protections are built into it. This bill has significant flaws and would work counter to the federal review process. It also allows the overburden to be stored on-site and that will release sulphides into the atmosphere. It also waives many of our current environmental protections.

Yes, mining technology has improved and we know more about how to protect the environment, but this bill doesn't do it. Read it for yourself.

196ski
196ski

Where else do you think they are going to store overburden? It has to be on-site. Overburden is the ground above the ore bearing rock, it is mostly sand. Any topsoil will be stored separately for reclamation use. Overburden will not release "sulphides" into the atmosphere. There are legitimate concerns about some of the pyrite rock associated with the ore body because of the potential to create a leachate containing sulfuric acid. Mine planning would require isolation and monitoring. Once portions of the mine are exhausted of ore bearing rock the stockpiled overburden would be used for reclamation.

Wisconsin law cannot circumvent or undermine (no pun intended) Federal Law. If the Mining Bill does that it will be game over in Federal Court. State laws can be more restrictive than Federal law but never less restrictive.

196ski
196ski

Iron ore mining does not hurt tourism, as evidenced by tourism economies in both the UP and Minnesota. Tourism is much more successful there than it is in Northern Wisconsin. The sheer number homes and businesses that are for sale or closed in NW is staggering. A more stable economic base in the North would add additional opportunities for tourism.

The mine is not on tribal lands and therefore would only involve the tribe if a spill was to occur. If that did happen the tribes would have to stand in line behind the automatic Federal and State court action.

The vast majority of the jobs created by an iron ore mine would be LOCAL hires. Iron ore mines employ mostly unskilled workers and they would almost certainly be represented by the Steelworkers union. On the job training, as required by Federal law, and promotions from within.

Any mine in the State of Wisconsin is required by law to have an approved, bonded, reclamation plan before the first shovel is turned.

And then there is the hypocrisy of using steel in every facet of our lives but not wanting the mine in "our back yard" (even though it isn't). Is it better to have iron ore mined in Michigan or Minnesota? Mining is an ugly business. I was involved with writing environmental permits for a mine in Northern Wisconsin for a number of years. It can be done responsibly, it can be done with environmental stewardship, it can be a win win. No company invests a billion dollars with the thought of jeopardizing that investment by cutting the corners on either the environment or safety. Doesn't happen, not anymore. Is anyone suggesting banning steel products in our State? We need reasonable people having reasonable discussions to have good mining laws in Wisconsin.

Ultimately the decision on the mine should be left to the residents of the area. They live there, the rest of us just use this and every other issue as just another way to wage political warfare.

I live in Northern Wisconsin but have zero attachments to this or any other mine.

TheMatador
TheMatador

Ski, tourists don't really go to the UP to see the Marquette iron mines. They are an eyesore. I see them every year. I love the UP, I love the mines and the history. I do not love changing environmental regulations to be lesser than those experienced in the states that you continually tout. I do recall a time, not long ago, that the UP wasn't as clean as it is now...and it still hasn't fully recovered. You ever go to White Pine? That was the most modern mine in the UP until very recent events. In the 1990s it was also a superfund site...a horrendous mess.
I'm a proponent of mining but I'm not a proponent of taking all we can from the ground now. Iron is cheap, why not hold onto ours until the price is higher and make more money?

196ski
196ski

I did not say that they went to see the mines, although some do, the fact is that the economic base created by the mine and the many businesses that support the mines activities keeps those restaurants and hotels in business. Marquette is not without its problems but it is a thriving community because it has so much economic diversity. None of that diversity exists in Northern Wisconsin.

human
human


'The mine is not on tribal lands and therefore would only involve the tribe if a spill was to occur'

The tribal lands are a short distance DOWNSTREAM from the mine. The mine will use (and acidify) vast quantities of water. Where do you think it's going to go?

196ski
196ski

This argument was tried by the tribes in the UP multiple times to stop mines and it did not work.

TheMatador
TheMatador

What I will agree wit hyou on is this absurd idea that a mine would only employ out of state miners who wouldn't spend money locally. Again, I draw info from Marquette, which is growing very quickly, much on the backs of teh iron mines.

array1
array1

Why on earth then did Taconite refuse to agree to hire a single Wisconsin resident??

196ski
196ski

Because there is no reason for them to agree to anything. They will hire local because it makes economic sense to do so, not because they have to.

Slithy Tove
Slithy Tove

Get ready to see the ugly underbelly of the GPO...

TheMatador
TheMatador

I think my Dad used to drive a GPO.

Roundtable
Roundtable

For Sale: One Wisconsin State Assembly Bill for mining in Northern Wisconsin.Previous experience in Tribal Law, Loss of tourism and water pollution not necessary.Please take note: Legal and Ethical issues abound with current seller on issue. Must be willing to supplant current local tourism employees with approximately 700 out-of state based workers. Please reply with resume to Wisconsin State Assembly, Madison Wi.

Harvey
Harvey

If you own any property near the mine or waterways close to the mine, SELL SELL SELL. It won't be worth a plug nickle if that mine goes in. The same goes for merchants who depend on tourism.

TheMatador
TheMatador

Harvey, that's not entirely true. Yes, some businesses and tourism suffer but not all. There's plenty of tourism that can occur near mines. I can't remember which one but I think the active Tilden mine outside of Negaunee, MI has a river right next to it. It's strange, you drive down the road and see a river and a nice bluff next to it. From the air you can see that on the other side of this half of a bluff is a huge pit in the ground. The river is well above the bottom of this pit. This river, which one would expect to be nasty, is actually very productive for fishermen. I'm not a huge supporter of the Wisconsin mine, mainly because we shouldn't need to change state laws to satisfy one company (doesn't our legislature work for the people and not companies?) but I do know that not all of the boogeyman associations actually exist.

joe
joe

Standard DEM response, "We are going to sue." The Dane county courts is the last piece of corruption in the State. Hey, if you can't win an election, cheat and use local activist judges to legislate. Not really Democracy, but since when are the corrupt WI Dems interested in Democracy?

witness2012
witness2012

Joe, any lawsuit will be filed in federal court since the issue will be an overreach by the state into federally-regulated issues. That has been characteristic of all the lawsuits- the state has attempted an overreach of authority, beyond what is constitutional.

TheMatador
TheMatador

I think the courts and judges know more about the "actual" law than you do, Joe.

hankdog
hankdog

There won't be a mine built up there if the old assembly bill is reintroduced and passed. The authors (G-tac) completely ignored other regulatory hurdles (EPA, COE, tribes, etc.) that the state cannot control. This is strictly a political ploy to make the D's and regulators look bad. If they were really serious about a mine walker, G-tac, etal would have embraced the system, partnered up with the locals and regulators, and figured out a "win-win" way to get the mine built. Instead they tried to bull their way through and forgot they don't have all the players under control. But this tactic makes some great fodder for the R's to throw at opponents.

Another observation or two; If the bill passes G-tac will sell their rights to some entity with iron mining experience. G-tac is a coal mining company without the resources for this type of operation. Note Sullivan's new affiliation.

This isn't the "mother lode" as many portray it to be. If this was a high grade ore deposit and easy to get at it would have been mined years ago. So don't bet on a lot of folks rushing to dig once the bill passes.

racedog48
racedog48

Note to GOP. Before you past mining bill. You must first pass a bill that pulls lawsuits filed against your great work from the Cess pool of Dane county courts

knittingnancy
knittingnancy

The Feds, not the Dane county will be bringing suit. You GOP dumbos should start a better learning process.

witness2012
witness2012

RD, it will be federal court, not Dane County court, rest assured.

Woodsperson
Woodsperson

The Republicans are working themselves into a win-win situation. They can pass any bill they want with their majority positions in the Senate, Assembly and Governor. The crappier, the better. They then can say, "See all the potential jobs we've created?" When the tribes, environmentalists, locals and others start court cases they point and say, "see? Job killing ____________!" (fill in the blank) and some people will believe it. That will lead to more polarization and even violence - a more divided state. Realize that they know there will be no mine up there in the Penokees. Please see:

http://woodsperson.blogspot.com/2012/11/the-penokee-deposit-oh-never-mind.html

TheMatador
TheMatador

Oh don't worry. That huge hole will fill with water and magically trees will sprout and hundreds of species of fish with magically appear and be able to survive in this massive hole in the ground. It'll only take maybe 6-7 months, tops, and the environment will be all back to normal. *sarcasm off*

ginrummy
ginrummy

Yes Nav, that is democracy. But it's not confined to laws passed by republicans. Take Obamacare for example. And now that we know the new norm, all new laws will end up in courts.

witness2012
witness2012

GR, the supreme court ruled on the Affordable Care Act last summer and found it to be constitutional. It's the law of the land- deal with it.

DJZ324
DJZ324

Tom Tiffany is a corporate hack who would destroy our resources if it made him and his family money. Can't be trusted with taking out the garbage let alone protection public resources. And that's the good news.

Nav
Nav

If it is a controversial (unpopular) bill proposed by Governor Walker and passed by the Republican legislature, it is almost guaranteed to be challenged in court. This is how it should be in a democracy.

AllAmerican11B
AllAmerican11B

Was that sarcasm?

witness2012
witness2012

AA11B, the reason that the laws passed in the last legislative session have been tied up in court is not that they are unpopular, but that they are unconstitutional and represent an 'overreach' by the GOP. This mining bill, AB426, follows that pattern.

If the state ignores federal law and tribal sovereignty and the state 'public trust' doctrine in their new mining bill, it is unconstitutional and will be tossed and it will be at great expense to the state.

AllAmerican11B
AllAmerican11B

Please take a moment to actually read what Nav wrote, THAT was what I was replying to. You made an incorrect assumption.

AllAmerican11B
AllAmerican11B

The courts are there to determine what if the law has been broken not to render judgments on bills that are considered controversial or unpopular; if there is nothing illegal about the bills then the cases need to be thrown out of court with extreme prejudice.

This is NOT how it should be in a democracy!!

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