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Lease Renewal in the Land of 10,000 Lakes: Mining in the Boundary Waters

Lease Renewal in the Land of 10,000 Lakes: Mining in the Boundary Waters

Kelsey Godin

Carved out by glaciers, the Boundary Waters Canoe Area Wilderness (BWCAW) houses 1,500 miles of canoe routes, 2,200 designated campsites, and more than 1,000 lakes and streams.[1]The glaciers left behind cliffs, canyons, rolling hills, souring rock formations, sandy beaches, and rocky shores.[2]In the Superior National Forest, more than 1 million acres of Minnesota is protected under the Wilderness Act of 1964,[3]and the Boundary Waters Canoe Area Wilderness Act of 1978.[4]Signing the Wilderness Act, Lyndon B. Johnson preserved the BWCAW as part of the National Wilderness Preservation System.[5]The BWCAW is one of the most visited public land areas in the United States.[6]More than 200,000 people visit this pristine wild area annually.[7]

In May of 2018, the Interior Department reinstated two 50-year-old sulfide mining leases for the area upstream of the BWCAW.[8]Interestingly, these leases are expired, and the Interior Department previously denied them in 2016.[9]Mining in this area poses significant threats to the Boundary Waters’ water quality and ecology, and the recreation of this protected land. President Trump cut short, and then halted all together, an essential environmental assessment that started under the Obama Administration.[10]

It is likely that reinstating the leases without a proper environmental assessment violates the National Environmental Policy Act (NEPA).[11]NEPA is relevant when agencies consider “major Federal actions significantly affecting the quality of the human environment,” and requires an environmental impact assessment of the affected area.[12]Further, reinstating the expired leases came after the Forest Service decided not to renew them in 2016 because of potential devastating environmental effects.[13]Thus, the Interior Department likely made an arbitrary decision to reverse its prior decision not to renew the mining leases. Additionally, the Boundary Waters Canoe Area Wilderness Act of 1978 was a promise to protect the Boundary Waters.[14]Mining in this area is likely unlawful pursuant to the Act that preserved the Boundary Waters’ immaculate wilderness.

Part I of this note will cover relevant background of public lands, what federal agency manages the BWCAW, and the laws that govern the management of the BWCAW. Part I will also explain mining in the Boundary Waters and the details of the reinstated sulfide mining leases. Part II will address relevant environmental and public land law to analyze an argument against reinstating the expired leases and mining without a proper environmental impact assessment. Section III will conclude the legality issues involved with the proposed sulfide mining in the BWCAW area.

[1]Boundary Waters Canoe Area Wilderness, Explore Minn., http://www.exploreminnesota.com/things-to-do/3582/boundary-waters-canoe-area-wilderness (last visited Oct. 18, 2018).

[2]Boundary Waters Canoe Area Wilderness, U.S. Forest Serv., https://www.fs.fed.us/visit/destination/boundary-waters-canoe-area-wilderness (last visited Oct. 18, 2018) [hereinafter Wilderness Act].

[3]The Wilderness Act, The Wilderness Soc’y, https://wilderness.org/article/wilderness-act (last visited Oct. 22, 2018).

[4]Act of Oct. 21, 1978, Pub L. No. 95–475, 92 Stat. 1649 (1978).

[5]Wilderness Act, supra note 3.

[6]Explore the BWCAW, Friends Boundary Waters Wilderness, https://friends-bwca.org/explore/bwcaw/ (last visited Oct. 22, 2018).

[7]Id.

[8]Richard Moe, Rushing to Ruin the Boundary Water Wilderness, N.Y. Times, https://www.nytimes.com/2018/05/17/opinion/trump-mining-boundary-waters-wilderness.html (last visited Sept. 30, 2018).

[9]Obama Administration Takes Steps to Protect Watershed of the Boundary Waters Canoe Wilderness Area, U.S. Dep’t of Agric., https://www.usda.gov/media/press-releases/2016/12/15/obama-administration-takes-steps-protect-watershed-boundary-waters (last listed Sept. 30, 2018).

[10]Dino Grandoni & Juliet Eilperin, Trump administration cancels detailed review of Obama-era mining ban near Minn. Wilderness, Wash. Post, https://www.washingtonpost.com/news/energy-environment/wp/2018/01/26/trump-administration-cancels-detailed-review-of-obama-era-mining-ban-near-minnesota-wilderness/?utm_term=.e6f2b71c6242 (last visited Sept. 30, 2018); U.S. Dep’t of Agric., USDA Removes Roadblock to Mineral Exploration in Rainy River Watershed, https://www.usda.gov/media/press-releases/2018/09/06/usda-removes-roadblock-mineral-exploration-rainy-river-watershed (last visited Oct.. 22, 2018).

[11]42 U.S.C. § 4332(2)(c) (1969) (requires federal agencies to preform environmental assessments of the effects of the proposed actions before making decisions).

[12]Id.

[13]Letter from Karen Mouritsen, State Dir. of E. States Office of Bureau of Land Mgmt., to Ian Duckworth, Chief Operating Officer of Twin Metals Minn., (Dec. 15, 2016).

[14]Act of Oct. 21, 1978, Pub L. No. 95–475, 92 Stat. 1649 (1978).

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