United States District Court for the Western District of Wisconsin:
Case No. 11-cv-45
Despite industry claims that the Flambeau Mine has succeeded in protecting the environment from adverse impact, the facts prove otherwise.
In a Nutshell, here’s the story of the Flambeau Mine Clean Water Act Case:
Laura Gauger, along with the Wisconsin Resources Protection Council and the Center for Biological Diversity, sued Flambeau Mining Company (a Kennecott/Rio Tinto subsidiary) in federal court in January 2011 over the pollution of a tributary of the Flambeau River that, because of high copper levels linked to the company’s Flambeau Mine, was in the process of being added to the U.S. Environmental Protection Agency (EPA) list of “impaired waters” (the stream was officially added to the list, effective April 2012). They won in U.S. District Court, but the decision was later overturned on a technicality. The Court of Appeals did not dispute the fact that the tributary was polluted. Rather, the polluter was pardoned because the Wisconsin Department of Natural Resources had made a mistake by not requiring them to secure a federally-mandated permit that would have put limits on the amount of copper discharged to the stream. As of this posting (June 2016), the tributary remains on the EPA’s impaired waters list.
Here are the details:
A Notice of Intent to sue Flambeau Mining Company (FMC; a Kennecott/Rio Tinto subsidiary) in federal court over violations of the Clean Water Act was delivered to FMC in November 2010, and the official complaint was filed in the U.S. District Court for the Western District of Wisconsin in January 2011. Plaintiffs included the Wisconsin Resources Protection Council (WRPC; www.wrpc.net), the Center for Biological Diversity (CBD; http://www.biologicaldiversity.org/) and Laura Gauger (Duluth, MN).
According to the complaint, the mining company was violating federal law by routinely discharging contaminated stormwater runoff from a biofilter/pond on the mine site to a tributary of the Flambeau River (known as Stream C) without a Clean Water Act permit. Stream C, designated navigable by the Wisconsin Department of Natural Resources (DNR), flows across a portion of FMC’s property and, since at least 2002 (when testing first began), had consistently registered copper levels exceeding water quality standards set to protect fish and other aquatic species.
Key evidence submitted to the U.S. District Court by the plaintiffs included a study done by the Wisconsin DNR entitled: Surface Water Quality Assessment of the Flambeau Mine Site – April 2012. The Department assessed, among other things, copper and zinc levels in Stream C. They looked at old data, collected new data and found that toxicity standards set to protect fish and other aquatic species were routinely exceeded in the tributary. The Department subsequently recommended to the United States Environmental Protection Agency (EPA) that Stream C be listed as “impaired” for copper and zinc toxicity linked to the mining operation.
Here is how the case played out in court:
- A week-long trial was held before Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin in May 2012. One of the more outrageous developments at trial involved the testimony of James Hutchison, a lead environmental engineer at Foth Infrastructure & Environment (consultant to FMC). Mr. Hutchison, under oath, testified that the “blue line” clearly shown on any number of Foth diagrams depicting the flow of water from the biofilter/pond to Stream C, did not correctly portray the hydrology at the mine site. Rather, Hutchison claimed that the “blue line,” which he took responsibility for drawing on those diagrams, was just something “in [his] head.” This was part of FMC’s overall strategy, at trial, to assert that contaminated water from the biofilter had never made its way to Stream C and that the company, therefore, was not in violation of the Clean Water Act. Judge Crabb didn’t buy it.
- The final opinion and order, rendered by the Court in July 2012, found FMC to be in violation of the Clean Water Act on numerous counts. Still, the Court assessed only minimal civil penalties against FMC ($275) and characterized the pollution of Stream C as “de minimis” despite the routine exceedances of water quality standards documented by the Wisconsin DNR in its report. The Court also approvingly noted FMC’s efforts to remediate the mine site despite the Wisconsin DNR’s recommendation to the EPA that Stream C be listed as “impaired” for copper and zinc toxicity linked to the mining operation. In addition, the Court denied WRPC, CBD and Laura Gauger (the prevailing plaintiffs in a Clean Water Act case) their attorneys’ fees, and did so before they had even asked for them.
- Elements of the district court’s decision were appealed by both FMC and the plaintiffs to the U.S. Court of Appeals for the Seventh Circuit. FMC’s opening brief and appendix were filed on January 7, 2013 , and the plaintiffs filed their brief and appendix on February 6, 2013. Oral arguments were heard by a 3-judge panel of the appellate court on April 23, 2013 in Chicago. Attorney James Saul (McGillivray, Westerberg & Bender, Madison, WI) argued the case for the plaintiffs, and Attorney Harry Van Camp (DeWitt, Ross & Stevens, Madison, WI) argued the case for Flambeau Mining Company.
- The U.S. Court of Appeals handed down its decision on August 15, 2013. The 3-judge panel did not dispute the U.S. District Court’s finding that Flambeau Mining Company/Rio Tinto had indeed discharged contaminated runoff from the Flambeau Mine site into public waters on an ongoing basis since at least 2006 (statute of limitations). However, they ruled that actions taken by the State of Wisconsin when issuing the various mining-related permits to FMC shielded the company from prosecution under the Clean Water Act, regardless of whether or not the Wisconsin DNR had erred in its administration of the Act (which indeed seems to be the case, since the stream at the heart of the lawsuit (Stream C) has now been listed as “impaired” for copper and zinc toxicity linked to the mining operation). As a result, the plaintiffs could not enforce the Clean Water Act against FMC, even though the company had indeed violated the Act, as determined by the U.S. District Court. In effect, the appellate court’s decision allowed errors made by the Wisconsin DNR in its administration of the Clean Water Act to shield Flambeau Mining Company from prosecution.
In the process, no one was held accountable for the fact that the Flambeau Mine has polluted a tributary of the Flambeau River to the point where the tributary has been added to the United States EPA’s list of “impaired waters.” And absolutely NOTHING has been done about the high levels of toxins (most notably manganese) in the groundwater at the mine site. You see, groundwater pollution at mine sites in Wisconsin (and for up to 1200 feet out from the edge of a mine site – that’s nearly a quarter mile) has been legalized by the Wisconsin Legislature and Wisconsin DNR (see NR 182.075, Wisconsin Administrative Code), so the plaintiffs could not argue that point in either state or federal court..
- On August 29, 2013 counsel for the plaintiffs filed a detailed petition for rehearing with the Seventh Circuit. As explained by Attorney James Saul, the petition was filed because the decision of the 3-judge panel “conflicts with prior decisions of this Court, and because the proceeding involves several questions of exceptional importance.” He continued, “Panel rehearing is also appropriate to correct several points of fact that the panel overlooked or misapprehended.”
- On September 20, 2013, the Seventh Circuit denied the plaintiffs’ petition for rehearing without explanation.
- On October 18, 2013, FMC filed two separate motions with the U.S. District Court for the Western District of Wisconsin, seeking a total of $157,400 in payments from the plaintiffs: (1) “Motion for and Brief in Support of Clean Water Act Litigation Costs” (totaling $82,500); and (2) a “Bill of Costs” for additional expenditures (totaling $74,900).
- On November 8, 2013, attorneys for WRPC, CBD and Laura Gauger filed a brief in opposition to FMC’s motion for “Clean Water Act litigation costs.” A second brief in opposition to FMC’s “bill of costs” was filed by the plaintiffs on November 12, 2013.
- On February 5, 2014, the Court denied FMC’s motion for payment of “Clean Water Act litigation costs.” The Court agreed with the plaintiffs that controlling case law requires a finding that a Plaintiff’s suit was frivolous or meritless before fees may be awarded to a prevailing CWA defendant. As the Court stated:“Plaintiffs prevailed on summary judgment on their claim that defendant could be held responsible for discharging pollutants without a permit because it did not actually hold a Clean Water Act permit. Their claim was not obviously meritless.”
- On March 25, 2014 the Clerk of Court for the Western District of Wisconsin acted on FMC’s “Bill of Costs” and assessed costs in the amount of $63,183.83 in favor of FMC. This represented only a modest reduction from the $74,900 in costs FMC had initially sought. The very short order by the clerk included little discussion of the myriad legal issues briefed by the plaintiffs.
- On April 1, 2014 the plaintiffs filed a motion for review of the clerk’s taxation of costs. FMC filed a response on April 8, 2014.
- In June 2014 the EPA officially approved the 2012 recommendation from the Wisconsin Department of Natural Resources (WDNR) that Stream C at the Flambeau Mine site be listed as impaired for copper and zinc toxicity linked to the Flambeau Mine operation. As such, Stream C is now included on what is known as the Clean Water Act’s Section 303(d) list for Wisconsin (effective April 2012). Click HERE to see the official EPA approval in its entirety (Stream C appears on page 66 of the document) and click HERE to see how WDNR has reported the Stream C impaired waters listing on its website (September 2014 static image). Unfortunately, however, since the court case was already concluded, the June 2014 EPA action could not be factored into the proceedings.
- On August 1, 2014 the Court handed down its order on FMC’s “Bill of Costs.” The plaintiffs were ordered to pay the polluter’s court costs to the tune of $61,500. This was a reduction in the amount originally requested by FMC and taxed by the Clerk of Courts but still represented a substantial amount of money for the plaintiffs to pay.
- As one of three plaintiffs in the court case, Laura Gauger launched a fundraising campaign in September 2014 to help pay her share (1/3 of $61,500 = $20,500) of the court costs awarded to FMC/Rio Tinto. Within 3 weeks of time, her goal of $20,500 had been met. Click here for copies of Laura’s : (1) fundraising letter ; (2) “Donate Online” webpage ; and (3) “Donate Via Check” webpage . In addition, news stories regarding the fundraiser can be seen by clicking HERE.
Additional key points related to the case include the following:
- The Clean Water Act violations that were proven at the U.S. District Court trial and subject to penalties occurred 2007-2012 at the Flambeau Mine site; there is clear and undisputed evidence that even more severe violations occurred 1999-2006 but were outside the 5-year statute of limitations.
- The real concern is that toxic discharges to a navigable water were occurring continually at the Flambeau Mine site from 1999-2012: i.e., that even 14 years after the mine stopped operating there were still toxic levels of copper and zinc coming off the site.
- The U.S. District Court unambiguously held that the pollutant discharges without a Clean Water Act permit were unlawful. Because all such permits require more regular (and more targeted) monitoring than what FMC was otherwise required to do, it is likely that additional toxic discharges would have been uncovered had the company held such a permit.
Details of the lawsuit and subsequent appeal, including various legal briefs filed in the case, are provided below.
- Wisconsin Resources Protection Council (WRPC; Website Static Image; http://www.wrpc.net/)
- Center for Biological Diversity (CBD; Website Static Image; http://www.biologicaldiversity.org/)
- Laura Gauger (Duluth, MN); Website Static Image
Plaintiffs’ Legal Team:
- Attorney James Saul
- Attorney Pamela McGillivray
- Attorney Christa Westerberg
- Attorney David Bender
- Attorney Marc Fink
- Attorney Kevin Cassidy
- Attorney Dan Mensher
Defendant’s Legal Team:
- Attorney Harry Van Camp ; Website static image
- Attorney Henry Handzel ; Website static image
- Timm Speerschneider ; Website static image
- Attorney Scott Paler ; Website static image
- Attorney Megan Senatori ; Website static image
Plaintiffs’ Scientific Team:
- Dr. David Chambers
- Robert Nauta, P.G.
Court of jurisdiction and judge assigned to hear the case:
- United States District Court for the Western District of Wisconsin (Madison, WI) – Case No. 11-cv-45
- Judge Barbara Crabb – http://en.wikipedia.org/wiki/Barbara_Brandriff_Crabb (Carter appointee); Website Static Image
- Plaintiffs: Expert Report of Dr. David Chambers, October 10, 2011
- Plaintiffs: Declaration of Dr. David Chambers (November 15, 2011) plus Exhibit A (resume’) Exhibit B (FMC Monitoring Locations) Exhibit C (WDNR Monitoring Locations) and Exhibit D (Table of Water Quality Analyses)
- Plaintiffs: Expert Report of Dr. David Chambers on Injunctive Relief (February 24, 2012)
- Plaintiffs: Supplemental Report of Dr. David Chambers (March 9, 2012)
- Plaintiffs: Expert Report of Robert J. Nauta, P.G., October 10, 2011
- Plaintiffs: Supplemental Report of Robert J. Nauta, P.G. (March 8, 2012)
- Plaintiffs: Declaration of Dr. John Coleman (November 13, 2011)
- WDNR: Surface Water Quality Assessment of the Flambeau Mine Site, Wisconsin DNR (April 2012)
- WDNR: Macroinvertebrate Sampling and Analysis at Flamvbeau Mine Site, Wisconsin DNR (Apr 2011)
- Defendant FMC: Expert Report of Stephen Donahue (March 28, 2011)
- Defendant FMC: Expert Reports of Elizabeth Day and Stephen Donohue (November 2011)
Historic Court Documents Filed in the Case (Court of Jurisdiction: U.S. District Court for the Western District of Wisconsin – Case No. 11-cv-45)
- 003_ Notice Letter filed by WRPC/CBD/Gauger (November 16, 2010)
- FMC Response to Notice Letter (December 30, 2010) plus Referenced Documents: (1) Letter from Wisconsin Department of Justice to WRPC (November 20, 2009); and (2) Letter from Wisconsin Department of Justice to WRPC (April 23, 2010)
- 001_ Complaint filed by WRPC/CBD/Gauger (January 18, 2011)
- 006_ FMC response to Complaint filed by WRPC/CBD/Gauger (February 9, 2011)
- 018-1_ Defendant’s Draft Brief in Support of Motion for Summary Judgment on Permit Shield Defense (August 12, 2011)
- 039_ WRPC/CBD/Gauger Motion for Partial Summary Judgment (November 16, 2011)
- 041_ Declaration of Laura Gauger (November 16, 2011)
- 053_ WRPC/CBD/Gauger Brief in Support of Motion for Partial Summary Judgment (November 16, 2011)
- 055_ Defendant’s Supplemental Motion for Sanctions and Supporting Facts and Exhibits (November 18, 2011)
- 056_ Affidavit of Harry Van Camp in Support of Defendant’s Supplemental Motion for Sanctions (November 18, 2011)
- 057_ FMC Motion for Summary Judgment (November 21, 2011)
- 058_ FMC Brief in Support of Motion for Summary Judgment (November 21, 2011)
- 071_ Plaintiff’s Response to Defendant’s Supplemental Motion for Sanctions (November 29, 2011)
- 072_ Declaration of James Saul (November 29, 2011)
- 072-1_ Exhibit A to Saul Declaration (November 29, 2011)
- 073_Declaration of Laura Gauger (November 29, 2011)
- 094_ Declaration of Laura Gauger in Opposition to Defendant’s Motion for Summary Judgment (December 12, 2011)
- 122_ Motion in Limine filed by WRPC/CBD/Gauger (March 2, 2012)
- 124_ FMC Brief in Support of Motion to Dismiss (March 8, 2012)
- 137_ US District Court Opinion and Order on Motions for Summary Judgment (April 13, 2012)
- 224_ Declaration of Fred Fox in Opposition to Motion to Compel (May 16, 2012)
- 256_ US District Court Opinion and Order_Final_Flambeau Mine Clean Water Act Violations (July 25, 2012)
- 257_ US District Court Judgment_Final_Flambeau Mine Clean Water Act Violations (July 26, 2012)
- 258_ Motion to Amend Judgment filed by WRPC/CBD/Gauger for Awarding of Attorneys’ Fees (August 10, 2012)
- 258-1_ Proposed Motion for Award of Attorneys’ Fees filed by WRPC/CBD/Gauger (August 10, 2012)
- 258-16_ Declaration of Patrick Parenteau in Support of the Motion for Award of Attorneys’ Fees (August 8, 2012)
- 270_ Response filed by FMC in Opposition to Motion for Award of Attorneys’ Fees filed by WRPC/CBD/Gauger (September 13, 2012)
- 276_ Response filed by WRPC/CBD/Gauger to FMC’s Opposition to Award of Attorneys’ Fees (September 18, 2012)
- 277_ US District Court Order_Final_Denying Motion to Amend Judgment for Awarding of Attorneys’ Fees (September 28, 2012)
- 287_ FMC Bill of Costs (October 18, 2013)
- 288_ FMC Motion for Litigation Costs, (October 18, 2013)
- 289_ FMC Brief re Litigation Costs (October 18, 2013)
- 290_ FMC Donohue Declaration (October 18, 2013)
- 290-1_ FMC Donohue Declaration_Exhibit A (October 18, 2013)
- 291_ FMC Van Camp Declaration (October 18, 2013)
- 291-1_ FMC Van Camp Declaration_Exhibit A (October 18, 2013)
- 291-2_ FMC Van Camp Declaration_Exhibit B (October 18,, 2013)
- 295_ WRPC Brief in Opposition to FMC’s Motion for Litigation Costs (November 8, 2013)
- 301_ FMC Motion for Leave to Submit Reply Brief in Support of Motion for Litigation Costs_Plus Proposed Brief (November 22, 2013)
- 302_ FMC Response to Objections to Bill of Costs (November 22, 2013)
- 305_ WRPC Reply in Opposition to FMC’s Bill of Costs (November 27, 2013)
- 308_ Order Denying FMC Motion for CWA Fees (February 5, 2014)
- 309_ Clerk’s Order on Bill of Costs (March 25, 2014)
- 310_ WRPC Motion for Review of Taxation of Costs (April 1, 2014)
- 311_FMC Response to WRPC Motion for Review of Taxation of Costs (April 8, 2014)
- 313_Order on Review of Clerk’s Taxation of Costs (August 1, 2014)
Historic court documents filed in the appeal and cross-appeal of elements of the opinion and order rendered by the U.S. District Court for the Western District of Wisconsin (Courts of Jurisdiction: (1) U.S. District Court for the Western District of Wisconsin – Case No. 11-cv-45; and (2) U.S. Court of Appeals for the Seventh Circuit – Appeal No. 12-2969 and 12-3434)
- 259_ Notice of Appeal and Docketing Statement filed by FMC to reverse the US District Court decision whereby FMC was found to be in violation of the Clean Water Act (August 24, 2012)
- 261_ FMC Transmission of Short Record to US Court of Appeals (August 24, 2012)
- 278_ Notice of Appeal and Docketing Statement filed by WRPC/CBD/Gauger to reverse the US District Court decision whereby plaintiffs were denied attorneys’ fees (October 19, 2012)
- 280_ WRPC Transmission of Short Record to US Court of Appeals_October 19, 2012
- 004_ FMC Response to WRPC/CBD/Gauger Docketing Statement (November 1, 2012)
- 016_ WRPC/CBD/Gauger Response to FMC Response to WRPC/CBD/Gauger Docketing Statement (November 15, 2012)
- 018_ FMC Response re Appellate Jurisdiction (November 26, 2012)
- 019_ US Court of Appeals order deferring jurisdictional issue (November 30, 2012)
- 021_ FMC Opening Brief and Short Appendix (January 7, 2013)
- 030-1_ WRPC Submitted Opening Brief (February 6, 2013)
- 030-2_ WRPC Submitted Appendix (February 6, 2013)
- 033_ FMC Appellate Response Brief (March 8, 2013)
- 025_ WRPC Reply Brief Submitted for Review (March 22, 2013)
- 026_ WRPC Notice of Supplemental Authority (March 22, 2013)
- 039-1_ US Court of Appeals Notice of Oral Argument (March 26, 2013)
- 039-2_ US Court of Appeals Special Notice to Counsel (March 25, 2013)
- 052_ Decision of the US Court of Appeals for the Seventh Circuit (August 15, 2013)
- 055_ WRPC Petition for Rehearing (August 29, 2013)
- 057_ US Court of Appeals Denial of Petition for Rehearing
Court of jurisdiction and three-judge panel assigned to hear the appeal and cross-appeal (Appeal No. 12-2969 and 12-3434):
- United States Court of Appeals for the Seventh Circuit (Chicago, IL)
- Three-judge panel:
- Judge David Hamilton (Obama appointee) – http://en.wikipedia.org/wiki/David_Hamilton_(judge); Website Static Image
- Judge Kenneth Ripple (Reagan appointee) – http://en.wikipedia.org/wiki/Kenneth_Francis_Ripple; Website Static Image
- Judge Joseph Stadtmueller (Reagan appointee to the U.S. District Court for the Eastern District of Wisconsin, sitting by designation) – http://en.wikipedia.org/wiki/Joseph_Peter_Stadtmueller; Website Static Image
Public Statements and News Coverage:
- Press Release Issued by WRPC/CBD/Gauger: Lawsuit Filed to Stop Release of Toxic Metals at Wisconsin’s Flambeau Mine (January 18, 2011)
- Fact Sheet Distributed by WRPC/CBD/Gauger: Fact Sheet – Clean Water Act Citizen Suit against Flambeau Mining Company (January 18, 2011)
- Lawsuit filed against Kennecott subsidiary for water pollution at Flambeau Mine site, Keweenaw Now, January 25, 2011.
- “Tests Find Toxins at Model Mine,” Milwaukee Journal Sentinel, November 2, 2011
- Press Release Issued by WRPC/CBD/Gauger: Court: Flambeau Mining Company Violated Clean Water Act (July 25, 2012)
- “Court: Flambeau Mining Company Violated Clean Water Act,” Keweenaw Now, July 25, 2012.
- Personal Thank You from Laura Gauger: Victory_Flambeau Mine Lawsuit
- Press Release Issued by Gauger: Expanded Information (Regional/Tribal/Legal): Court Rules Flambeau ‘Model Mine’ Violated Clean Water Act (August 2012)
- Press Release Issued by FMC: Judge Finds Flambeau Mining Co. Committed to “Protection of the Environment and Preservation of Water Quality” (July 25, 2012)
- “Judge Rules Pollution at Flambeau Mine is Minimal,” Milwaukee Journal Sentinel, July 25, 2012
- “Federal Judge Rules Flambeau Mine Violated Clean Water Act 11 Times, Fines only $275, Ladysmith News, August 2, 2012
- “Judge Rules Flambeau Mining Company Violated Clean Water Act,” Freshwater Voices, Issue 3, 2012
- Statement from Laura Gauger, October 30, 2013
- Press Release issued by Laura Gauger, September 8, 2014
- Plaintiffs on the hook for $60,000 in court fees in connection to Flambeau Mine case, Jessica Van Egeren, Madison Cap Times, September 10, 2014; For a version of the article with live links, please click HERE
- Embattled Great Lakes woman fights to defend clean water, Ordered to pay mining company’s court costs, Fight Back News, September 10, 2014. For a static image of the article, please click HERE
- Minnesota Public Radio, Reporter Dan Kraker interviews Laura Gauger, September 9, 2014 (story aired several times on the newscast over the weekend of September 13-14, 2014).
- WORT-Public Radio (FM 89.9, Madison, WI), Esty Dinur (host of “A Public Affair”) interviews Laura Gauger, September 26, 2014. Click HERE and scroll down to September 26, 2014 – A Public Affair; NOTE: The interview with Laura starts at about 5 minutes into the tape.
- Fundraising Letter, USPS Mailing, September 2014
- Fundraising Appeal, September 11, 2014
- Fundraising Appeal, September 18, 2014
- Fundraising Appeal, September 24, 2014
- Embattled Great Lakes woman grateful for strong show of support, Keweenaw Now, September 27, 2014 ; For a static image of the article, please click HERE.
- Mission Accomplished, by Laura Gauger, November 2014
- Great Lakes woman struggles to educate people about pollution from Flambeau Mine, Brenda Austin, Win Awenen Nisitotung, October 17, 2014
- Why Laura Supports 16 Citizens Who Asked the EPA for Help in Wisconsin, Midwest Environmental Advocates Website, June 9, 2016