2010-2014: Clean Water Act Lawsuit

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.

Milwaukee Journal Sentinel_Toxins at Flambeau Model Mine_Nov 2011_P1

To read the complete article about the serious pollution problems at the Flambeau Mine site click HERE.

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.

Plaintiffs:

Defendant: Flambeau Mining Company (FMC; http://www.flambeaumine.com/; Website Static Image)

Plaintiffs’ Legal Team:

Law Firm of McGillivray, Westerberg and Bender, LLC (Madison, WI); Website Static Image

  • Attorney James Saul
  • Attorney Pamela McGillivray
  • Attorney Christa Westerberg
  • Attorney David Bender

Center for Biological Diversity (Duluth, MN); Website Static Image

  • Attorney Marc Fink

Earthrise/Pacific Environmental Advocacy Center, Lewis & Clark Law School (Portland, OR); Website Static Image

  • Attorney Kevin Cassidy
  • Attorney Dan Mensher

Defendant’s Legal Team:

Law Firm of DeWitt, Ross & Stevens (Madison, WI) ; Website Static Image

Plaintiffs’ Scientific Team:

Center for Science in Public Participation (Bozeman, MT); Website Static Image

  • Dr. David Chambers

RJN Environmental Services (Oregon, WI); Website Static Image

  • Robert Nauta, P.G.

Court of jurisdiction and judge assigned to hear the case:

Expert Reports:

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) 

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)

Court of jurisdiction and three-judge panel assigned to hear the appeal and cross-appeal (Appeal No. 12-2969 and 12-3434):

Public Statements and News Coverage:

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