The Social License: Will the people issue a permit?

This is the last in a series of eight posts which together comprise an in-depth article concerning a proposed iron ore mine in the Penokee Hills of Northern Wisconsin and the widespread resistance to the project.

One irony about the new mining regulations the Wisconsin State Legislature passed and Governor Walker signed is that, rather than expediting and simplifying the permitting process for a mining company, as intended, they actually slow down the process and may have ultimately eliminated a meaningful regulatory role for the State.

Federal agencies, namely the Army Corps of Engineers and the Environmental Protection Agency (EPA), will have a large say over whether or not a mine in the Penokees is permitted. Normally the DNR and the Army Corps would collaborate on the review process and drafting of an Environmental Impact Statement but the Corps warned the State during hearings on the new legislation that it might not be able to do so in the future.

The Corps wrote the Wisconsin DNR in late December, 2013, stating: “Thank you for your request that we consider entering into a Memorandum of Understanding for the development of a joint Federal/State Environmental Impact Statement (EIS) for the proposed Gogebic Taconite mine in northern Wisconsin. At this time, we must decline the request to jointly develop an EIS, due to differences between the state and federal environmental review requirements that would likely apply to the proposed project.” Copies of the letter went to GTac, the EPA and the Bad River Tribe.

“The Corps is not going to be limited by the State’s timetable,” Al Gedicks said. “The Corps said ‘You can pass whatever laws and timetable you want, but we have a job to do, which is to evaluate the scientific integrity of this process, and if that takes three years or five years, that’s how long it’s going to take.’

“This raises fundamental questions about the premise of the iron mining bill, whether the premise was to permit a mine or whether to attack the integrity of the Mining Moratorium Law and essentially give a green light to other companies that will come after GTac and further use a battering ram to eliminate any kind of environmental restriction,” said Gedicks.

The EPA has regulatory authority under the Clean Water Act and, in fact, the Bad River Ojibwe tribe has been designated by the EPA with status similar to a state to implement and manage the Clean Water Act and Clean Air Act within its jurisdiction.  The EPA, for its part, recently put the kibosh on the proposed Pebble Mine in Alaska. At more than 2,000 feet deep, the mine would have been one of the largest open-pit mines in the world, generating 10 billion tons of toxic waste. A review by the EPA concluded that the project posed potentially “catastrophic” risks to Bristol Bay and its $480 million salmon fishery.

On July 1, 2014 I met with Tony Janisch, Executive Director of the Bad River Watershed Association, at his office in Ashland. “I believe this battle isn’t going to be won in Mellon or Madison,” he told me. “I think it’s going to be won in Washington. I think the fact that the tribes and the ceded territories are an issue, I think that’s where it’s going to have its play, at the federal level.

“I also believe, and this is my gut feeling,” Janisch added, “that GTac’s gonna leave, but they’ve opened the door for any other company to come in and take over, and we know historically that this happens in mining operations. One company lays the groundwork, they develop this perceived profit, and sell it off to another company. And the laws have been changed so it will be easier for another company to come in.”

Al Gedicks and several others I spoke with referred to the notion that nowadays there’s a new type of permit or license that is not issued by any government agency. People call it the social license.

Bad River near Red Granite Falls

The Bad River near Red Granite Falls

“We have this new term in the mining literature called the social right to operate,” Gedicks explained. “The mining industry understands that getting a permit from a state agency or a government is only the first step in a long process to have a successful extraction. If those government-sanctioned permits and activities are not met with the approval of people at the local level, there are going to be increasing challenges by organized groups of indigenous people, or peasants, or combinations of indigenous and peasants and ordinary workers, as we’re seeing right now in the Lake Superior region.

“When you are displacing massive indigenous populations all over the world, those populations are not any longer going to sit down and have their economies and cultures destroyed without putting up opposition,” said Gedicks. “That means increasing military budgets for pacification, militarization of mining zones, and enormous amounts of resources directed from human needs to an increasing military machine.

“We are seeing, for the first time in the State of Wisconsin, the militarization of a domestic mining zone, with GTac hiring a private security firm to police an area, not from so-called terrorists, but from the public, which wants to have scientific information to make decisions about what resources are extracted and under what conditions.”

Patty Loew at Kakagon Sloughs-0794

Patty Loew

“We’re willing to absorb and accommodate all sorts of things,” said Patty Loew, “but when it gets to our center, and that’s the land, and the cycles and the values and the ethics and the stewardship and everything else about us, that’s where the line gets drawn in the sand and this is what’s being threatened right now.

“I’ve spoken to some of the wisest, most mild-mannered people in my tribe,” she confided, “people who I respect who have incredible wisdom and knowledge, and some who have western degrees and teach at Northland College, people that I know to be really level-headed, who have looked me in the eye and said ‘That mine will not go in here. It will literally go in over my dead body.’ “

GTac cited several reasons for its decision in early 2015 to pull out of Wisconsin for the second time. The company claimed they were surprised at how many wetlands their consultants had discovered on the would-be mine site, and they were concerned about the cost of replacing damaged or destroyed wetlands. They also noted the precedent of the Alaskan Pebble Mine. What they didn’t mention much was the drop in value of iron ore on the world market, largely precipitated by the cooling off of China’s economy. Thomas Powers was quoted in Madison’s Isthmus in late 2015 as saying that the price of iron ore had plunged from nearly $200 per ton to about $50 a ton. Finally, perhaps GTac realized it would have trouble obtaining its “social license” to mine.

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In reviewing a recent book by Ojibwe novelist Louise Erdrich in the New York Review of Books, Joyce Carol Oates wrote:

“The risk for the culturally displaced is that family life, the core of their existence, will be undermined by the malevolent, rapacious, larger society beyond the reservation.”

I doubt one could find a more apt word than rapacious to capture the mindset and political agenda of Scott Walker and Wisconsin’s Republican legislators. When I talked to people–both native and non-native–over the course of 2014 concerning the conflict in the Penokees, I often asked them: what is at stake here? More often than not, their answer had to do with preserving the integrity of a people, their culture, and their place.

Bad River Pow-Wow at Odanah-0843

A Bad River pow-wow at Odanah

The Nature Conservancy has made a significant investment in the Bad River Watershed, protecting close to 27,000 acres of land. Of course, TNC’s primary mission is to invest in places where natural diversity and rare and endangered species are at risk. When it comes to this million-acre watershed, the organization has inventoried a multitude of resources and species that could be jeopardized by an open-pit, iron-ore mine. These include threatened and endangered species in the Kakagon-Bad River Sloughs such as the Piping Plover, Trumpeter Swan, Yellow Rail and Ram’s-head Lady-slipper Orchid. The upland forests provide safe haven for declining forest birds such as the Golden-winged Warbler, Blackburnian Warbler and Goshawk. Of utmost importance, the watershed links two national forests and sustains a wildlife corridor stretching from Northern Wisconsin to Michigan’s Upper Peninsula. This corridor is critical for wide-ranging mammals that include moose, elk, wolf, pine marten and bear.

But despite all this, when I asked Matt Dallman of The Nature Conservancy what he thought was really at stake in the Penokees, his answer was simple and straight-forward: “This project is really about water, and water’s a long-time process and we all need it. This public resource needs to be considered as we look at profits gained by a few and this common resource that benefits many.

“To me, the biggest thing at stake isn’t the rarest thing out there. It’s the quality of life and this cultural connection of a people to a plant, this food that grows on water. To me, that wild rice is essentially endangered if this gets mined.”


Tribal Chair Mike Wiggins-0486

Mike Wiggins

Al Gedicks is not what you would call an ivory-tower academic. He has been fighting alongside native people for decades in support of environmental justice. When he speaks, there is always passion and sometimes anger in his voice. “This is classic environmental racism,” he insists. Consultation is a requirement of the treaties negotiated between the Chippewa and the federal government in the 1800s, Gedicks notes, and being excluded from the mine permitting process and prohibited access to ceded land is a violation of treaty rights.

“This is a direct threat to the survival of this culture,” he told me. “It is an ethnocidal threat. If those downstream discharges that inevitably will occur when that waste get placed at the headwaters of the Bad River Watershed, and when those wastes enter the Kakagon Sloughs and Lake Superior, that’s going to destroy not just the economy but the entire culture of the Bad River Chippewa. This is the place where they either survive or they die.”

“Capitalism does not have a conscience,” concludes former Bad River Chair Mike Wiggins, who often sounds like a philosopher when he speaks. “Economics does not have any variable that would allow for a conscience or a consciousness as it relates to things of ‘no value’. So the preservation of ecosystems has no economic value in a capitalistic model. The profit has to be as immediate as possible.

“Shadowing us, like a blanket of death, is the absolute give-away of Wisconsin’s land, waters and environmental protections in the form of the new mining bill written by GTac lobbyists. This is a corporate takeover of Wisconsin, pure and simple,” Wiggins said.

“The last thing that any mining company has to have in order to operate is a social license and there will never be a social license granted by the Bad River Tribe. When it comes time to demonstrate how that social license is rejected, it’s probably going to take place up in the Penokee Hills, and it isn’t going to be a positive thing.

“As long as that ore is in the ground, there’s a shadow over this part of the Lake Superior basin that will never go away,” lamented Wiggins. “Nobody wants to die on a fricken mountainside at the hand of some trained special forces mercenary. Who the hell wants to die that death?  I don’t. But I’ve come to understand that there’s other ways to die too. Rotting in a prison cell is another form of death. At the same time, to stand by and watch my river die … “

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All photos by Tom Boswell©2015. All rights reserved.

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