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Indian Nations Law Update - July 2011

July 19, 2011

Wisconsin Mining Law Symposium August 25th

The Wisconsin Bar Association will present a Mining Law Symposium Thursday, August 25, 2011 at the Jefferson Street Inn, 201 Jefferson St.,Wausau, Wisconsin, from 8:30 a.m. to 4:30 p.m. The backdrop for the symposium includes the renewed interest in mining as a result of high commodity prices generally and, in particular, the proposal by Taconite Mining Company to conduct mining operations in the Gogebic (aka Penokee) range in northern Wisconsin, upstream from the Bad River Chippewa Reservation. The symposium will address:

  • current state and federal mining laws;
  • the mining company's lobbying efforts to obtain dramatic changes in state mining laws;
  • impacts on headwater streams and remote natural resources;
  • impacts on tribes and treaty rights;
  • the role of science in mining law impact assessments and mine closure; and
  • royalties, mineral rights, and local land-use issues.

Godfrey & Kahn's Art Harrington, one of Wisconsin's preeminent environmental law attorneys, will provide an overview of federal, state and tribal laws that impact mining projects from the perspective of attorneys representing tribes. Thomas Pyper of Whyte & Hirschboeck will provide the mining company perspective. Mr. Harrington will also participate, with Forest County Potawatomi Attorney General Jeffrey Crawford, on a panel recounting the tribe's multiyear, successful effort to prevent sulfide mining in the Wolf River watershed.

The symposium has been approved for 7.5 Continuing Legal Education (CLE) credits. Following the legal symposium, a plenary session, open to the general public, will be held on the proposed mining site of the Gogebic Range near the Bad River reservation. Attorneys may register in the normal manner through the State Bar website. Search site for "mining law symposium."

New EPA Rules Present New Development Opportunities for Tribes

On July 1, 2001, the U.S. Environmental Protection Agency (EPA) finalized rules implementing Clean Air Act permitting requirements for facilities located in Indian country. These rules will become effective on September 2, 2011. Godfrey and Kahn assisted tribal clients in consulting with EPA on the content of the rule package and helped prepare comments during preparation of these rules.

Until now, EPA has promulgated rules only for major sources (those emitting 100 or 250 tons per year of criteria pollutants) in areas of Indian country where air is currently in attainment with national standards. EPA has now established New Source Review (NSR) rules for permitting both major and minor sources (those emitting less than 100 or 250 tons per year) in all areas of Indian country, including those areas currently not in attainment with national standards.

The rules establish a consistent federal process for EPA to issue permits to emission sources in all areas of Indian country. These rules attempt to bring permitting rules for Indian country on par with those of the states. For example, tribes seeking to establish facilities in Indian country may now seek to permit sources as "synthetic minors," a process by which an otherwise major source can voluntarily accept emissions limitations in its permit to effectively remain as a minor source. Until now, this streamlined approach for permitting facilities willing to accept emissions limits was not readily available to facilities in Indian country and was a potential roadblock to economic development projects.

While there still remain significant challenges in the permitting process, the NSR rule package now provides tribes with an administrative process for permitting facilities in Indian country. This provides opportunity to tribes seeking to pursue economic development proposals that may require permitting. Further, in order to streamline the permitting process for minor sources, tribes may request EPA to delegate administrative roles (not enforcement) to tribes to assist EPA in implementing the new rules for minor sources.

For further information regarding the NSR rule and how to effectively use the rule to help promote economic development and other projects in Indian country, contact John L. Clancy at jclancy@gklaw.com (414.287.9256) or Brian L. Pierson at bpierson@gklaw.com (414.287.9456).

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