Former White House lawyer talks about treaty rights and environmental issues in Minnesota


State and federal agencies are currently seeking public comment that could impact the future of copper-nickel mining near the Boundary Waters Canoe Area, on tourism along the north coast and on the economy of northeastern Minnesota.

With so many public comment periods currently open, including for some of the most pressing environmental issues facing the region right now, it is worth analyzing the real value or role of these public comment periods when it’s about shaping policy and decision-making by state and federal governments.

Richard Painter is a professor of law at the University of Minnesota and a former White House ethics lawyer for George W. Bush. He is considering a candidacy for governor of Minnesota in 2022.

In a recent interview with WTIP, Painter said the public comment periods currently open by the Minnesota Department of Natural Resources and the US Forest Service are valuable. He encouraged people to find out about the issues and submit comments to the agencies.

“Participate in public comment periods,” Painter said. “Submit your point of view on the impact of all these projects on the environment, on the quality of life of the people of Minnesota. “

There are three major issues in the region for which state and federal agencies are currently accepting public comment. The challenges are:

1. Considerations for proposed a “mineral withdrawal” – a 20-year ban on all new mining operations – in the hydrographic basin of the bordering waters.

2. DNR revision of the siting rule for non-ferrous mines near the BWCA.

3. One proposed expansion of the Lutsen mountains, the local ski resort on the North Shore in Cook County.

Painter told the WTIP that public comment periods are an important part of the process when it comes to navigating these types of environmental reviews and decision-making at the state and federal levels. However, officials of the US Forest Service continue to emphasize public consultation periods on an environmental impact study are not opinion polls. In other words, whichever side of an issue receives the most feedback for or against a project or process won’t necessarily determine the outcome.

And while public comments can have an impact on decision-making, Painter said there are two notable realities beneath the surface that can play a role as well: money and politics.

Take, for example, a situation in 2020 when the six Ojibwa bands forming the Chippewa tribe of Minnesota wrote a letter in favor of a federal bill to prohibit copper-nickel mining in the BWCA watershed. Just days after the letter was sent, the Bois Forte Band of Chippewa and the Fortune Bay Resort Casino received a wave of phone calls and emails from various groups and politicians seeking to cancel events, including the Senator from Tom Bakk State.

Painter said the situation with Bakk illustrates how money and politics can attempt to control state and federal decision making.

“In other words, if you stand up for your treaty rights, if you stand up for drinking water, we’re going to boycott your business,” Painter said. “And that’s no way to play politics in Minnesota.”

The painter said that the Treaty of 1854 must be considered for any environmental issues that the WTIP listening area and northeastern Minnesota are currently facing.

“It is absolutely essential that we honor these treaty rights,” said Painter. “And the United States has a history, of course, stretching back centuries to making treaties with Native American tribes and then breaking the treaties. So we have a treaty, we have treaties with the tribes, what are we going to do, are we going to break the treaties again? “

And regarding the proposed expansion of the Lutsen Mountains, Painter said treaty rights must be factored into any decision made by the US Forest Service.

“We are bound by our treaties with the Native American tribes. So at the end of the day this ski resort cannot expand if it violates this treaty, ”Painter said. “Now, if they want to renegotiate the treaty with the tribe, they can discuss it. But at the end of the day, there is a treaty there, and that treaty is enforced, and the treaties must be respected. And I know we’ve broken a lot of treaties with Native American tribes in the past, but that doesn’t mean when we can do that in the future. And that doesn’t mean it was right then and it’s not now.

Painter recently published an article at the intersection of money, politics and environmental issues.

He also recently spoke with Joe Friedrichs of WTIP on these topics. Its below.


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