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

State and federal agencies are seeking input from the public at this time that could impact the future of copper-nickel mining near the Boundary Waters Canoe Area Wilderness, tourism along the North Shore and 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 at this time, it’s worth analyzing the value, or actual role of these public comment periods when it comes to shaping policy and decision making by state and federal governments.

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

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

“Get involved with the public comment periods,” Painter said. “Submit your views about the impact of all of these projects on the environment, on the quality of life for Minnesotans.”

There are three major issues in the region where state and federal agencies are currently accepting public comments. The issues are:

1. Considerations for proposed a “mineral withdrawal” — a 20-year ban on new mining — in the watershed of the Boundary Waters.

2. The DNR’s review of the nonferrous mine siting rule near the BWCA.

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

Painter told WTIP the 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 level. That being the case, officials from the U.S. Forest Service continue to emphasize the public comment periods on an environmental impact statement are not public opinion polls. In other words, whatever side of an issue receives the most comments in favor or against a project or process is not necessarily going to determine the outcome.

And while public comments can impact decision making, Painter said there are two noteworthy realities under the surface that can also play a role: money and politics.

Take, for example, a situation in 2020 when the six Ojibwe bands forming the Minnesota Chippewa Tribe wrote a letter in support of a federal bill to ban copper-nickel mining in the watershed of the BWCA. Just days after the letter was sent, the Bois Forte Band of Chippewa and Fortune Bay Resort Casino received a surge of phone calls and emails from various groups and politicians seeking to cancel events, including state Sen. Tom Bakk.

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

“In other words, if you speak out for your treaty rights, if you speak out for clean water, we’re going to boycott your business,” Painter said. “And that’s no way to conduct politics in Minnesota.”

Painter said the Treaty of 1854 needs to be considered for all of the environmental issues facing the WTIP listening area and northeastern Minnesota at this time.

“It’s absolutely critical that we honor those treaty rights,” Painter said. “And the United States has a history, of course, going back centuries of 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 yet again?”

And when it comes to the proposed expansion of Lutsen Mountains, Painter said treaty rights need to be factored into any decision made by the U.S. Forest Service.

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

Painter recently published a piece on the intersection of money, politics and environmental issues.

He also spoke recently with WTIP’s Joe Friedrichs about these topics. Audio below.