Tags

, , , , , , ,

Following the 9/9/20 Minnesota Environmental Quality Board meeting, I decided I needed to speak out about the travesty I witnessed.

Here’s what I have to say.

I find the MEQB’s lack of public engagement disturbing and sickening. 

Where was the accountability of the MEQB Citizen Board Members in assuring a public voice was heard on the 2020 Water Plan?  As public appointees are they not beholden to assure the PUBLIC has a chance to share our concerns before a vote is made? Did they not see the raised hands in the WebEx? Did they feel no urgency to stop the vote so the public concerns could be addressed? In the end, only Ben Yawakie seemed to hear and heed the public outcry that day.

I have provided time stamps [h:mm:ss format] for referenced happenings in the partial MEQB recording of the meeting

I will grant that the MEQB allowed public comment on the 2020 Water Plan.  However, the meeting’s disabled Chat function allowed no interaction from the public.  In fact, after my Raised Hand was ignored for some time, I emailed their tech guy – who I know – to ask for help with being able to comment. The derailing of the MEQB process during the meeting gave clear evidence to how little time and consideration was truly being offered by the MEQB for public input. 

I’d like to highlight two speakers in particular from the day as they each raise issues pertinent to the way the process derailed in not allowing for true public engagement.  

In the 2020 State Water Plan, you recognize treaties with the Anishinaabe people, stating ‘the ability to exercise those treaty rights depends on clean water and healthy ecosystems.’ What is omitted is how you are going to ensure the health of ecosystems and clean water. 

As you acknowledge in the Water Plan, the Ojibwe word, ‘nibi’, means life-giving force. You follow that with, ‘This worldview contrasts with economic and political systems that value private property and often view land and water as commodities to buy, sell, and use.’ That is exactly what Enbridge is doing with Line 3–a climate change and water disaster that falls disproportionately on Indiginous people. How is it possible that this Water Plan talks about climate change but makes no mention of fossil fuel infrastructure, a major contributor to climate change and a threat to our water? 

In the wake of George Floyd’s murder, it is our time of awakening to the trifecta of race, pandemic and climate injustice. There is no denying the privilege that is represented in the, primarily white, EQB staff, appointees and agency leaders. No one gets a pass–we are all responsible for upholding treaties. 

Have white courage, use your privilege! Take this opportunity to put treaties at the forefront and create a State Water Plan that is, like our water, a life-giving force to ensure healthy ecosystems and clean water for all!”

Jaci Christenson (18:30)

Jaci was followed by Joe. 

Commend all of your work on a bold vision… yet I feel the cognitive dissonance I think we all feel in this plan where we address half of the problem, where we want to prepare MN waters for climate change but not prevent Climate Change or interrupt the fossil fuel infrastructure that is causing climate change that means the end of wild rice as we know it.” [This is critical when it comes to later concerns raised.]

Joe couldn’t help but feel “…in writing this aspirational plan that we’re running out of time to defend the waters that we claim to protect. … With decisions like Line 3, Commissioner Bishop, I’d just just ask the simple question of, “What is your plan in Fall 2020 with the 401 permit for Line 3 to stand up with these aspirations, particularly as we just held a Contested Case Hearing that refused to look at climate change or Treaty rights, which are both so important to this Water Plan?” 

Joe Meinholz (21:54)

Chair Bishop: “Thank you.” [Note:  To this point in the meeting, each speaker received a simple “thank you” from Chair Bishop after they spoke.  No dialogue and certainly no response to the questions asked.]

Nine (9) additional speakers were to follow (mind you, some of us had still not been recognized for our wish to speak at that time).  However, following the next speaker, Keegan Robinson, Commissioner Bishop noted: 

We should stick to the Water Plan and not the individual actions and projects. But I appreciate the comments from everybody here, certainly understand and hear your concerns about protection of water and certainly that is the intention with the Water Plan is to outline ways to protect our waters and how we go forwards.  So I appreciate all of you raising this but I do think that specific right now to a specific project and outlining that in the Water Report as well as the comments that we’re receiving on Line 3 seem to be a bit beyond the Water Plan itself as it is pertaining to a specific project.”

MEQB Chair Laura Bishop (25:53)

She then asked Katie how to move forward noting, “With any of the public comments, I would like to keep it on the Water Plan itself.” Katie Pratt (MEQB Executive Director) noted “several other agenda items” and that “we have a clear message” (as her phone rings in the background – someone calling to get their voice heard?) and she finishes saying, “I think we could consider moving on to our next agenda items and leaving time at the end for additional public comment.” [Remember this promise…] (27:25) Chair Bishop agreed, noting the Board would do that “unless there is a comment beyond Line 3 that we’ve missed. I appreciate this is an opportunity to talk about water protection and certainly that is the intention of any permits that are reviewed by the agency, it is with the intention to protect water as well. I’d suggest that we move on to the next agenda item.”

[At this point we still have multiple people remaining to speak. I was unable to get access to speak because the Chat in the Webex was disabled. My Raised Hand in the WebEx went ignored, as did the Raised Hands of others online.]

Nookomis joins from the phone (27:57) asking to say a few words.  Chair Bishop eventually (28:18) recognizes Nookomis for comment asking for a restatement of name for the record.  


Before I go on,  let’s be clear: Comments from the public recognized valid concerns ~ concerns that went unanswered, over and over, as Chair Bishop was asked about where the mitigation for the causes of climate change were captured, specifically with regard to fossil fuel infrastructure, in the 2020 Water Plan. 

Minnesotans care deeply about their water as evidenced by the recent Statewide Resident Survey Report from the University of Minnesota. While that report focused on agricultural concerns, the strong opposition to major infrastructure projects like mining and pipelines has been expressed at the MEQB for many, many months now. Even later in this meeting, similar concerns were raised on the Silica Sand Mine in Fillmore County.

Many Minnesotans also value wild rice. And many of those Indigenous to this land rely on it, some for their very survival. Yet by mid-2018 the MPCA had “withdrawn its proposal to change the water quality standard designed to protect wild rice from adverse impacts due to sulfate pollution. The Timberjay reported 18 months ago that the Minnesota Legislature was taking back steps on protecting wild rice.

As Willis Mattison noted during the meeting, public comment is not engagementEngagement entails dialogue.  As was reported in previous work, public engagement is CRITICAL to reaching to effective solutions that protect environmental and human health. 

Summary of Input from May 1, 2019 Environmental Quality Board Meeting

Our asks continue to go unheeded. Year after year. As water quality continues to deteriorate. In fact, as the recent PUC Public Engagement Report from the Office of Legislative Auditor clarified, the agencies are not following the law in their work.


As Nookomis began (28:25), she introduced herself in Ojibwemowin first and then translated to English.  Nookomis Debra Topping – an enrolled and recognized Fond du Lac Band Member ~ Fog Woman from Eagle Clan – called to hold the Board responsible for and accountable to their Treaty obligations.  She first asked about the Winter’s Doctrine and if there is any Indigenous membership on the Board.  

In Winters, the Supreme Court examined tribal rights to water associated with the Fort Belknap Reservation located in what would later become Montana. The Fort Belknap Reservation was created by an agreement in 1888 between tribal parties and the U.S. government. At the time, the government had a policy seeking to transform Native Americans from “a nomadic and uncivilized people … to become a pastoral and civilized people” by providing them lands to develop for such purposes. 

By 1905, the area experienced water shortages that ultimately resulted in the Winters lawsuit being filed to enforce tribal rights to water against non-Indian water users who had been diverting water from the region. In announcing its decision, the Court explained that the lands provided under the agreement for the purpose of developing an agrarian society “were arid and, without irrigation, were practically valueless.” The Court also noted that ambiguities in the agreement, such as the status of the water rights related to the land, are to be “resolved from the standpoint of the Indians,” as a rule of interpretation. The Court held that:

The power of the Government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be. That the Government did reserve them we have decided, and for a use which would be necessarily continued through the years.

The Court has continued to recognize the principle derived from Winters in both Indian and nonIndian contexts. In 1976, the Court noted that it “has long held that when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.” 

The Winters Doctrine of Reserved Water Rights

(29:58) Ben Yawakie, 3rd Congressional District Citizen Board Member, noted he is an enrolled citizen of the Pueblo Zuni and also a descendant of Turtle Mountain Band of Chippewa and he later clarified that he was not familiar with the Winter’s Doctrine. 

Nookomis continued, inquiring if there had been any Tribal consultation, noting both MN Statutes 103B.151 Coordinating Water Resource Planning and 103A.43 as making no specific mention of Tribal Consultation.  She asked if that meant it will not happen, even if it’s in the Plan. She said, “When you’re asking for the resolution to be approved, it does not say anywhere that you have to have Tribal consultation.”  The third statute she noted – 103A.204 Groundwater Policy – gave her hope for Tribal consultation as it included a list of those specifically responsible for Groundwater Policy.  

Maybe this is it! Maybe this is where we come in… number 4 is the Board of Water and Soil Resources, in there it says ‘local government officials’ so… maybe there’s where I come in at? … Nowhere does it say … that you have to do Tribal consultation.  I understand that you have done it… it’s in the 2020 Water Plan.  I do not see… anything in there about the Winter’s Doctrine.” 

Nookomis (31:30)

Nookomis ended asking if Mr. Yawakie knew about the Winter’s Doctrine. (33:35) Citizen Board Member Ben Yawakie, answered: “Nookomis… I personally do not.”

Commissioner Bishop mentioned Erik Cedarleaf Dahl, an Indigenous MEQB staff member, as well, though he did not respond.  Nookomis then asked if anyone on the Board knew of the Winter’s Doctrine, as knowing it would help them understand where they stand with her water on her reservation.  She spoke also of the smell and taste of gas and oil in the rice from Sandy Lake. (34:50) At this point, Commissioner Bishop talked over Nookomis for a full twenty seconds, expressing thanks as Nookomis continued speaking in the background. Then Nookomis finished with thanks.  [I was astonished at how humble Nookomis remained, after being so summarily and disrespectfully dismissed.]

There ensued a back and forth between Ms. Bishop and Ms. Pratt regarding the concerns Nookomis brought forth. Ms. Pratt mentioned both that the Water Plan is a “starting point, not ending point” and that Executive Order 19-24 directs state agencies to recognize and properly interact with the Sovereign Nations in MN. [However, this document makes no mention of the MEQB.] She also noted that the Water Plan actions are recommendations which will be implemented and that will include appropriate tribal engagement.  [Recommendations implies no requirements for action? This is not making me feel confident at all…]

(37:00) Chair Bishop then noted some necessary minor adoptions on Goals 5 & 3 to wrap up the work on adopting the plan. … Fisheries mgmt clarification and inclusion of insurance in the role of risk mitigation for climate change, with staff discretion to make these corrections. Then (37:50) she asked for a motion to adopt with these changes, which was moved by Thom Peterson and seconded by Al Forsberg.  

This is the point (38:38) at which Willis Mattison objected to the proceedings, asking to file a formal objection, pointing out the Staff and Board had obviously not allocated sufficient time for public participation during the last MEQB meeting or this meeting regarding the Plan and its deficiencies. He said he “understands expediency… nevertheless, the public is important.” He noted this appears to be a railroad job, disrespectful to the engagement policy when dialogue is not allowed.  He filed a major objection.  (40:08) Ms. Bishop allowed him to speak once he assured her his comments were not for Line 3 but the Plan.

NOTE: The fact that a formal public objection – to the Water Plan vote being taken – was simply dismissed by MEQB Chair Bishop – with NO Board discussion – was perhaps our second best indicator during the meeting that the public voice was not truly wanted.

The best indicator was when Chair Bishop entertained a motion to adjourn (2:35:47) at the end of the meeting, giving NO ALLOWANCE for those in the public who, earlier in the meeting, were promised a chance to speak at the end. [I was one of many who remained online awaiting a chance to be heard.]

The MEQB is Badly Broken

Mr. Mattison, a retired ecologist from the MPCA, made an excellent point that the 2020 Water Plan, while it “had much to compliment in its ecological wisdom”, was clearly and simply another example, similar to previously passed aspirational plans, that lack metrics for true accountability, and which have gotten us to where we are today.  Today, where we face a continued loss of quality waters and wetlands and where an insect apocalypse portends humanity’s own fragile state on the planet. These are things we citizens have discussed many times with the MEQB in recent years. Mr. Mattison notes that, without incorporation of these concerns, the Water Plan is “flawed and useless”.  A strategic plan is worthless unless there are metrics for accountability to the achievements.  He asked if the MEQB had willingness to expand plans where citizens can hold agencies accountable.

(45:40) Chair Bishop responded but allowed no dialogue, saying to Mr. Mattison, “Your three minutes is up.” 

I was stunned by this dismissal of a retiree from Commissioner Bishop’s own department, the MPCA, a department that itself is under great scrutiny, including consideration for investigation this very year by the Office for Legislative Auditor.  This was the detail on that suggested investigation:


While the Chair did allow for two additional comments (41:20) on the Water Plan after this additional urging that citizens be heard, I still awaited even recognition of my desire to speak. [I began to re-write my comments… which eventually led to this blog.]

(46:05) Lori Cox explained that the Water Plan’s words “ensure and manage mean something is going to be done. In agriculture we have a tough time saying that those things are going to be managed or ensured.”  “We continually see the words “voluntary” in agriculture. And that has been used repeatedly… the stakeholders have been loud about that, however we still… with MPCA numbers and very great coordination and statistics by state agencies, have shown that we’re not really moving the line there.”  She asked, noting these are almost promises using the words “manage and ensure about water quality”, that the Board take a look at the wording in Agriculture, and expressed concern that, if approved today, the plan would not bring change.

I’m not positive that there would be much more change, with all of the great recommendations, suggestions, programs that are already there and have been for years, that we’re really gonna move the needle.”

Lori Cox (48:16)

(49:06) Gearhardt Robinson, recent U of MN grad with a BS in sustainable systems management with an emphasis on energy systems, expressed that there was very comprehensive information in the Plan. However, for the Plan to be meaningful, it must not only mitigate the effects of climate change, but target the root causes of itsomething well within our capabilities and authorities to do.  (51:28) He congratulated the work of Commissioner Kelley of the DOC in re-filing the Appeal for Line 3 and urged ALL Commissioners to do what they could to file suits, deny permits, and do all the things in their power to protect Minnesotans and our water quality.

“To me it seems this plan isn’t really much of a plan, it’s kind of just abstract goals that really don’t have tangible ways to achieve them.”

Gearhardt Robinson (50:41)

(51:40) Gearhardt also noted that the use of the word “attack” [by Margaret Anderson Kelliher] in regard to the commenters asking for MPCA Commissioner Bishop to uphold her accountability to the public, was an interesting choice of words – one that implied some sort of violence.  He noted that what the citizens speaking up today are doing is not “violent”, but simply “help you make the right decision that will prevent violence against Indigenous Peoples, against land, and against all future generations.”  

52:05/52:12) Chair Bishop then cut him off saying, “Thank you. Mr. Robinson, I appreciate that and … you talk about climate resilience and we do have another inter-agency group, the Climate Subcabinet that is working on larger plans that address climate.”  [To my knowledge, that Climate Subcabinet has yet to be populated with membership or take any actions. I’ve never been contacted on my own submission… though it looks like there are 231 applications now, so perhaps I’m on the list yet to be contacted?]

Each agenda item in the meeting – not only the 2020 Water Plan, but also the Minnesota Sands, LLC project and the 2020 State Agency Pollinator Report –  showed that the MEQB and its agencies are NOT fulfilling their missions. This brought me deja vu to the May 1st, 2019   MEQB where Chuck Dayton, co-founder of this work, remonstrated that the original intentions for the MEQB were not being upheld these many decades later.  He indicated that the MEQB needed to re-evaluate their work to figure out why they were failing. He noted a lack of effective Environmental Review, with very few EIS, and an apparent inability to connect scientific dots to make decisions to prevent water quality deterioration.

As we watch water quality deteriorate and agencies make decisions based on checksheets that do not represent the complexity of the decisions being made, we see our young people standing up more and more – screaming for those in power to heed their cries to save the planet.  They are watching as groups like the MEQB make decisions that wipe away their futures. 

So, rather than push the vote to the end of the meeting, when ALL Water Plan commenters could be heard, Chair Bishop pushed through the vote before hearing the full public voice, making no response to the questions asked, and then closing the meeting asking for a motion to adjourn before she returned to those still awaiting their chance to speak on the Water Plan. [Note: (2:36:10) Gerald Van Amberg, Board of Water and Soil Resources Chair, moved to adjourn and Kristen Eide-Tollefson seconded.]

The only Board member to speak to Nookomis’ concerns was Kristen Eide-Tollefson, 2nd Congressional District Citizen Board Member.  She asked (53:11) if an addition could be made for Tribal consultation to the necessary discrete section. Erik Cedarleaf Dahl noted the section on Page 23 of the Plan which explained how the Tribal Consultation would occur. The fact that this Board is working on Minnesota issues but IGNORING their obligations to Federal Law, as explained by Nookomis in her questions on the Winter’s Doctrine, seemed a good reason to stop the vote… though it did not.

And how disturbing was that vote?  Unanimous… save ONE LONE vote of NAY from Ben Yawakie, an Indigenous Member of the Board.  The only response from the Board was to ask him to re-state his vote. [As if in disbelief that he’d voted “nay”?] A short silence followed as no one asked for more clarity from Ben on his vote and then… business moved on to the next agenda item.  There has not been a more CLEAR example in all my MEQB experience of the Native voice being summarily ignored as I bore witness to in the 9/9/20 meeting. 

The MEQB might want to ask themselves what the ramifications are for ignoring a US Supreme Court decision.  I’ve often thought, this Line 3 fight ~ and perhaps Polymet too, could end up being quite costly for the state of Minnesota, as its agencies collude with foreign corporations to push unnecessary pipeline and mining projects throughout Northern Minnesota Indian Country, all in violation of Federal Law.  

Perhaps Commissioner Kelley could have saved Minnesota taxpayers a lot of money in winning the case in State Court that there is No Need for Line 3… before the project goes on to Federal Court? Senate Republicans may end up regretting “executing” him – to use the Republican House Leader Daudt’s word – by not confirming him to his Commission at the Department of Commerce.  I am hopeful the Department is strong enough to continue their good work, though they’ve experienced an unconscionable dismissal of their wonderfully effective and caring leader, something harder and harder to find these days. 

As I indicated in my last note to MEQB Project Coordinator Giuseppe Tumminello, on their Environmental Review Data Mgmt Program, it seems that agencies and governments move too slow to keep pace with the changing planet. Gardhardt’s testimony at the meeting – that more of California was on fire than EVER in our recorded history – was alarming.  And we’re only now at the start of the fire season.  We have almost contiguous fire along the West Coast of our country from Canada to Mexico, but the MEQB, MPCA & MDNR seemed geared to go full steam ahead on their failing programs and plans that will dramatically increase climate effects in our state and for our planet as a whole. 

If we are to have a hope to save our natural environment for continued human support, the MQEB and ALL Minnesota agencies, politicians, and citizens are gonna have to get a lot more serious about solutions. 

And, as I have assured Giuseppe in recent emails, it may well be that, in the end, we resolve this with pitchforks. It seems to be the only way in America these days.


Update 9-16-2020:

Interviewing Nookomis subsequent to the meetings about her testimony allowed me to better understand her points:

  • There were 15 speakers at MEQB and all expressed concerns about theWater Plan.  
  • At one time there were 96 attendees in the meeting.
  • The Board voted with only one vote heeding the speakers.  
  • Changes are being seen in the manoomin (wild rice), which is a product of its environment – like us all.  Rice from Sandy Lake smells of gas and oil. Rice from Fond du Lac doesn’t smell or taste oily.
  • Understanding the Winter’s Doctrine allows the MEQB to comprehend their MORAL AND LEGAL obligations to Fond du Lac reservation, its Members, and the waters that serve them. These are Federal obligations to assure water rights for the Indigenous, as upheld by the Supreme Court of the United States.
  • If Manoomin (wild rice) is not protected, it will not thrive.  Once Manoomin is gone, so is Anishinaabeg.  THAT is the genocide ~ a systematic and purposeful elimination of a Culture and and a People.

What she said while Laura spoke over her was this: 

What I wanted to say is that I’m done being invisible.  I don’t care if you try to over talk me, I’m done being invisible!  You can come here any time.  You will hear me and you will see me for as long as I live.  And you need to be able to say what I’m doing, seeing. Yes. I appreciate you listening. Thank you. Thank you very much.”

When asked of the discussion on personal “attack” during the meeting, Nookomis shared that these words resonated with her.  These agencies and boards are responsible to protect the water.  NOT protecting her WATER is a PERSONAL ATTACK!  It is also a violation of Treaty Law, the highest law of the land.   Nookomis said, “My legal rights are not dependent on your personal feelings. You are personally attacking me by poisoning my water.”

She wondered aloud how the schooling of these Commissioners had failed them as they seemed to not be able to comprehend simple concepts like water, soil, and food being connected to human health… let alone the larger connections to the climate of the planet as a whole.  

Nookomis further expressed that “Commissioner Bishop is in over her head and does not understand all she needs to know, in order to do her job to PROTECT MINNESOTA’S WATER.  THAT is her only job.  Water quality indicates she is derelict in her duties.  This is not just on the reservation but affects every single Minnesotan. 5.6 Million people. The 15 people on the call represented that concern.  300 written comments seemed acceptable to the MPCA.  “That’s how many people I have in my immediate family!”, she said.

She also noted that there was no explanation of the 1837, 1854, & 1855 ceded territories in the Plan.  She offered to walk the line (proposed route) with anyone, any time, any day. She said you might want to pack a big lunch!

She noted as well that there was no mention of Tribal Fisheries in the discussion of modifications needed.  The list of things left unsaid was long, she lamented.


We have a long way to go to solutions, indeed. But Let’s Get to BETTER!*

* “Met” Chrysta Casteneda today at a talk that could help that MEQB comprehend what major issues they are not seeing… as the landscape on oil and gas becomes very fluid.