Federal Agencies Need to Deliver Themselves from the Legal and Ethical Morass Trump and his Cronies Left Them In

The 15th supplemental release of Boundary Waters documents in my FOIA case against the Department of Interior arrived yesterday. I’ve added the documents to documentcloud. Were I to characterize these records as disappointing, I might only be admitting that I still expect too much from them. Still, this release looks especially untidy, and there may be something going on behind the scenes — some change in staffing, for example — that I am not aware of.

First, the attorney assigned to my case in US District Court contacted me a couple of weeks ago to let me know that this production would be a few days late. When it came, the response letter, which accompanies every release and describes how many pages were reviewed, how many withheld, what exemptions were used, and so on, was missing. (Someone just forgot to attach it to the email, which begins “Attached is the Solicitor’s 15th Production response letter….”). The documents come from Brianna Collier, a career attorney in the Office of the Solicitor — who has been the main custodian of records in this case. We only catch glimpses of what Trump’s political appointees were doing when Collier is in the loop.

The documents themselves are heavily redacted, with deliberative process (b)(5) claimed throughout. Excerpts from Hein’s Legal Research Guides are the only records not redacted. They would be available publicly anyway. What can only be an earlier draft of the 19 page M-Opinion by then-Solicitor Daniel Jorjani dated December 5, 2017 is completely redacted. We know from the timeline that the memo was nearly finished by then, but instead of taking time to redact just those phrases and paragraphs which were still under deliberation, the FOIA officer applied a very broad brush on all 19 pages.

The FOIA officer took a slightly less aggressive approach to an August 7, 2018 memo written by Ryan Sklar on the Forest Service’s application to segregate 234,328 acres of federal land within Superior National Forest. This is the land withdrawn from mineral leasing and development while the US Forest Service completed “the necessary environmental analyses under the National Environmental Policy Act (or NEPA).” The law is clear. Sklar explains in a footnote:

Just one month later, of course, then-Secretary of Agriculture Sonny Perdue would cancel the two-year assessment, claiming that “the analysis did not reveal new scientific information.” So far, we have had to take Sonny Perdue’s word for it; the findings of the cancelled withdrawal study still have not been released. The cancellation meant that any “final decision” on the application for mineral withdrawal would be made without a complete case file — without the complete NEPA document. And without a “final” NEPA document, review would likely be guided by political considerations, not scientific evidence.

Except for an intriguing closing sentence, the discussion section here is fully redacted:

There’s not much to go on here, except Sklar’s final note: discussions of “next steps” around the Rainy River Watershed withdrawal were “ongoing” just one month before Sonny Perdue abruptly cancelled the application. There were, at that point, five months to go in the review required by NEPA, and pressure on Sonny Perdue was at its peak, with Trump publicly directing Perdue to look at the withdrawal “very strongly” and reassuring Minnesota mining proponents that they would “do very well.” Tom Emmer, Pete Stauber, Rick Nolan, and Paul Gosar kept the pressure on Perdue behind the scenes.

It’s unlikely Sklar’s legal memo refers explicitly to that pressure campaign, but it’s also hard to believe that he or anyone working on this issue at Interior was unaware of it.

The agencies now need to deliver themselves from the legal and ethical morass Trump and his cronies left them in. Secretary of the Interior Haaland should ask BLM to request a complete case file from the US Forest Service, with the necessary NEPA analysis, so that BLM can evaluate and review the withdrawal and so that she can make a lawful decision. USDA Secretary Tom Vilsack should release the preliminary findings of the cancelled two-year scientific study, unredacted. He should also ask the USDA Inspector General to review Perdue’s decision to cancel the withdrawal application and NEPA analysis. And though it’s unlikely they will do everything they should to set things right — that’s a tall order, and they’ve inherited a mess —  we can expect some steps in this direction before the end of next month, when the stay in Wilderness Society v. Bernhardt expires.

Read more about the Boundary Waters reversal here.

The Second Most Important Chart in the New IEA Report

This is probably the most important chart in the new IEA report, Net Zero by 2050:

It answers the question I asked when I first read about the report in today’s New York Times: what happens without the “unprecedented” global cooperation the report calls for?

In that likely scenario, the IEA does not see the world arriving at Net Zero emissions until around 2090 — which means we will have missed important targets (including limiting average global temperature rise to 1.5° Celsius warming). It also means a much less livable human future.

The second most important chart, to my mind, is this one, predicting  growth in demand for critical minerals such as copper, nickel, cobalt, lithium, and rare earth elements.

The report breaks it down further:

In a short Twitter thread I wrote this morning, I offered this guess:

 

A BLM Map of Critical Minerals Near the Boundary Waters

The latest release of Boundary Waters documents arrived today, a 14th supplemental production in response to my FOIA lawsuit v. the Department of the Interior. I’ve put them online here.

Two things caught my attention right away: first, an inventory of documents the Solicitor’s office at the Department of the Interior put together, apparently in connection with the Voyageur litigation. A short Twitter thread calls out some items of interest.

Also among the records I received today: a Bureau of Land Management map showing prospecting permits and preference rights leases in Superior National Forest.

There are already a significant number of active leases and many more in the application stage that could eventually come online.

The purple plume of inferred and hypothetical reserves of critical minerals is especially noteworthy here.

We know from other documents I obtained that political appointees in the Solicitor’s office intended to position Antofagasta’s mine as a source of critical minerals; and after the Trump administration published a new list of critical minerals in 2017, Antofagasta itself even flirted briefly (in its 2017 Annual Report) with the notion that Twin Metals had significant cobalt reserves.

The Biden administration is currently reviewing the actions the Trump administration took on Twin Metals and — maybe just as importantly — they are undertaking a review of the critical and strategic minerals supply chain. If it were to be fully developed, that purple plume of hypotheticals and inferences could become a real-world industrial corridor.

Update, 12 May 2021: According to a May 10 Settlement Agreement in Center for Biological Diversity et al. v. Mitchell Leverette et al. (a case in the US District Court of the District of Columbia), the Bureau of Land Management will review its May 1, 2020 decision authorizing the extension of 13 of the prospecting permits indicated on this map. The renewals were made without an Environmental Assessment under NEPA or an effects determination under the Endangered Species Act. These thirteen prospecting permits are for all intents and purposes suspended until BLM completes its review; Antofagasta agrees not to engage in any ground disturbing activities. Antofagasta’s two mineral leases are also under review at Interior and USDA, and we can expect some news on that front in the June 22 filing in Wilderness Society v. Bernhardt.

A Return to Science and a Push for Responsible Mining — Whatever That Means

New Boundary Waters documents arrived yesterday. I posted a short thread on Twitter as I reviewed them.

These records traverse familiar ground. Most date from January, 2018, when attorneys at Interior were preparing letters notifying the Forest Service and Twin Metals that the Solicitor’s Office had reversed the Obama administration.

For Twin Metals, this would mean that the Department of Interior had rescinded its rejection of their application for lease renewal. Not a green light — that would come more than a year later, in 2019 — but an encouraging sign of new and friendly disposition. For the Forest Service, the reversal would send an early signal that the two-year mineral withdrawal study would either have to favor renewal of Antofagasta’s leases (unlikely), or it would have to be cancelled if it were going to stand in the way of renewal. The issue raised questions about compliance with NEPA, as one heavily redacted exchange suggests:

It would be helpful to know more about how these attorneys saw the problem with NEPA at this time, especially when evaluating the action then-USDA Secretary Sonny Perdue in September of that same year, when under political pressure he abruptly cancelled the planned study.

The document trail invariably takes us back to that critical decision. It deserves careful and comprehensive review. There was some movement in this direction yesterday, when Senator Tina Smith wrote to Perdue’s successor at USDA, Tom Vilsack, and Secretary of the Interior Deb Haaland to ask that the BLM and Forest Service to start a new mineral withdrawal and segregation process and resume the study Sonny Perdue interrupted.

Smith’s letter calls for a return to science but recommends a more limited review than the situation warrants. She wants the agencies to determine whether copper and nickel can be “safely” mined in this area, and she also wants to present herself as a champion of Minnesota mining. It’s a move she seems to have learned from Amy Klobuchar.

Be that as it may, Smith offers Vilsack and Haaland one way forward over the next few months, during the court-ordered 90-day stay in Wilderness Society v. Bernhardt.

We must protect our precious wilderness. At the same time, we must pursue opportunities for both recycling and responsible mining of important mineral resources in the United States. If you believe—as I do— that the United States should lead the way in creating a clean energy future, then we must support public policy which allows for responsibly mining the minerals that this future requires. It is irresponsible and unethical to outsource exploitive [sic] labor practices and environmental degradation to other places while we reap the benefits. However, copper-nickel mining is not right for all places. There are some places too sensitive to mine. This is why we the [sic] mineral segregation and withdrawal study is so essential.

The letter simultaneously recommends precautions for the Rainy River Watershed and “responsible mining” to build “a clean energy future.” Those two things aren’t necessarily incompatible, but it’s unclear how this statement translates to coherent rule-or decision-making. It’s also the same line on mining that Secretary of Energy Jennifer Granholm has taken in recent public statements. How will the new administration determine what responsible mining for the clean energy future looks like? That is going to take some difficult conversations, but it’s not an issue Granholm, Vilsack, and Haaland can or should put off for very long.

Debate without demand? A Note on Project Debater

Harish Natarajan takes on Project Debater at an IBM event.

Debate without demand is shorthand for a set of qualms, concerns, and questions I have about the autonomous debating system — an AI called Project Debater that can engage in debate challenges with human beings — developed by researchers at IBM and discussed most recently in a March 17 article in Nature. A non-paywalled write up by Chris Reed and other press coverage of Project Debater does not settle these concerns.

I am unsure about nearly everything I want to say here (which is, by the way, something Project Debater cannot be), but the one thing I am prepared to say is that Project Debater looks like another AI parlor trick or corporate dog and pony show. To their credit, the IBM researchers recognize the problem. Here’s how they sum it up in their abstract:

We also highlight the fundamental differences between debating with humans as opposed to challenging humans in game competitions, the latter being the focus of classical ‘grand challenges’ pursued by the AI research community over the past few decades. We suggest that such challenges lie in the ‘comfort zone’ of AI, whereas debating with humans lies in a different territory, in which humans still prevail, and for which novel paradigms are required to make substantial progress.

While one writer claims Project Debater “is capable of arguing against humans in a meaningful way,” that seems like a real stretch, and it’s good to see the researchers behind the project do not seem ready to go that far.

I’d hold off for other reasons. Project Debater can argue for the proposition assigned to it in a structured debate game, but AI does not care about the argument it’s advancing; it has no reason to argue. And even more importantly it is not jointly committed with us to the activity of arguing. How could it be?

AI still has nothing to ask of us, nothing to demand, nothing we can recognize as a legitimate complaint. Those moral coordinations are reserved for persons. So the outcome of the debate does not matter to the AI debater; there are no life stakes for it. For this reason, the debate game looks morally empty. This is how Reed describes it:

Backed by its argumentation techniques and fuelled by its processed data sets, the system creates a 4-minute speech that opens a debate about a topic from its repertoire, to which a human opponent responds. It then reacts to its opponent’s points by producing a second 4-minute speech. The opponent replies with their own 4-minute rebuttal, and the debate concludes with both participants giving a 2-minute closing statement.

The same of course cannot be said for the real world consequences such debate games might have, or the efforts by these researchers and others to produce an argumentative AI. These experiments are fraught with moral complexity, peril, and maybe even some promise.

Time for A Review

A number of writers — pundits and news commentators, mostly, people with large public followings — have been announcing lately that they are launching substack newsletters. Substack is subsidizing many of these moves with fat advances, but to hear these writers tell it, that’s not what’s motivating them: they are moving from mainstream outlets or starting a newsletter in addition to their regular gig, they say, because they hope the new format will allow them to write more freely, get out from under their editors’ thumbs, break some rules, offend orthodoxies, and tackle a wider range of subjects than they might when writing for mainstream media outlets.

I am pretty skeptical of these claims and read them mainly as marketing ploys, but I can sympathize with the urge, the urgently felt need, to branch out, find a new groove, and explore new topics. That does not mean I plan to switch this blog over to substack. I don’t have many (non-paying) subscribers as is (but I am grateful for those I have); and lacking the big follower counts and public platforms these writers have before they stage their own deplatformings and moves to substack, I doubt I could attract enough paying customers for the move to make much sense, financial or otherwise.

I’m nevertheless longing to do new things with this blog, no matter how many people subscribe to or read it, and make it more than a chronicle of my FOIA adventures, which is essentially what it’s become over the past year or so. My focus on that topic has brought me a few new subscribers, but it’s also slowed me down — I’ve allowed the slow trickle of documents from my FOIA lawsuit to set the pace — and boxed me into a single story.

I am restless and claustrophobic, off the page and on, so I don’t like feeling boxed in, physically or intellectually. Besides, I’ve got other stories to tell and other projects that need my attention. Some of them have grown out of the work on industrial development around Lake Superior that began more than a decade ago with 1913 Massacre; some of them (like this post on tribal consultation) arise from new connections I see between my work on industrial development and my interest in models of power and consent (which I’ve talked about under the rubric of The Asking Project); and some of them, thank goodness, have nothing at all to do with those things.

Of course, that doesn’t mean I am done with the Boundary Waters and the Freedom of Information Act — not just yet. My FOIA case in DC District Court is still open; and this week saw some new developments.

First, to celebrate Sunshine Week, I put up a new version of the FOIA webinar I gave back in July. The version that Friends of the Boundary Waters posted on YouTube did not include the presentation slides, because I failed to notice a Zoom prompt asking me whether I wanted to record my desktop until the webinar was over. I synced the slides with the webinar audio and created this new version. It’s easier to follow.

Second, a motion to stay was filed on Thursday in Wilderness Society v. Bernhardt, the main lawsuit challenging the Department of Interior’s renewal of Antofagasta’s leases. It appears that newly confirmed Secretary of the Interior Deb Haaland is less than enthusiastic about the lawsuit she inherited from her predecessor, David Bernhardt. The motion asks for a stay of 90 days so that Haaland and Secretary of Agriculture Tom Vilsack, both of whom have publicly opposed sulfide mining near the Rainy River Watershed, can review the matter. The review looks to be pretty comprehensive, and will cover the government’s current position, the reinstatement of Antofagasta’s mineral leases, and the historical lease files.

A review of that scope is likely to bring a lot of suppressed evidence — the findings of the abruptly canceled mineral withdrawal study, the stipulation of a production requirement, and so on — to light. In a Twitter thread about the filing yesterday. I wagered the review would undo Jorjani’s work:

Or we’ll see the scientific study resumed. Whatever route the review takes, the new Secretaries should also ask their Inspectors General to look into the conduct of the Solicitor’s Office at Interior and the Secretary’s Office at USDA over the past four years. There is plenty of evidence of undue influence, regulatory capture, administrative sabotage, and all sorts of corruption and malfeasance, from contempt of Congress to perjury and violations of NEPA. We need accountability in order to set things right.

If any of the records I’ve published along the way can help reviewers get closer to the truth of what happened, or help bring about a reckoning, then maybe it will all have been worth it.

Secretary of Agriculture Tom Vilsack Should Promptly Review the Trump Administration’s Decisions around Mining in Superior National Forest

The 12th supplemental production of Boundary Waters documents in response to my FOIA lawsuit is now up on documentcloud. This Twitter thread calls out some highlights:

What’s most remarkable is just how consistent this release is with previous releases. The story remains the same: the Trump administration’s decisions around mining in Superior National Forest, on the edge of the Boundary Waters, were heavily influenced by a lobbying blitz, interference with regulatory review, and a coordinated, high-pressure campaign to cancel a planned scientific study.

This latest release offers some new details and color around the decision to reinstate Antofagasta’s mineral leases, as attorneys at Interior work on the official reinstatement letter and the news release that will become part of the public record. Most of the editorial decisions they take are heavily redacted; but the decision to opt for an “if-asked” statement over an official press release is exactly the strategy taken with the initial reversal or M-Opinion in December of 2017. Under the subject heading “Twin Metals Acquired vs. Public Domain Lands,” there is more discussion about the map drawn by mining engineer Timothy Howell, and how to reconcile its boundaries with Antofagasta’s Preference Right Lease Applications. And those PRLAs are also the subject of yet another meeting at Interior in March of 2018 with a gang of attorneys from WilmerHale and Twin Metals. Their objective is to press Interior on Antofagasta’s Preference Right Lease Applications and fix the scope and schedule for environmental review, prescribing the “regulatory scheme” officials at Interior should follow. As I noted in my Twitter thread, Chris Knopf and I called out a strikingly similar effort in regard to these PRLAs at another March 2018 meeting.

The story these records (and all the records I’ve received) tell inevitably arrives at then-Secretary of Agriculture Sonny Perdue’s decision to cancel the mineral withdrawal study in Superior National Forest. I’ve written about this critical decision before (here, here, and most recently, here). It was the product of a coordinated pressure campaign by WilmerHale lobbyists, top executives at Antofagasta, the White House, Republican legislators, and the Congressional Western Caucus.

From this release, we learn a little more about that decision.  In the Spring of 2018, for example, attorneys at Interior still assumed that Perdue would allow the mineral withdrawal study to proceed. In fact, in April of 2018, Secretary Ryan Zinke was prepared to reassure Representative Betty McCollum that the scientific study would help satisfy NEPA and protect Minnesota taxpayers from environmental and economic disaster. Perdue’s decision would break that promise in order to satisfy President Trump.

So these records from the Department of Interior appear to shed light on corruption at the USDA. It’s clear that newly confirmed USDA Secretary Vilsack should promptly review Perdue’s decision, publish an unredacted version of scientific findings to date, and open an ethics investigation into cancellation of the proposed mineral withdrawal. It’s time to repair the damage Perdue did, return the agency to science, and restore the integrity of USDA.

A Pressure Campaign: New FOIA Releases And A New Filing in Wilderness Society v. Bernhardt

Well past due, but yesterday the 11th supplemental production of Boundary Waters documents in response to my FOIA lawsuit arrived. You can find them here. All the Boundary Waters records I’ve received to date — now approaching about 10,000 pages — are here.

This release includes more records from Briana Collier, an attorney in the Division of Mineral Resources at the Department of Interior. The records show Collier and colleagues in summer of 2018 conferring over litigation around the decision to reinstate Twin Metals’ mineral leases near the Boundary Waters; other email threads show lawyers for Twin Metals at WilmerHale communicating with BLM attorneys about their upcoming motion to intervene and some discussion about whether Minnesota or DC would be the better venue. Pedestrian fare, maybe, but the impression is, once again, of WilmerHale and attorneys at BLM working in tandem to protect and advance the financial interests of Chilean mining giant, Antofagasta, Plc.

Another exchange relating to Twin Metals prospecting permits shows Dean Gettinger, a District Manager at the Northeastern States District of the BLM, trying to “get things moving.” The Forest Service is under pressure to make a determination on the Twin Metals prospecting permits; and this looks like yet another instance where the mining company is driving the calendar of agency review. (That was the subject of an OpEd I published this summer with Chris Knopf.)

The pressure is on: in May, 2018, the mining company even contests whether its Preference Right Lease Applications (PRLAs) fall within the boundaries of the proposed mineral withdrawal area.

These are the same PRLAs that were under discussion at a March 6, 2018 meeting where Twin Metals asked for a Categorical Exclusion — essentially no environmental review at all — but said it would settle for an Environmental Awareness review (which is exactly what it got). We don’t know whether Howell determined that they fell within the proposed mineral withdrawal zone, because his response to this email is almost entirely redacted. He apologizes for his delayed response, then continues: “Technically there” and the rest is redacted under deliberative process privilege. It is unclear why a cut and dry matter like this — the question whether the leases fall within the boundaries of the map Howell drew — merits this kind of protection.

These are not just isolated instances of the mining company raising questions about the status of its applications or expressing impatience because time is money. A loosely coordinated, well-funded, extensive lobbying and pressure campaign was launched the minute the new administration took office. Just this week, in fact, a new filing in Wilderness Society v. Bernhardt gave us new details about how extensive this campaign was, with Representatives Tom Emmer, Pete Stauber, Rick Nolan, and Paul Gosar running interference for the mining company. I put together a Twitter thread about it:

The prime target of this pressure campaign was none other than Secretary of Agriculture Sonny Perdue, who alone had the power to cancel the proposed mineral withdrawal. Emmer was trying to arrange a meeting between Perdue and the CEO of Antofagasta as early as July of 2017.

We don’t know when they first met, but Perdue and Ivan Arriagada would meet in May of 2018, just around the time those PRLAs and the borders of the mineral withdrawal map were under discussion. One month later, Trump prematurely on purpose blurted out in Duluth that the mineral withdrawal was on track to be cancelled. “‘It’s now up to [Agriculture] Secretary [Sonny] Perdue,'” Trump told local elected officials and mining advocates at a roundtable before his Duluth visit last week. ‘And I know he’s looking at it very strongly, and I think you’ll do very well.'” The quote is from a story by Dylan Brown in E&E News included in the collection of documents I just received.

Here is video of the moment. Andrea Zupancich, mayor of Babbitt, MN, tees it up:

Anyone who has been paying attention to the way Trump speaks understands that this was an instruction. “He doesn’t give you questions, he doesn’t give you orders, he speaks in a code,” his former attorney Michael Cohen told Congress. The code here is pretty easy to crack: look at it “very strongly” (not intently, not with a careful eye to the most responsible course, but from an attitude of strength) and make sure the people who want this withdrawal undone “do very well.” Shortly after this, Perdue was warned that Gosar and others would be “pissed” if the Forest Service didn’t follow through.

Under pressure, it appears, Sonny Perdue folded.

Read more about the Boundary Waters reversal here.

Two Sets of Boundary Waters Documents: The Fallout from the Reversal

Two sets of Boundary Waters documents arrived yesterday afternoon.

The first set of documents is the tenth supplemental production — the December production — in response to my FOIA litigation. It includes more records from Briana Collier, 411 pages dating back to 2018 and mainly to do with the fallout from the Boundary Waters reversal: attorneys at Interior prepare for litigation over the reversal and start to gather materials to respond FOIA requests (including mine). I’ve put these materials online here.

The Collier correspondence shows attorneys at Interior searching for and reviewing letters and lease files from 1966 forward to prepare for litigation in the Voyageur case, for instance. In one exchange, the litigation specialist at BLM is apparently trying to reconcile the current lease form with the historical leases. Her questions have been redacted:

This same collection of correspondence also offers a glimpse of attorneys at Interior processing multiple FOIA requests at around the same time that Solicitor Daniel Jorjani was putting the Awareness Review Policy formally in place. There appears to have been some confusion about how to run the records search and how to include custodians who had taken on new assignments, in different departments. At one point, Collier apologizes for the “mess”:

The second set of records in this release includes 126 pages of documents previously withheld until the White House and the Office of the Secretary could review them. These records are now online here. They consist mostly of regular briefings by White House Liaison Lori Mashburn — another political appointee who came to Interior via the Heritage Foundation and the Trump 2016 campaign. These briefings present roundups of news coverage, summaries of schedules and announcements, tweets by Zinke that Mashburn deems “notable,” and the occasional flattering detail — e.g, Zinke’s appearance on the History Channel program Navy Seals: Kill or Capture.

Pages 107-126 of this 126 page document present Daniel Jorjani’s email correspondence and a briefing prepared for “the Duluth trip” (Trump’s June 2018 trip to Duluth, which I wrote about here) by Mitch Leverette, Acting Eastern States Director. The part of Leverette’s memo dealing with “Federal permits, leases, and extension requests” has been fully redacted. The issue was still very much in the works:


One takeaway from these documents is that the Boundary Waters reversal — the Jorjani legal memo of December 2017 — ruled in Antofagasta’s favor but unsettled the regulatory picture for much of 2018. “Questions regarding how to interpret the original lease terms have also persisted,” notes Leverette in his memorandum; and Interior was dealing with other questions as well. An exchange in the December production shows Kevin Baker, Vice President for Legal Affairs at Twin Metals, trying to sort out some “confusion based on the recent approvals” from the Bureau of Land Management and US Forest Service.

Subsequent actions by Interior and USDA were intended to give Baker and executives at Twin Metals and Antofagasta the results they sought and the clarity they needed to proceed. Now, with the arrival of a new administration only weeks away, things may seem little less settled.

Read more about the Boundary Waters reversal here.

More Meaningful Consultations: A Comment on the Biden-Harris Plan for Tribal Nations

The incoming administration promises to reinstate the tribal consultation mandate. More can be done to meet the standard set by the RESPECT Act and make consultations more meaningful.

Federal agencies are required to consult with Native American tribes (and with Alaska Native Corporations) on infrastructure projects — highways, dams, or railways, for instance — and on permits for mines, pipelines, and other industrial development projects when they affect tribal lands and interests. Consultation policies and practices vary from agency to agency, but in all cases these consultations are supposed to be “meaningful.” What makes them so needs to be carefully spelled out.

“To promote robust and meaningful consultation,” the Biden-Harris Plan for Tribal Nations promises to reinstate the Consultation mandate put in place by the Obama administration and “ensure that tribal consultations adopt best practices consistent with principles reflected in the RESPECT Act.” The Act in question is H.R. 2689, which languished in the House after being introduced by Representative Raul M. Grijalva of Arizona in the 115th Congress. The Act sought to establish, among other things, this Sense of Congress:

effective, meaningful consultation requires a two-way exchange of information, a willingness to listen, an attempt to understand and genuinely consider each other’s opinions, beliefs, and desired outcomes, and a seeking of agreement on how to proceed concerning the issues at hand; and consultation can be considered effective and meaningful when each party demonstrates a genuine commitment to learn, acknowledge, and respect the positions, perspectives, and concerns of the other parties.

The Act sets the bar for everyone involved. It describes meaningful consultation as deliberation among equals, a good faith undertaking to seek (but not necessarily reach) agreement together. It places more emphasis on recognizing different perspectives and positions than on reconciling them. It highlights a genuine and joint commitment to listen and develop understanding of each party and of the issues. Meaningful consultation will go well beyond mere transaction — or information exchange — to encompass learning and collaboration. Rooted in mutual respect, consultation can be both a dignifying encounter and an adventure.

The standard the RESPECT Act sets for meaningful consultation is worth reaching for right now, even if it remains to be seen whether Representative Grijalva will reintroduce the bill and whether the 117th Congress will make it law. Here are a few areas where work might begin.

  • Information ethics should develop with information systems.

A 2019 Government Accountability Office study of 21 Federal agencies discovered an information gap: agencies simply do not have accurate contact information for the appropriate tribal representatives. To remedy the situation, the GAO recommends that the Federal Permitting Improvement Steering Council develop a plan for establishing a central federal information system. While centralization might serve the FPISC goal of administrative efficiency, it can also raise significant issues around security and trust. Sharing control of data and data governance with tribes might help alleviate such concerns.

Information systems are already evolving to accommodate new collaboration technologies (like channel-based messaging and videoconferencing) to support consultation. Best practices still need to be identified and shared; and, just as importantly, inequities need to be addressed. As noted in the Biden-Harris plan, rural areas and reservations are disproportionately underserved by high-speed internet. It will take significant investment in broadband and 5G before new applications can be brought into the mix.

Where information technology can help consultation in other ways — with topological, geological, and archaeological reviews — other ethical considerations arise. Centering the discussion on shared data and published scientific information can help temper conversation and prevent powerful outside groups from exercising undue influence, but the model also has its limits. When scientific understanding appears to be incommensurate with tribal knowledge of the land, waters, and regional history, respectful consultation will strive to give both due consideration.

  • Dialogue will determine the value of information.

The text of the RESPECT Act itself could be amended to reflect its own sense of what makes consultation meaningful. The Act aims to “ensure that meaningful Tribal input is an integral part of the Federal decision-making process.” In this caption and throughout the Bill, the effect of the word “input” is to cast tribes as information sources, not full-fledged participants. Gathering or recording tribal input is only the first step at building dialogue, where information acquires meaning.

The colorless, technocratic term “input” appears to have found its way into the legislative lexicon via the Unfunded Mandates Reform Act of 1995 (Section 204), which calls upon agencies to “permit elected officers of State, local, and tribal governments…to provide meaningful and timely input.” Five years later, Executive Order 13175, still the touchstone for tribal consultation policies, moves beyond granting tribes permission to mandating “an accountable process to ensure meaningful and timely input.” This order does not, however, contemplate ways federal agencies might be accountable to their tribal counterparts, as they would be in a cooperative undertaking.

No surprise, then, that sixty-two percent of tribes surveyed by the GAO “identified concerns that agencies often do not adequately consider the tribal input they collect during consultation when making decisions about proposed infrastructure projects.” This finding appears to indicate that agencies cannot consider all by themselves the input they collect. Due consideration will take building “meaningful dialogue” — as a 2009 Presidential Memorandum on Tribal Consultation puts it — through “regular and meaningful consultation and collaboration.” It is best undertaken jointly.

  • Consultation still falls short of consent.

The 2007 UN Declaration of the Rights of Indigenous Peoples establishes that states “shall consult and cooperate with the indigenous peoples” to this clearly-stated end: “in order to obtain” Free, Prior, and Informed Consent. A 2010 State Department Announcement of US support for the Declaration fails to take into account the subordinating conjunction “in order to” and the purpose it unambiguously indicates, allowing only that the US understands the Declaration “to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders.” Instead of securing informed consent, as required by UNDRIP, the consultation process becomes a way of reserving discretion.

From the tribes’ perspective, as summarized in a 2017 study, consultation is merely box-checking unless undertaken with the aim of obtaining free, prior, and informed consent or at least reaching compromise. The Biden-Harris plan takes a step in this direction, promising to “uphold leasing and right-of-way regulations that strengthen tribal sovereignty and ensure tribal consent on tribal lands.” The plan makes no mention of the UN Declaration, however, and it remains to be seen how far this deference will extend.

Consent places front and center issues of self-determination, of autonomy and, in the context of government-to-government relations, sovereignty. One test of respect for self-determination comes when tribal leaders withhold consent or say “no,” as the obligation to obtain consent clearly implies the right to withhold it. Efforts to overlook or sidestep that obligation altogether are bound to diminish confidence that consultations will be appropriately heeded and outcomes will be just.

This serious shortcoming — which cries out for remedy — need not be a fatal flaw. “No” might signal a standoff or it might offer an opportunity to articulate and explore alternative plans. Good faith, constructive disagreement can test unexamined assumptions, illuminate unseen risk, and bring new interlocutors to the table. Agreeing to disagree need not mark the end of negotiation; it can indicate that parties will acknowledge differences, respect the distance they establish, and rejoin the dialogue.

Though consultations do not satisfy the human rights obligation to secure free, prior, and informed consent and do not necessarily yield agreements, they can help agencies take tribal interests into account and help tribes gain better understanding of (and some say in) decisions that affect them.

On a practical level, starting consultations early and returning to them throughout the life of a project can prevent conflict and costly delay further down the road. Just as importantly, consultation can help agencies gain much-needed perspective on emerging risks and complex problems, from economic and energy policies to food security and environmental protection.  And taking steps to improve tribal consultations might also raise the bar for other public consultations, making government a little more responsive to all citizens.

Ultimately, however, consultation will be meaningful only to the extent that all parties so find it.

Update: On January 26, President Biden issued an Executive Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships, reinstating the consultation mandate. The Memorandum directs agency heads to consult with tribes before developing a detailed plan of actions the agency will take in this regard and to keep the OMB apprised of progress made against the plan.