Sizing Up A Successful FOIA Litigation

Bill Moyers drafted this paragraph for President Johnson’s FOIA signing statement in 1966. LBJ rejected it, but it’s a good reminder of what FOIA is really all about, or should be about.

My Boundary Waters Freedom of Information Act case, Galdieri v. Department of  the Interior, is about to wrap up, with a Stipulation of Dismissal to be filed shortly.*

In my first outing as a pro-se FOIA plaintiff, I obtained over 6,500 pages of previously unreleased records. Some of these records made their way into congressional hearings, news stories public commentopinion pieces, and a webinar. Maybe they contributed to the public understanding of decisions the previous administration made; maybe they even helped change some minds. I’ll probably never know. Instead, I’m trying to sort through what I learned in the process and how these lessons might apply to my work in the future.

While there’s no formal judgment I can tout, a Settlement Agreement covers my litigation costs (a $400 filing fee), and I’m happy to take that as tacit admission that I “substantially prevailed,” in terms of the Freedom of Information Act. The statute says “a complainant has substantially prevailed” — and is therefore entitled to litigation costs and attorney fees — “if the complainant has obtained relief… through a voluntary or unilateral change in position by the agency.” That’s essentially what happened here, when the Department of the Interior agreed to review over 25,000 pages of records it had held back.

I might have pressed for even more than the filing fee, but I am not sure how strong my case would have been. In Cuneo v. Rumsfeld, the DC Circuit Court of Appeals offered this reasoning:

In enacting [The Freedom of Information Act,] Congress sought to lower the barriers facing the average person requesting information. Furthermore, successful FOIA litigants enhance the public interest by bringing the government into compliance with the law. As agents of the national policy of public disclosure it is equitable that they be awarded for their service. Under current federal attorney fee statutes when the social service rendered by the prevailing party is substantial, the courts have been willing to dispense with formal and rigid attorney and client requirements. … A successful FOIA litigant is entitled to similar consideration.

The question how I might value the time spent on this project doesn’t really come down to dollars and cents anyway. There’s another register of value in the language the court uses in Cuneo regarding “the public interest” and in the language about “good government” Bill Moyers uses in his draft of LBJ’s FOIA signing statement. These texts help hitch my efforts to a serious purpose, and I reach for them with that in mind.

I hope that doesn’t sound self-aggrandizing. This three-year-long episode started with an idea for a film, an investigative documentary that would travel from New York to Minnesota, Washington DC, and Santiago, Chile. That was ambitious. Instead, I ended up on a paper chase and locked down in Brooklyn during a pandemic. That was frustrating and humbling.

Along with what I learned during that period about the putative subject of my investigation, I am reminded (once again!) that there’s always meaningful work to be done after things fall apart or plans go awry.  A small consolation for mice and men.

*Update, 19 May 2022: A stipulation of dismissal was filed this morning and the judge ordered the case dismissed.

What’s Behind Some of the Redactions in my Boundary Waters FOIA Case?

I guess this is what winning looks like.

The b(5) FOIA redactions I contested back in November have all been released in full. I’ve added these unredacted documents to the collection of records from my Boundary Waters FOIA case on documentcloud.

There are no earthshaking revelations here. The emails sent from David Bernhardt’s iPhone turn out to have been sent from his official email account; I suspected the agency might have redacted them to cover his use of a personal account. The redacted paragraphs in the leasing renewal documents from 1987-2005 concern Forest Service consent (or “no objection”) to the lease renewals, with some stipulations about an unresolved reclamation issue. These were public records of past decisions that were treated as if they held closely-guarded secrets.

Then there is the unredacted version of the Twin Metals Talking Points put together by Gary Lawkowski, Counselor to Solicitor Daniel Jorjani and fellow Koch network alumnus. These Talking Points were to accompany the Jorjani M-Opinion, the legal memo that determined Chilean mining giant Antofagasta plc had a non-discretionary right to renewal of its leases near the Boundary Waters. I talked a little about this redaction in a 2020 FOIA webinar. If there is a showpiece among these unredacted documents, this is it:

It’s worth asking why any of this — the letters, the email address, the Talking Points — was redacted in the first place. In previous posts I characterized these assertions of privilege as heavy handed. Interior misused, or abused, Exemption 5 redactions. Some look like a hamfisted effort to protect political appointees, like the full redaction of Lawkowksi’s Talking Points.

Why were these redacted? The Talking Points position the Twin Metals project as a source of critical minerals, criticize the Obama administration, and argue that the Jorjani reversal is “a victory for the rule of law by affirming that the government means what it says when it enters into contracts.” That last claim may be hyperbolical, but hyperbole hardly merits a coverup, and the Talking Points were written for public consumption. Trump himself would repeat the criticism of the Obama administration when he spoke in Duluth. Arguments about regulatory certainty are common enough and would have gotten a friendly reception in the business press. And as we saw just last week, when President Biden issued an executive order and the Senate held a hearing on critical minerals, there is plenty of bipartisan support for onshoring critical minerals production.

So why the sensitivity around Lawkowski’s arguments? Maybe this is just a case of a FOIA reviewer applying Exemption 5 indiscriminately. But why not roll out these talking points, and try to build public consensus around them? I can only guess that it was some mixture of incompetence, or an inability to coordinate a coherent critical minerals strategy (remember infrastructure week?), and arrogance: a sense that they didn’t owe the public explanations.

There is a world in which this could have been a political win, had the administration taken the time to build public support and rally Congressional allies around mining for the energy transition, or a new energy mix, and — this is the kicker — had it found a more legitimate route forward for the lease renewals. Instead, at every turn, they schemed behind closed doors, and they failed.

A Final Batch of Boundary Waters FOIA Records

Last week, the Biden administration determined that Antofagasta plc’s mineral leases near the Boundary Waters had been improperly renewed in 2019.

Principal Deputy Solicitor of the Interior Ann Marie Bledsoe Downs found that changes made to the Bureau of Land Management’s standard lease form were irregular and amounted to giving the Chilean firm “special treatment.” She also withdrew the “flawed” Jorjani M-Opinion, M-37049; its specious claim that Antofagasta had a “non-discretionary right” to renewal of its leases, she wrote, “spurred the improper renewal decisions.” The Jorjani opinion led the agencies into a procedural and legal morass.

“As a consequence of the Jorjani M-Opinion,” Bledsoe Downs writes, the Department of the Interior ignored or sidestepped the Forest Service’s statutory consent authority. Jorjani all but eliminated this authority and swept aside the fact that the Forest Service did not consent to a renewal of the leases back in December of 2016. That determination was invalid, he claimed, because the mining company had a non-discretionary right to renewal. Not just the Forest Service, but “the United States” itself had no say. The leases had to be renewed; the Forest Service could make some stipulations, nothing more.

A small batch of Boundary Waters documents that arrived last night — the 19th supplemental release of records compelled by my FOIA lawsuit against the Department of the Interior — does not shed much new light on how these decisions were taken. This is probably the last batch of records, with the exception, maybe, of those records whose redaction I am contesting.

These records are almost entirely redacted. Nothing but black. I added them to the collection on documentcloud anyway, here.

The new records include three (totally redacted) drafts of a BLM News Release announcing the reinstatement in 2018 of Antofagasta’s mineral leases.

They also include two fully redacted memos from Mitch Leverette, Acting Eastern States Director at the Bureau of Land Management, to Tony Tooke, Chief of the US Forest Service. Even the dates are redacted on these! But we know that they must have been written between September 2017 and March 2018, during Tooke’s brief term as Chief.

The dates, but not much more than the dates, are not redacted on two DOJ communications from Lisa Russell, Chief of the Natural Resources Section of the Environment and Natural Resources Division. Russell’s July 10, 2018 memo is addressed to Karen Hawbecker in the Office of the Solicitor at the Department of the Interior; this is followed by a 14 page draft litigation report on the Voyageur v. United States and Friends of the Boundary Waters v. BLM cases. Those cases had just been filed. Another report, from Russell at DOJ to Jeffrey Prieto, General Counsel at USDA, dated January 18, 2017, deals with Franconia Minerals v. United States, the lawsuit brought by the mining company in September, 2016, claiming a right to renewal of the mineral leases.

Though their contents have been completely obliterated, these records still tell us a little something. Both Leverette at BLM and Russell at DOJ are consulting with the Forest Service; the memos may simply bring the Forest Service into the loop of the the legal work being done at these agencies; they might well address the critical issue of its statutory authority; and in Leverette’s case, at least, the memo might reiterate the Jorjani argument that the USFS 2016 non-consent determination was invalid. The redactions make it impossible to say for certain.

When it comes to the three drafts of the BLM News Release announcing the reinstatement of Antofagasta’s leases, we have very little to work with. The news release comes from Leverette’s Eastern States division. The headline in all three cases reads: “Bureau of Land Management reinstates Minnesota mineral leases. Consideration of application for renewal also re-started.” All three drafts are marked “for immediate release.” While one of the drafts is dated May xx, 2018, two of the drafts are dated “February xx, 2018.”

The official date of the reinstatement was May 2, 2018, but we know from records I’ve previously obtained that the February draft of the news release caused a flurry of activity at the Department of Interior. For example:

The language requested by Leverette might well have been some legal justification of the reinstatement along the lines prescribed by Daniel Jorjani: Antofagasta’s leases could be reinstated because, due to a legal error, the Forest Service’s non-consent determination was invalid. Consider this paragraph from Leverette’s May 2, 2018 official Reinstatement Decision memo:

Because the BLM’s prior request for Forest Service consent was based on the legal error that the United States had discretion to decide whether to renew the leases, we informed the Forest Service that its December 2016 non-consent determination was not legally operative. The Forest Service has not objected to that conclusion.

This just leads me back to the question I asked on Twitter. Why didn’t the Forest Service object? Why didn’t it stand by its earlier conclusion? Why didn’t it make an effort to protect the integrity of the scientific study then underway? Or was there an objection that took from February to May to settle? Was that the subject of the two memos from Leverette to Tony Tooke? Did Tooke’s resignation in March 2018 help resolve the matter?

Of course, there are other explanations for the February-May delay. The federal bureaucracy is a slow-moving beast. Tooke was under siege in the last months of his career at the Forest Service and in no position to dictate terms. And, as Bledsoe Downs points out in a footnote to her legal memo, the decision to reinstate the leases was “concurred in by Joseph Balash, Dep’t of the Interior Assistant Sec’y for Land and Minerals Mgmt.” It may have taken from February to May of 2018 to obtain that concurrence.

What we do know for certain is that on May 2, 2018, on the very day the Bureau of Land Management reinstated these mineral leases, the CEO of Antofagasta plc met with Secretary of Agriculture Sonny Perdue. The pressure only mounted from that point on. Though Jorjani had asserted back in December of 2017 that the US Forest Service had no power to say whether the Chilean mining company’s leases should be renewed, the mining company, the agencies, the White House, and several members of Congress dedicated significant resources over the next year to making sure of that and getting Sonny Perdue to cave to their demands.

You can find all the Boundary Waters records I’ve received to date here.

Read more about the Boundary Waters reversal here.

Our Chronic Legitimacy Crisis Might Turn Acute, Again

In the public comment I submitted last week on the Rainy River Watershed Withdrawal, I made the point that completing the withdrawal would not only help protect the Boundary Waters. It would also serve the interest of good government. A new article by Steven Levitsky and Lucan Way in Foreign Affairs helps set this point in the context of an unfolding American crisis.

“America,” argue Levitsky and Way, “may no longer be safe for democracy, but it remains inhospitable to autocracy.” Even so, the ongoing push toward autocracy is likely to bring a prolonged period of democratic instability and political violence. Even when they do not succeed in their autocratic ambitions, autocrats and their cronies in the public and private sector will destabilize government, undo rulemaking, and undermine legitimacy, as we saw clearly during the Trump era:

Trump proved to be as autocratic as advertised. Following the playbook of Hugo Chávez in Venezuela, Recep Tayyip Erdogan in Turkey, and Viktor Orban in Hungary, he worked to corrupt key state agencies and subvert them for personal, partisan, and even undemocratic ends. Public officials responsible for law enforcement, intelligence, foreign policy, national defense, homeland security, election administration, and even public health were pressured to deploy the machinery of government against the president’s rivals. (emphasis mine)

America’s chronic legitimacy crisis could once again turn acute.

If Trump or a like-minded Republican wins the presidency in 2024 (with or without fraud), the new administration will almost certainly politicize the federal bureaucracy and deploy the machinery of government against its rivals. Having largely purged the party leadership of politicians committed to democratic norms, the next Republican administration could easily cross the line into what we have called competitive authoritarianism—a system in which competitive elections exist but incumbent abuse of state power tilts the playing field against the opposition.

Corruption and political interference at Interior and USDA around a single mining project may not rank among the most serious abuses of state power we’ve seen lately or are likely to see. But documenting and understanding what happened in the case of the Rainy River Withdrawal can help us appreciate where things might be heading.

No, the Shift to Renewables Will Not Be the End of Toil

Energy derived from sources like the sun, air, and water, on the other hand, is imbued with immense liberatory potential. In principle every house, farm, and factory could free itself from the grid by generating its own power. No longer would power lines and gigantic, leak prone tankers be needed for the transportation of energy; no longer would workers have to toil in underground mines or remote deserts or rough seas; there would be no need for the long supply chains required by fossil fuels. (Amitav Ghosh, The Nutmeg’s Curse, p. 102, emphasis mine)

Context makes it clear Ghosh is thinking of coal mining, oil fields, and offshore platforms when he dreams of a world where workers no longer toil. But in his reverie, Ghosh neglects an important and undeniable feature of renewable energy: it is mining intensive.

The IEA sees demand for critical minerals surging from 2020-2050 even as the demand for and value of coal drops. In green growth scenarios, workers will likely have to keep toiling in mines as they now do in Chile’s Atacama desert, the cobalt mines of the Democratic Republic of Congo, or the copper and nickel mines of South Asia, South America, or Siberia. The list of potential sacrifice zones will grow and could someday extend from American public lands to offshore oil platforms converted to deep-sea mining.

This observation is not an argument against the transition from fossil fuels. It’s just to say that right now there are no signs the shift to renewables will undo the resource curse. Extraction for global markets continues to exact a local toll: serious human rights violations, unremediated (or irremediable) environmental destruction, conflicts over water (which Ghosh himself mentions briefly in a list of “conflicts that global warming will create or exacerbate,” p. 127), and social division. And for the foreseeable future, mineral supply chains will be nearly as long as those required by fossil fuels, strung across the globe and fraught with geopolitical tension.

A decisive shift from fossil fuels could see the end of the petro-dollar and the toppling of “global hierarchies of power,” as Ghosh imagines: “The liberatory potential of renewable energy has a very important international dimension as well: if adopted at scale it could transform, indeed revolutionize, the current global order” (p. 103). It could also precipitate another set of crises – environmental, humanitarian, and military — and it’s worth considering that eventuality.

Postscript, 20 January 2022: For more on the geopolitical risks of the energy transition, see Jason Bordoff and Meghan L. O’Sullivan, “Green Upheaval The New Geopolitics of Energy,” Foreign Affairs, January/February 2022.

Public Comment on the Rainy River Watershed Withdrawal

My written comments ran to five pages, so instead of posting them here, I put them online as a PDF, which you can read here. I also made a three-minute comment in the live session hosted by the Bureau of Land Management and the US Forest Service this afternoon. My comments focus mainly on the story I’ve been pursuing for the past few years — a story of corruption. The first couple of paragraphs convey the general idea:

Federal lands in the Rainy River Watershed should be withdrawn from disposition under US mineral and geothermal leasing laws for the proposed initial twenty-year period, if not permanently. This is an overdue decision, grounded in science, economics, law, and environmental ethics.

Why, then, hasn’t it already happened? How did this withdrawal process, which started in 2017, go off track? Agency records obtained through the Freedom of Information Act show clearly that a foreign mining company, Antofagasta plc, acted to prevent the withdrawal; and from 2017-2021, members of Congress and the executive branch ran political interference on its behalf. Decisions taken behind closed doors during that period served foreign private interests, not the American public interest. The agencies now have an opportunity to rectify the situation.

I end with three recommendations:

The announcement on October 20, 2021, that the Biden administration will complete the “science-based environmental analysis” was encouraging. Given all the political interference, the two-year study really ought to have been started all over again, from scratch, in the interest of scientific integrity. At the very least, USDA Secretary Tom Vilsack should release – unredacted — the preliminary findings of the canceled two-year scientific study, so that they can be compared with the new and complete analysis.

As agencies work toward a science-based decision on the twenty-year withdrawal, they also need to take additional steps to restore public confidence and guard against undue influence. As a first step, the USDA Inspector General could review Secretary Perdue’s decision to cancel the 2017 withdrawal process and report on scientific independence, ethical conduct, and political interference at the agency.

Finally, the agencies can help raise standards. Industry repeatedly assures us that non-ferrous mining in the Rainy River Watershed and elsewhere can be done “responsibly,” and there are a growing number of calls, from Congress and from within the Biden administration, for “responsible mining” for the transition to renewables. How should government respond? Rigorous and practical guidance for agencies on the law and ethics as well as the technical and scientific aspects of “responsible mining” would be a good start.

Here is a recording of my three-minute live comment, which tracks all this pretty closely. Video is cued to the mark.

Rorty on Threats vs. Offers

This passage from Richard Rorty’s Pragmatism as Anti-Authoritarianism resonates with some of the posts I’ve written about orders vs. requests, consultation and non-coercive practices, and what we are doing (or what we should do) when we ask someone to do something. It seems even more relevant now than when the lectures included in this book were delivered (in the 1990s), especially that last paragraph.

…[T]he only notion of rationality we need, at least in moral and social philosophy, is that of a situation in which people do not say “your own current interests dictate that you agree to our proposal” but rather “your own central beliefs, the ones which are central to your own moral identity, suggest that you should agree to our proposal.” …To appeal to interests rather than beliefs is to urge a modus vivendi. Such an appeal is exemplified by the speech of the Athenian ambassadors to the unfortunate Melians, as reported by Thucydides. To appeal to your enduring beliefs as well as to your current interests is to suggest that what gives you your present moral identity—your thick and resonant complex of beliefs—may make it possible for you to develop a new, supplementary moral identity. It is to suggest that what makes you loyal to a smaller group may give you reason to cooperate in constructing a larger group, a group to which you may in time become equally loyal, or perhaps even more loyal. The difference between the absence and the presence of rationality, on this account, is the difference between a threat and an offer—the offer of a new moral identity and thus a new and larger loyalty, a loyalty to a group formed by an unforced agreement between smaller groups.

…any unforced agreement between individuals and groups about what to do creates a form of community, and will, with luck, be the initial stage in expanding the circles of those whom each party to the agreement had previously taken to be “people like ourselves.” The opposition between rational argument and fellow feeling thus begins to dissolve. For fellow feeling may, and often does, arise from the realization that the people whom one thought one might have to go to war with, use force on, are, in Rawls’s sense, “reasonable.” They are, it turns out, enough like us to see the point of compromising differences in order to live in peace, and of abiding by the agreement that has been hammered out. They are, to some degree at least, trustworthy….

If we cease to think of reason as a source of authority, and think of it simply as the process of reaching agreement by persuasion, then the standard Platonic and Kantian dichotomy of reason and feeling begins to fade away. That dichotomy can be replaced by a continuum of degrees of overlap of beliefs and desires. When people whose beliefs and desires do not overlap very much disagree, they tend to think of each other as crazy, or, more politely, as irrational. When there is considerable overlap, on the other hand, they may agree to differ, and regard each other as the sort of people one can live with—and eventually, perhaps, the sort one can be friends with, intermarry with, and so on. To advise people to be rational is, on the view I am offering, simply to suggest that somewhere among their shared beliefs and desires there may be enough resources to permit agreement on how to co-exist without violence. To conclude that somebody is irredeemably irrational is not to realize that she is not making proper use of her God-given faculties. It is rather to realize that she does not seem to share enough relevant beliefs and desires with us to make possible fruitful conversation about the issue in dispute. So, we reluctantly conclude, we have to give up on the attempt to get her to enlarge her moral identity, and settle for working out a modus vivendi—one which may involve the threat, or even the use, of force.

Four Post Growth and Green Growth Scenarios

This passage about a “transformation of values on which a different kind of economy might be built” is the core of Tim Jackson’s argument in Post Growth: Life After Capitalism, as I read it.

Developing the foundations for a postgrowth economy demands more of us than bemoaning the massive damage inflicted on society and the planet through the power of accumulation. Just as we need to unravel the dynamic through which human work is degraded and distorted under capitalism’s yoke, so we need to delve more deeply into the machinery of capital itself before we can arrive at the transformation of values on which a different kind of economy might be built. (p. 131)

A longer discussion might pick up each of the threads here and trace them through Jackson’s book: the critique of GDP as the measure of prosperity (or wealth as accumulation); the discussion of Arendt on meaningful human work and the building of a durable world; and prescriptions to correct human craving and consumption, or to transform values, from Aristotle to Thich Nhat Hanh.

Focusing just for the moment on the last of these, on the transformation of values, four scenarios present themselves.

A “transformation of values”:

  1. may go as Jackson would like it to go (Green Prosperity);
  2. may not ever happen, even as we make the transition to renewables (Green Profligacy);
  3. may not happen in a timely way, impeding the transition  (Green Delay);
  4. may come about, but not in the direction Jackson imagines (Green Austerity).

Of these four futures, I suspect the second, third, and fourth are more likely than the first.

The Boundary Waters, Offshore: Luksic in the Pandora Papers

A chart of Luksic-connected offshore entities included with the CIPER report.

Last week, El Centro de Investigación Periodística (CIPER) published an investigative report on the offshore financial activities of Andronico Luksic Craig and the Luksic family, based on the Pandora Papers — a trove of over 11 million records leaked from tax havens in the British Virgin Islands. The investigation cast some new light on the elaborate network of offshore corporations, foundations, law firms, and corporate services companies involved in managing some of the Luksic family’s vast fortune, and brought me back to some of the records I’d uncovered in connection with Luksic’s purchase of the Washington, DC mansion where Jared Kushner and Ivanka Trump lived while serving in the Trump White House.

Luksic acquired that $5.5 million Kalorama property right after Trump won the 2016 election, right around the time Kushner-Trump were preparing for their move to the nation’s capital and at a critical moment when Antofagasta plc, the Chilean mining company controlled by Luksic, was counting on the Trump administration to reverse policies of the Obama administration (which it duly did). This neat arrangement may not have been a simple quid pro quo, a mansion provided in return for government approvals to mine copper and nickel on the edge of the Boundary Waters, but even to the casual observer it looks an awful lot like a foreign emolument. Unfortunately but not surprisingly, the matter never underwent a formal ethics review. (More on all that here, here, and here.)

While these new documents do not directly shed light on the Kalorama emolument, they provide some insight into how Luksic’s control of Antofagasta is connected to offshore schemes and how the Kalorama mansion might figure into a network of Luksic-controlled US property holdings.

One company called out in the CIPER investigation, FDMDA Corp, looks like a more elaborate version of a company I came across in Boston property records, LDMD Corp, which was registered as the owner of two Avery Street properties from 2011 to 2013. FDMDA carries the first initials of the names of Luksic’s five children, while LDMD appears to have been created solely for the male heirs. (I am assuming the L in LDMD stands for Andronico Luksic, the first-born son, with DMD representing Davor, Maximiliano, and Dax.) Two others, Beacon Eagle Corporation and Avery Eagle Corporation, also look like another iteration of Boston property-holding companies formed by Luksic attorneys, Avery Bicentennial Corp and The Avery Millennium Corp.

These corporations owned and still own condominiums on Avery and Beacon streets in Boston. The Beacon Street property includes a penthouse that Luksic (or, rather, Avery Bicentennial) purchased from quarterback Tom Brady in 2012 — which is right around the time that Luksic says he and Donald Trump “said hello” or exchanged a greeting at a New England Patriots’ game, where they would have been guests of Brady, a mutual acquaintance, or of billionaire owner Robert Kraft. So Brady connects Luksic to Trump — suggesting there might be a little more to the Kalorama mansion story than serendipity. What’s not clear is how the entities formed around the Boston properties, or even Luksic’s Miami and Washington DC properties, might be legally connected with the two Eagle companies mentioned in the Pandora Papers.

On April 28, 2017, FDMDA Corp and Beacon Eagle Corporation were relocated from the British Virgin Islands to Liechtenstein, where they were subsumed under an entity called The Lazare Tcherniak Foundation. (The disposition of Avery Eagle remains unclear.) The Lazare Tcherniak Foundation “provides for the economic furtherance of the descendants of Nadia Malvine Tcherniak” — Patricia Lederer Tcherniak is Luksic’s ex-wife and mother of his five children — “that bear the name Luksic as their first or second name and that are also biological descendants of Andronico Luksic Abaroa [Andronico Luksic Craig’s father]. They are all members of a generally defined and fully discretionary class of beneficiaries.”

While Beacon Eagle appears to be bound up with US-based real estate investments, FDMDA Corp. serves Lazare Tcherniak Foundation beneficiaries by managing and distributing stock dividends. Records reviewed by CIPER describe the source of FDMDA Corp’s funds as “mining activities in the Republic of Chile. The funds are mainly dividends indirectly received from Antofagasta plc, a public company listed on the London Stock Exchange.” Here, “indirectly” probably indicates that there is an entity — a partnership — to which the Antofagasta plc dividends are paid before they are distributed, in whole or in part, to the Liechtenstein-based FDMDA Corp.

Of course, all of this appears to be perfectly legal, as Andronico Luksic himself pointed out in a tweet responding to the CIPER report.

While technically true (“Liechtenstein is NOT a tax haven” because Chilean tax authorities don’t include it in their list of tax havens), this statement was rapidly ratioed. Along with President Sebastian Piñera’s own exposure in the Pandora Papers, Luksic’s exposure and his carefully lawyered response just provide more fodder for the debate over inequality in Chile.

Luksic’s  October 6 statement also prompts questions about corporate governance, the extent of the Luksic Group’s reach, and its attendant responsibilities. With a controlling interest in Antofagasta plc, the Luksic Group can easily thwart any shareholder resolutions not to its liking and effectively determine how the company and its subsidiaries are run, all from behind the scenes and with little accountability. That is shadow governance, and it’s the very model of corporate governance that Antofagasta brings to its Twin Metals project near the Boundary Waters.

Postscript. Oct 20, 2021. The same elaborate network of Luksic foundations, offshore companies, tax havens, and investment vehicles is evident in the disclosures filed by Antofagasta’s three lobbying firms: Brownstein Hyatt, Wilmer Hale, and The Daschle Group. I addressed the topic in this Twitter thread:

Read more about the Boundary Waters reversal here

John Ruggie (1944-2021)

Word of John Ruggie’s passing prompted me to look back at the times I engaged with his work on business and human rights, including these ten posts, and to revisit the one instance I know of where he engaged with mine. This was an endnote he wrote, with a link to this blog, for Life in the Global Public Domain.

It was nothing more than a brief reference (“also see…”), but it made an impression on me. After all, who was I to John Ruggie? Not a student, not a colleague in any formal sense. We never even met. But I read him and respected his work; and to my great astonishment, he read me and repaid me in kind with a small, gracious gesture.

Here, the Business and Human Rights Resource Centre has collected tributes to John Ruggie from around the world.