Category Archives: Louis V. Galdieri’s Blog

A Brief Note to Close the Year

Having my research on the Boundary Waters reversal featured in a front page New York Times story ought to have been the highlight of my year. But whatever satisfaction I might have felt when the story ran back in June of 2019, or when some of the documents I obtained were cited in Congressional hearings, has now given way to more deeply felt concerns about the direction things appear to be taking and the inadequacy of my efforts to do anything about it, except, perhaps, to point to more evidence of corruption, undue influence, and administrative malfeasance.

Over the past year, my plans for a documentary film about the mischief I’d begun to uncover were sidetracked, and — who knows — maybe even fatally derailed by a complex paper chase, which at this point involves about a half dozen Freedom of Information Act requests and a pro-se FOIA lawsuit I brought. The detour is now the road. It happens more often than not. Maybe the best I can do, at present, is to keep following the story where it leads and report on what I find along the way.

With the outcome of my records requests and the larger project of which they are a part uncertain, and with other projects also needing my attention, I’ve got plenty to keep me busy. Besides, the frustration of my own plans counts for very little when you consider the bigger picture.

Having obtained a favorable legal opinion from the Department of Interior and put the kibosh on a planned two-year scientific study, the mining company and its government touts are charging ahead. In just the past few weeks, we have seen Twin Metals submit a mine plan to the Bureau of Land Management and the Minnesota Department of Natural Resources, and Republicans have worked together with Treasury, OMB, and the Executive Office of the President to strip language from the 2020 budget that would have funded a new study by the National Academy of Sciences. Representative Betty McCollum has asked the State Department to submit a report on how the US will meet its obligations under Article IV of the Boundary Waters Treaty of 1909 if sulfide mining in Superior National Forest should proceed; and Voyageur et al. v. US, the most serious legal challenge to the Twin Metals project, is ongoing. But right now the momentum appears to be with those who would refuse science, ignore history, and subvert the law.

On September 27 of this year, the Department of State informed me that a Freedom of Information Act request filed in November of 2018 will not be completed until April of 2022.

In this regard, the momentum around Antofagasta’s Twin Metals project describes what is by now a familiar pattern. Many aspects of this story fit the new mold of our dysfunctional politics. Two of my pending FOIA requests — one to State, the other to Interior — seek documents on the use of the United States embassy in Santiago, Chile as a business backchannel. We don’t know why or to what extent the State Department was involved in advancing the business interests of a Chilean conglomerate. Questions persist about Trump’s first nominee for ambassador to Chile — Andrew Gellert, a longtime business associate of the Kushners — and about the nominee who replaced Gellert after his nomination was quietly withdrawn: Leora Levy, a republican fundraiser and Trump campaign surrogate from Connecticut who donated $25,000 to Trump’s inaugural. The quid pro quo shenanigans revealed by the Ukraine fiasco suggest these foreign policy questions might be worth pursuing. With the State Department telling me that I should not expect any response to my FOIA request until April 2022, we may have to resort to reading the tea leaves of whatever Boundary Waters report the State Department releases in response to Congresswoman McCollum’s request.

We head into the new year with a lot of issues in this case still unresolved, and it’s not clear that resolving them — finding out the truth, or discovering exactly how this particular deal went down — will necessarily have much bearing on how things actually turn out. The destructive forces set in motion are not likely to be stopped or even slowed by some new fact or revelation — though there’s always the chance they might. Power may not now be “immune to truth-tellers”, as Dahlia Lithwick recently wrote, but the people currently in power are certainly impervious to truth, contemptuous of knowledge, and dismissive of evidence. The answer to their epistemological nihilism is not despair, or the fond hope that one day history will vindicate the truth-tellers (and on this point I depart from Lithwick). The answer, instead, is to reclaim and reconstruct power. That is the essential work of the next decade.

On the Boundary Waters, Top Interior Department Lawyer Gets the Historical Record Wrong

Newspaper accounts and congressional testimony from 1966 suggest that Solicitor of the Interior Daniel Jorjani overlooked — or deliberately suppressed — critical evidence when he ruled, in 2017, that Antofagasta Plc had a right to renew its mineral leases near the Boundary Waters.

About a month ago, and just two days after his Senate confirmation as Solicitor of the Department of the Interior, Daniel Jorjani appeared before the House Natural Resources Committee to testify about his agency’s failure to cooperate with congressional oversight requests.  A highlight of that hearing came when Representative Alan Lowenthal pressed Jorjani about the renewal of mining leases near the Boundary Waters.  Jorjani was politically motivated, Lowenthal contended, and acted without regard for “history, law, and common sense.”

To help drive home the point, Lowenthal produced a 1966 Department of the Interior press release that directly contradicts one of the key legal arguments Jorjani made: that the terms of the original 1966 International Nickel Company leases “govern” the two leases currently held by Antofagasta, Plc, and — this is critical to his argument — that renewal of the leases was not conditioned on bringing the mine into production: “the historical record of the 1966 lease implementations,” Jorjani wrote, “show that production was not made a condition of renewal.”

In making this argument, which involves a tortured reading of renewal terms in Section 5 of the 1966 leases, Jorjani followed the lead of Antofagasta’s own legal counsel, Seth Waxman. Here, Waxman appears to have led Solicitor Jorjani astray. As Lowenthal points out, Jorjani is unable to account for the Department of the Interior’s own press release, issued the very day the leases were signed in 1966, which states unambiguously that the leases will be renewed “if the property is brought into production within the initial 20 year term.” What are we to make of this discrepancy? This is a question Lowenthal has been asking for two-and-a-half years.

In the exchange that follows, Jorjani says legal opinions about contracts are “not driven by press releases” and offers some evasive, time-wasting thank yous for the question, but he fails to put the matter to rest. Here’s video cued to the start of Lowenthal’s time.

News reports about the lease signing only serve to strengthen Lowenthal’s point. A June 15, 1966 Associated Press story by George Moses reproduces the language of the Department of the Interior press release. Here, for example, is a detail from the story as it ran in the Fergus Falls, MN Daily Journal:

The twenty year condition appears to have been an uncontroversial part of the agreement, unlike royalty rates, which took until November of 1966 to approve. On November 14, 1966, the Star Tribune could still say “the situation in regard to copper and nickel taxation is cloudy,” and an article in the Star Tribune on December 22, 1966 makes it clear the subject is still being debated into the winter; but there is no indication of controversy over the lease renewal terms.

In the June 15th Associated Press story, Henry Wingate, Chairman of International Nickel Company, “said he expects the property to be producing within a few years.” He and others at International Nickel were confident — too confident, as it turns out. In a July 13, 1966 story in the Minneapolis Star, published just about a month after the lease signing, Wingate’s second in command, John Page, predicted they’d be in production “in three years, if everything goes right.”

Wingate and other executives at International Nickel were confident they could bring the Minnesota leases into production within the space of a few years because they had successfully brought a much larger mining operation into production in just four and a half years. In that case, they also had to build a town to house 4,000 workers and their families. (That is how the boomtown of Thompson, in Manitoba, Canada, came to be built.) Twenty years would have seemed like a cakewalk. Others felt assured. When John G. Harlan Jr. of the General Services Administration testified before the Senate in 1967, his understanding was that International Nickel “plan to get into the production” in Minnesota by the early 70s.

Wingate, Page, and Harlan were about to be disappointed and see their confidence deflated. Right around the time International Nickel signed its Minnesota leases, the company’s fortunes took an unexpected turn. Competition stiffened, as other producers began bringing less expensive nickel oxides and ferroalloys into production. Nickel miners struck at International Nickel’s Sudbury mine. In 1966, the strikes were violent; in 1969, they were disruptive. The early 1970s brought recession. International Nickel’s stock tumbled, and Wingate’s successor,  L. Edward Grubb, made it his policy to curtail new development. Wingate would die in 1977 without seeing the Minnesota leases he’d signed a decade earlier come into production.

For Jorjani’s reading of the 1966 leases to prevail, we have to ignore all this history — the issuing of the press release and contemporary news reports, the company’s false projections of confidence, the bottom-line effects of work stoppages and labor strife, the economic stagnation of the early 1970s, and the decision at International Nickel to cut back on new development. Surely this is all part of the rich historical record, and even this cursory review shows exactly the opposite of what Solicitor Jorjani claims.

Postscript, November 22, 2019. Nicholas Lemann devotes a few paragraphs to International Nickel’s 1974 acquisition of Electric Storage Battery (ESB) in Transaction Man: The Rise of the Deal and the Decline of the American Dream. It was the first “hostile” takeover (F.J. Port, ESB’s president, called it a “hostile tender offer made by a foreign company for all of ESB’s shares”).

The deal set a precedent, and helped set the pattern for a broader economic transition from industrial to financial capitalism. It also helps illustrate how far International Nickel had traveled in the short space of the eight years since it had acquired its Minnesota mineral leases in 1966.

By 1974, International Nickel Company was looking for steady and reliable sources of revenue to offset cyclical downturns in nickel, and ESB’s battery business seemed to offer that. After a hard fought battle, International Nickel won a Pyrrhic victory, purchasing ESB at an inflated price. The battery maker was losing money by 1981. Inco eventually broke it up and sold its parts.

Read more about the Boundary Waters reversal here

 

Interior Still Hiding the Role of Political Appointees — Update on the Boundary Waters FOIA Case

Interior’s latest responses to my FOIA complaint show that the Office of the Solicitor continues to protect political appointees from public scrutiny. 

Back in July, I filed a complaint against the U.S. Department of the Interior in the US District Court for the District of Columbia, saying Interior had violated the Freedom of Information Act and was wrongfully withholding responsive documents. After providing me with about 5,000 pages of documents in response to a FOIA request I’d made on January 19th, 2018, and promising a “rolling release” of more documents, Interior abruptly cut me off, failing to answer numerous emails and phone calls, and leaving me with no recourse but to ask the court to compel them to comply with the law.

After asking for an extension, which I granted, lawyers for Interior filed an answer to my complaint on Wednesday, October 15th. The following day, Judge Boasberg issued a minute order asking the parties to confer and submit a joint proposed briefing schedule by the end of this month. It seems the case is now ready to go forward, with Interior maintaining that my complaint is groundless.

In a bid to settle the whole matter once and for all, just a few days earlier, on October 10th, Interior released a new set of responsive documents. The decision letter that accompanied this release copies the DOJ attorney for the defendants and characterizes this as the “third and final” decision for this particular FOIA request.

So, the position of the Department of the Interior appears to be: we have given you everything you are going to get, and you should stop complaining. The main trouble I have with this position is that they haven’t even begun to give me the very documents I ask for in my FOIA request: namely, and this is the very first item in the request, “any communication sent and received by the Office of the Interior Secretary Ryan Zinke, including but not limited to any emails or letters sent and received directly by the Interior Secretary Ryan Zinke or on behalf of the Interior Secretary Ryan Zinke, regarding the Boundary Waters Canoe Area Wilderness, Antofagasta Plc, Twin Metals Minnesota,” and so on.  I’ve gotten nothing — zero, zip — to or from Ryan Zinke. Are we to believe that the Secretary of the Interior never communicated about a major reversal by his department of the previous administration? Nor have I gotten anything to or from Deputy Solicitor Daniel Jorjani, who signed the reversal, and whose communications I also asked for.

It’s pretty clear that Interior is protecting political appointees like Zinke and Jorjani from having to show their work — which is exactly what Jorjani has been trying to accomplish with his expansion of the FOIA awareness review policy at Interior. That is the thrust of reporting (like this and this) by Jake Holzman at Roll Call, and the reason why organizations like American Oversight, Earthjustice, and the Western Values Project have asked Interior’s Inspector General to launch an investigation of the awareness review process. It’s also an issue on which Jorjani may have misled the Senate during his confirmation hearing, prompting Senator Ron Wyden to ask that Jorjani’s confirmation be held up until it could be established whether he had perjured himself. (Despite Wyden’s effort, Jorjani was confirmed as Solicitor on September 24, 2019.)

What I’ve gotten, instead, is the work product of civil servants, career attorneys, not political appointees. Even that material has been revealing. With the documents provided so far, I’ve managed to put together a timeline of the work done at interior to reverse the Obama administration. The documents allow us to reconstruct an intensive lobbying effort led by WilmerHale that included visits by executives from Chilean mining conglomerate Antofagasta Plc and its subsidiary Twin Metals to the US Embassy in Santiago, Chile, the Department of the Interior, and the White House. It appears Antofagasta’s attorneys at WilmerHale even provided the blueprint for the M-Opinion, the reversal, that Daniel Jorjani eventually signed. Since I first put them online, these documents have also made their way into Congressional hearings and on to the front page of the New York Times.

The latest release of responsive records is yet another partial disclosure that keeps the work of political appointees out of view. The records come from Division of Mineral Resources attorney Brianna Collier. It’s the second batch of documents from Collier, and though they give us a little more detail into the reversal process, they are a dodge. I’ve added them to the online collection of Boundary Waters FOIA documents here.

All of the work product is heavily redacted, most of it totally redacted. Collier’s emails are more lightly redacted, and they show her at work on the draft of the Boundary Waters reversal as early as May of 2017, when she first prepares an outline of the new M-Opinion. She starts writing a draft in earnest after a meeting between Interior officials and Twin Metals executives on October 12th, 2017. She’s tasked with getting the thing done in the space of about a month, but others, like Jack Haugrud, appear to be calling the shots (as Collier makes clear on November 17th, when she writes to tell Haugrud she is “working away on editing the Twin Metals opinion according to your directions”).

Something notable happens that very evening, the new correspondence reveals. Haugrud becomes aware that Gary Lawkowski — a political appointee who at that time is serving as Counsel to Daniel Jorjani, and who worked with Jorjani at the Koch-affiliated Freedom Partners Chamber of Commerce — has been working on his own draft:

So it appears that there were, at one point, two drafts of the M-Opinion in circulation, one that Collier had been working on since first making an outline in May, and then another by political appointee Gary Lawkowski. Haugrud saw it as his job to reconcile them before forwarding the opinion to Daniel Jorjani for review. It’s not clear Lawkowski’s “ideas” made it into the final draft of the M-Opinion, or what those ideas were. When we next come across Lawkowski in the records we have so far, it’s December, and he’s circulating talking points about the reversal that put the focus on strategic and critical minerals. Does that tell us something about his ideas one month previous? If so, those political arguments never made it into the final M-Opinion.

Until we see more documents, and learn more about why this matter was a priority for the Trump administration, it will also remain unclear what role political appointees like Lawkowski, Jorjani, and Zinke played in the Boundary Waters reversal. This appears to be something they are trying to keep from the public. Why?

Read more about the Boundary Waters reversal here

Posner is Right About Why Friedman is Wrong, But…

It’s worth reading Eric Posner on why Milton Friedman was wrong. My issue is with the historical setup to the argument.

The shareholder theory is usually credited to Milton Friedman, the University of Chicago economist and Nobel laureate. In a famous 1970 New York Times article, Friedman argued that because the CEO is an “employee” of the shareholders, he or she must act in their interest, which is to give them the highest return possible. Friedman pointed out that if a CEO acts otherwise—let’s say, donates corporate funds to an environmental cause or to an anti-poverty program—the CEO must get those funds from customers (through higher prices), workers (through lower wages), or shareholders (through lower returns). But then the CEO is just imposing a “tax” on other people, and using the funds for a social cause that he or she has no particular expertise in. It would be better to let customers, workers, or investors use that money to make their own charitable contributions if they wish to.

Friedman’s theory was wildly popular because it seemed to absolve corporations of difficult moral choices and to protect them from public criticism as long as they made profits. At the same time, it took CEOs down a peg—yes, they were resented even in 1970—by denying that they were visionaries with public responsibilities. And Wall Street saw dollar signs in the single-minded devotion to corporate profits.

Of course, Friedman never mentions “the CEO” in his 1970 article. Friedman uses “managers,” “businessmen,” and “corporate executives” to discuss the agents who enter into “voluntary contractual arrangement” with the corporation’s principals or owners: e.g., “the key point is that, in his capacity as a corporate executive, the manager is the agent of the individuals who own the corporation or establish the eleemosynary institution, and his primary responsibility is to them.” As I’ve observed in a number of posts, the acronym “CEO” would not come into wide use until about five years later, and then only in business journals. The general public would not start hearing about CEOs until the very late 1970s and early 1980s.

So while business executives might have been “resented even in 1970,” CEOs strictly speaking were not. If this is a quibble it’s a revealing one. It allows us to see the CEO historically, and as the creature of Friedman’s wildly popular doctrine.

Though they, too, may have been targets of public criticism and resentment, by the 1980s CEOs were also being made into celebrities and held up as models of American leadership. And as “the single-minded devotion to corporate profits” — and rapidly rising CEO pay — came to be celebrated as “visionary” in its own right by the fledgling business press, the words “visionary” and “vision” would come in for decades of abuse.

Boundary Waters FOIA on Fox 9 “Investigators”

In this July 29th Fox 9 “Investigators” segment about sulfide mining near the Boundary Waters, I make a brief appearance at around the 7:30 mark.

Read more about the Boundary Waters reversal here.

New Boundary Waters FOIA Complaint Filed Against US Department of Interior

Yesterday, I submitted my complaint against the United States Department of interior to the US District Court in the District of Columbia, asking the court to compel DOI to comply with the Freedom of Information Act and release documents I’ve requested about the Boundary Waters reversal.

As a pro se litigant, I had to petition the court for leave to use the Electronic Case Filing system, so for now I am in the slow lane, waiting for my paper filing to be assigned a case number. [Update, August 2, 2019: Galdieri v. US Department of the Interior has been assigned Case No: 1:19-cv-02253 and Judge James E. Boasberg has also granted my motion for pro se access to Electronic Case Filing.] In the meantime, I thought it would be helpful to post the complaint online.

There have been a number of reports lately about the efforts to hobble FOIA at the Department of Interior; and just this week, Gail Ennis, the Acting Inspector General at the Department of Interior, announced an investigation of the department’s FOIA Awareness Process.

Ennis is taking this step after several watchdog groups, including American Oversight and the Western Values Project, charged that the awareness review policy at Interior was instituted to protect Trump political appointees from public scrutiny. (EPA instituted a similar policy last month.)

In my complaint, I mention the expansion of that policy in February, 2019, to cover Ryan Zinke and other officials. It seems to have played into Interior’s abrupt cessation of all communications with me, and its apparent decision to withhold responsive documents.

After corresponding with me fairly regularly for almost a year about my FOIA request, providing two document releases, and promising “additional documents” as part of a “rolling response,” Interior went silent on me as soon as I put the documents I obtained online. Since February, when I first published those documents, they have failed to respond to multiple emails and phone calls requesting a status update on forthcoming releases. They even failed to respond to several emails asking whether I had, in fact, exhausted all administrative remedies. I guess their silence is the answer to my question.

I suspect I’ve been blacklisted, or, if that’s too strong a word, at least singled out. My argument here is not just post hoc propter hoc. About a month after I first put the Interior documents online, something else happened to deepen my suspicions.

On March 26th, the Solicitor at the Department of the Interior began to follow me on Twitter.

Jorjani1

This account — which was created in February of 2017, never tweeted, and has since been taken down — appears to have belonged to Daniel Jorjani (DJ). In February of 2017, Daniel Jorjani was Principal Deputy Solicitor (PDSOL) at the Department of Interior: DJ, the PD, at SOL. (I have no idea what the 9999 is about.) He’s now Acting Solicitor and — let’s not forget — he also serves as the Department’s Chief FOIA Officer.

Back in March, the DJPDSOL9999 account was following a number of environmental organizations, like EarthJustice, the NRDC, the Center for Biological Diversity, Defenders of Wildlife, Western Environmental Law, Wilderness Watch, Cultural Survival, and Indian Land Tenure. DJPDSOL9999 was also following Jenny Rowland Shea, who writes about public lands for American Progress, Anna Massoglia, who researches dark money, Aaron Weiss from the Center for Western Priorities, and climate scientist Katherine Hayhoe. The list went on.

At the time he followed me, @DJPDSOL9999 had “liked” only one thing, and that was on March 21st of this year: a retweet with comment by “Matilda Williams” (@katherinewill27) of a tweet by Swing Left of a Washington Post article.

Jorjani2

The article in question is by Julie Ellperin: “Federal Judge Demands Trump Administration Reveal How Its Drilling Plans will Fuel Climate Change.” It’s about a ruling by U.S. District Judge Rudolph Contreras that the Department of Interior “violated federal law by failing to take into account the climate impact of its oil and gas leasing in the West.” Judge Contreras ordered the Bureau of Land Management “to redo its analysis of hundreds of projects in Wyoming.” It was a big loss for BLM. Jeremy Nichols of Wild Earth Guardians is quoted as saying that the ruling “calls into question the legality of the Trump administration’s entire oil and gas program” — which is, of course, Daniel Jorjani’s responsibility.

The lazy false equivalence drawn by Matilda Williams — Obama too! — misses the entire point of Ellperin’s article. “While the Interior Department began to take into account the climate impacts of federal oil, gas and coal leasing toward the end of Obama’s second term, administration officials jettisoned those plans when President Trump took office.” Zinke, Pruitt, and Jorjani himself were enlisted in this fight, and back in March, DJPDSOL9999 apparently felt that they got a bad deal.

In theory, there’s nothing wrong with the Chief FOIA Officer at the Department of Interior operating a stealth account on Twitter. If, however, he’s using it to track people who are making public records requests, that is going to raise serious ethics concerns, especially if he is denying or withholding records on the basis of what those people publish.

Perhaps the Inspector General’s report will shed further light on the matter.

Read other posts about the Boundary Waters reversal here

The Boundary Waters Reversal Makes the Front Page of the New York Times

The story about the Boundary Waters reversal in the New York Times appears to be causing a stir. Hours after its online debut on Tuesday, the article had attracted hundreds of comments and was all over social media; yesterday, it appeared above the fold on the front page of the print edition. What struck me first about public reaction was that Times readers — a civic-minded and educated lot, on the whole — seem to have been unfamiliar with the basic elements of this story until now.

Most of the commenters’ heat appears to be focused on the Kalorama rental arrangement, which finds the daughter and son-in-law of the president renting a mansion from billionaire Chilean mining magnate Adronico Luksic Craig. It’s the most lurid part the story, and hints at some darker deal, or explicit quid pro quo: a mansion for a mine. I still think caution on that point is warranted.

Luksic was easily able to dismiss earlier reporting in Newsweek, HuffPo, and elsewhere on the rental, because it was based on the laziest form of reporting: writing up a (typically colorful) tweet by law professor and Bush administration ethics official Richard Painter about Luksic using “the Boundary Waters as his toilet”.

He stuck with this denial after the Times story appeared.

Luksic’s denial almost always turns on the issue whether he has ever “met” or “knows” the Trumps and Kushners. In the Times story, however, Luksic’s purchase of the Kalorama mansion is characterized in another way: as a soft opening bid, bringing Jared and Ivanka into an inappropriate, ethically compromised relationship from the moment they arrive in Washington. They are senior White House officials living under Luksic’s roof:

…several ethics experts said they would have cautioned Mr. Kushner and Ms. Trump against renting the home, given the Luksic family’s business before the administration.

“There may be nothing wrong,” said Arthur Andrew Lopez, a federal government ethics official for two decades who is now a professor at Indiana University’s Kelley School of Business. “But it doesn’t look good.”

It doesn’t really make the arrangement look any better to say they “decided to lease the home before knowing the landlord’s identity,”as Peter Mirijanian, a spokesman for Kushner lawyer Abbe Lowell tells the Times; and it’s worth noting that Mirijanian “did not directly respond to questions about whether they learned of that identity before signing the lease,” which would presumably have given Kushner and Trump an opportunity to review the matter with ethics officials. Besides, Rodrigo Terré, a Luksic agent, “said both sides were aware of each others’ identities before the rental deal was finalized. ‘We disclosed our name and the name of my boss,’ he said in a telephone interview.” That’s pretty unambiguous.

After asking out loud — again — whether there had been any formal ethics review of the leasing arrangement, I received this reply from one of the Times reporters:

There is additional new reporting here about the rental arrangement and other matters.

We learn, for example, that Charles and Seryl Kushner accompanied Jared and Ivanka on their tour of the Kalorama mansion. That family picture raises other questions, mainly about Charles Kushner’s longtime business associate George Gellert — who along with his son Andrew Gellert has extensive business connections in Chile. This angle seems worth exploring, especially since the White House nominated Andrew Gellert to be ambassador to Chile. (The nomination was quietly withdrawn, without explanation, in August of 2018. For more, see this post.)

Times reporting also appears to confirm that Antofagasta did, indeed, meet with the White House in May of 2017. The emails I had obtained through FOIA only hinted at the possibility of a meeting: “this same group [from Antofagasta] may also have a meeting at the White House,” wrote Interior’s Karen Hawbecker on April 28th.

A key meeting occurred in early May, when Antofagasta’s chief executive, along with other executives and lobbyists, discussed the issue with the White House’s top adviser on domestic energy and the environment, Michael Catanzaro. The company said it wanted to reverse the Obama-era decisions, which it said were illegal and inflicted “undue damage.”

That meeting now appears in an update to the Twin Metals at Interior timeline. As I’ve pointed out in another post, Catanzaro is especially close to the current Secretary of the Interior, David Bernhardt. While at the White House, Catanzaro had a regular weekly call with Bernhardt. The two oil and gas lobbyists often had lunch together as well. This would be yet more evidence, if more were required, that the Chilean mining conglomerate owned by the Luksic family had unbridled access to the highest reaches of the administration, and these public officials were working on the mining company’s behalf.

The message from an early meeting, according to an attendee who spoke on condition of anonymity, was that officials should prepare for a change in direction.

Parse that carefully. It’s one of the most intriguing paragraphs of the entire story, and it calls into question the administration’s claim — which it is currently defending in the US District Court for the District of Columbia — that the Boundary Waters reversal was made merely to correct an error in Solicitor Tompkins’ 2016 M-Opinion.

Read more about the Boundary Waters reversal here.

Bernhardt, Biodiversity, and the Boundary Waters

At a hearing yesterday of the House Appropriations Committee, Representative Betty McCollum asked newly confirmed Secretary of the Interior David Bernhardt —again — for documents regarding the decisions and actions taken on the Boundary Waters. Bernhardt was politely evasive, but made it clear that Interior is more likely to comply with the mining company’s plans than with Congressional demands.

The full exchange is cued up here:

A few notes.

We should take a moment to appreciate that Representative McCollum used some of her time to talk about the recent report from the UN Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES). This global assessment brought alarming news. McCollum started by asking whether it was being taken seriously at Interior, and how Interior could possibly continue to advance Trump’s “energy dominance” agenda in light of the report’s findings:

The UN Report also stated that the health of the ecosystems that we and other species depend on is deteriorating more rapidly than ever. We are eroding the very foundations of our economies, our livelihoods, food security, health and quality of life worldwide. Around one million plant and animal species are now threatened with extinction, many within decades, more than ever before in human history.

So, Mr. Secretary, like the Fourth National Climate Assessment, this information is very sobering, and I believe it’s a call for action. So with the release of this information will the Department of Interior take a pause in its approach to energy development, to reexamine the impacts of these operations on ecosystems, species, and habitats, to see if there are better approaches?

Without waiting for a reply, McCollum continued:

The report also states that the abundance of native species in most land — major land based habitats has declined by 20 percent. And so I want to know how the Department is going to work to sustain native plants on public lands, and …the last thing that I’ll mention that the report highlights is the impact of greenhouse gas emissions on nature. With those impacts projected to increase over the coming decades. So I believe, and I believe many Americans would agree with me, that we can’t continue a business as usual approach. So how’s the Department going to incorporate this science into your everyday operations and long range planning? In other words, what are you doing to make sure the United States is a leader, and not a contributor, in the eroding of the foundations of our economies, our livelihoods, and the health and quality of life not only here in America but worldwide?

These remarks set the tone and context for the whole hearing, and for the brief exchange over the Boundary Waters. “The UN Report is on a lot more than just on climate change,” McCollum reminds Bernhardt at the beginning of the clip I’ve included above, “it’s also about pollution, mining, and land use.”

Indeed, the IPBES report notes that mining has “increased dramatically” in recent decades, and that it has already had “significant negative impacts on biodiversity, emissions of highly toxic pollutants, water quality and water distribution, and human health.” It adds that mining has had “strong negative effects on soil, freshwater and marine water quality and the global atmosphere.” As currently practiced, mining even jeopardizes responsible stewardship, as it has frequently led to “indigenous peoples or local communities [being] expelled from or threatened upon their lands.” In light of all this, the report recommends, among other things, “guiding and limiting the expansion of unsustainable agriculture and mining” to protect water and wetlands, which are under more pressure from human activity than ever before.

A thoughtful approach, but Bernhardt’s response was not even remotely satisfactory. He made some noises about how much he respected and appreciated McCollum’s question, but he was careful not to commit to handing over the requested documents. He left himself lots of wiggle room, basically claiming deliberative process privilege. Given his refusal, it was somewhat gratifying to hear that one of the documents I obtained through FOIA — an email to David Bernhardt on October 3rd, 2017, about a briefing on the Boundary Waters — was helpful to McCollum; but it was also frustrating to watch Bernhardt stonewall a Congressional committee.

Like Secretary of Agriculture Sonny Perdue, Bernhardt assured Representative McCollum in the most earnest tones he could muster that once the mining permit process is underway, he’ll be open to public comment. By then, of course, it will be way too late. “There’s lots of opportunity for comment, review. There’s no way we’re going to approve something that’s destructive to the Boundary Waters. But there are processes we go through to analyze that.” This would be reassuring were it not for the fact that those “processes to analyze” had already been set in place — with the finding by US Forest Service Chief Tom Tidwell that sulfide mining posed an “unacceptable risk” to the Boundary Waters; with the issuing of Solicitor Tompkins’ M-Opinion; and with the mineral withdrawal study in Superior National Forest — and Bernhardt, Perdue, and other Trump political appointees abruptly cancelled and reversed all of them.

Why? We don’t know. They refuse to say.

If you listen closely to Bernhardt, his true position becomes clear. “If the applicant” — namely, Antofagasta Plc — “were to go forward, there are lots of opportunities for comment and review.” He’s leaving all discretion to the mining company. He refuses to grapple with the fact that reversals of Obama era protections — the reinstatement of the mineral leases — were unlawful, as McCollum points out here.

We know from the documents we have that Interior basically followed the mining company’s lead, and worked closely and behind closed doors with mining company lobbyists, in making this unlawful reversal. What else is Bernhardt holding back from the public?

Update, 15 May 2019. At today’s hearing of the House Natural Resources Committee, Representative Alan Lowenthal again pressed Bernhardt on the Boundary Waters leases, and asked about the Briefing Memo and the Withdrawal Options document identified in the email correspondence I obtained through FOIA.

At the end of last week, the Committee received thousands of pages in response to their request for documents. This document dump consisted mostly of duplicates and materials that had already been made public through FOIA, and some pages were filled with garbage characters — what Lowenthal called “jibberish.” The Briefing Memo and the Withdrawal Options documents were included, but fully redacted, as they are in the documents I received.

The whole exchange is here.

Bernhardt was non-committal and evasive, as before. But today he had an ace up his sleeve. Toward the end of the hearing, the Bureau of Land Management announced that it had renewed Antofagasta’s copper-nickel mining leases near the Boundary Waters. This is an important step forward for the Twin Metals project.

Read more about the Boundary Waters reversal here.

A Note on the Jorjani Confirmation Hearing

The way Interior has acted under the Trump administration is the textbook definition of a political cartel, using state resources to help the special interests. And it sure looks to me like Mr. Jorjani has been a key member of the cartel.
-Senator Ron Wyden

Jorjani_ConfirmationWhen asked by Senator Manchin whether he could set aside political allegiances and provide “forthright legal analysis,” Daniel Jorjani offered assurances, but his confirmation hearing on Thursday kept circling back to the question.

Senator Cantwell said she was “trying to get an understanding of your commitment to what is the law and whether you will help follow the law. That’s the key thing I’m after.” Senator Wyden wanted the other nominee in the room, Mark Greenblatt, to give him written specifics about how as Inspector General at Interior he would maintain his independence, “and keep these political appointments”  — people “like Mr. Jorjani,” he added — “from interfering with protecting the public.”  Senator King wanted to know whether Jorjani has had any contact with people associated with Freedom Partners or the Koch Brothers since taking his post at Interior. Jorjani was not prepared to say he had not, and at the end of the hearing promised to go back and check.

When her turn came, Senator Hirono said it was “hard to believe” that Jorjani’s work for the Koch Brothers between 2009 and 2017 “does not influence [his] opinions.” She cited his M-Opinion on “incidental take,” according to which oil companies that inadvertently kill migratory birds (in a spill, for instance) will no longer face penalties or prosecution. Hirono wanted to know why Jorjani issued that opinion.

Hirono: A lot of these challenges under this law have come from, have been lawsuits involving the oil and gas industry. So who benefits most from your opinion that totally stopped prosecutions for incidental take under this law? What industry most benefits from your opinion?

Jorjani: I’m not aware of any particular industry that benefits from this. I’d like to think that he American people benefit from a restrained approach.

Hirono: Yeah, I’d like to think so too. But you cannot escape the conclusion that the people you used to work for before, the Koch Brothers, this is one of their biggest issues that they wanted to have done away with….. I would say the oil and gas industries are the biggest beneficiaries.

Senator Manchin summed up what appeared to be the skeptics’ view:

as Acting [Deputy Solicitor General] you came in and overturned 7 of the 8 [Tompkins] opinions….Those things were basically approved as the previous administration was outgoing. We found also these had been exhaustively studied and Ms. Tompkins was well regarded and following the rule of law. And in all honesty the observance I have is that basically that your political ideology overtook…the rule of law.

For his part, Jorjani made the striking claim that a directive from the president’s Chief of Staff authorized him “to review every regulation and every opinion,” including previous M-Opinions by his predecessor, Solicitor Hillary Tompkins.

The directive in question appears to be the Memorandum for the Heads of Executive Departments and Agencies issued by Reince Priebus on January 20, 2017, which put in place a Regulatory Freeze, affording Trump’s political appointees “the opportunity to review any new or pending regulations” and specifically any “questions of fact, law, and policy they raise.”

This is the first time I have heard anyone at Interior publicly and directly connect the overturning of Tompkins’ M-Opinions with this directive. Jorjani seems to have read it expansively, virtually as carte blanche.  He called it the “catalyst” for his multiple reversals of Tompkins. It now has a place on the Twin Metals timeline.

Read more about the Boundary Waters reversal here.

What Is Sonny Perdue Hiding?

Why did Secretary of Agriculture Sonny Perdue abruptly cancel the planned two-year mineral withdrawal study in Superior National Forest? Why has he so far failed, or refused, to turn over findings from the first twenty months of that study, despite repeated requests from congressional leaders? If, as Perdue claims, the study “did not reveal new scientific information,” what’s there to hide?

The administrative record is being deliberately kept from us, it seems. Congress has yet to see the documents and analysis the Secretary of Agriculture is supposed to have consulted before issuing his decision to clear the way for copper mining on the edge of the Boundary Waters. The American public has no assurance that Perdue or the Trump administration “acted in good faith,” as the editors of the Star Tribune put it over the weekend, or even, I would add, in compliance with administrative law. As things stand, “disturbing questions remain about whether [an] industry-friendly outcome was driven by science or politics. If there’s nothing to hide, there should be no delays in providing this information to the public.”

At a hearing of the House Appropriations Committee on Tuesday, April 9th, Representative Betty McCollum asked the Secretary of Agriculture to address some of those concerns. (The video is cued to the start of McCollum’s question time.)

Some highlights.

Back in May of 2017, Secretary Perdue had reassured McCollum and an Interior subcommittee that he would “absolutely” allow the planned two-year study to go forward. But his words, McCollum says, have been “completely belied by [his] actions.”

You failed to live up to your words when you announced in September the abrupt cancellation of the mineral withdrawal study. Twenty months into a twenty-four month study review. Twenty months of collecting public input. Twenty months of science-based assessment. And all you released was a one-page press release. And that’s completely inadequate. We still have not seen any of the science behind the science-based decision. I have sent multiple letters, first in November and then again on March 1st, along with the Chair of the Natural Resources Committee, asking your agency to release the relevant documentation from the twenty-month review. Your own press release said the review included …”a mineral resource report, a biological and economic impact assessment, potential impacts to water resources, wilderness areas, and cultural resources.” Secretary Perdue, were all those reports completed as part of the environmental assessment?

Perdue: I can’t answer that question directly, Ma’am.

McCollum: So if you don’t have complete scientific reports to review before making your decision to cancel the withdrawal, one has to ask what your decision was based on. Do you have any idea what your decision was based on, sir?

Perdue says he does have an idea, but in the exchange that follows, he manages only a jumbled statement.

When I learned that Minnesota really has the last vote on this as a state government, and where the governor had determined already that he was not going to allow this to go forward, it made no sense to me to proceed to — certainly, there’s been not one permit issued, there will not be one permit issued until it’s a complete environmental impact statement and study, based on that, and it looked to me it would be duplicative after I realized that, after my statement to you in May of 17 at my first hearing, and therefore the state of Minnesota has the last vote on this, and I would expect them to do what the citizens of Minnesota would decide.

If I may venture a paraphrase: the Secretary of Agriculture cancelled the scientific study of mineral withdrawal, because — try to follow the reasoning here — once Superior National Forest is no longer subject to withdrawal, and the permitting process for new mining can get underway in earnest, there will be environmental impact assessments done. Those assessments will involve science, or “study.” Why finish the two-year study to determine whether any mining should be done at all, when we’re just going to do more scientific study later, in order to issue mining permits? And since the governor and the people of Minnesota seem to be against the whole thing anyway, science is irrelevant.

This is arrant nonsense, and shows an utter disregard for administrative procedure and a lack of preparation that borders on contempt of Congress. Still, it might help settle the question whether Perdue’s decision was driven by “science or politics.” Secretary Perdue seems not even to understand the role scientific study plays in the Forest Service’s disposition of public lands, or he just doesn’t care. Consider his attitude toward scientific study in the press release he issued back in September of 2018. There, Perdue boasted that by cancelling the two-year study he had removed a “major obstacle,” a “roadblock,” to mineral leasing on the edge of the Boundary Waters. Now, “interested companies may seek to lease minerals in the watershed.”

McCollum was not satisfied with any of this — why should she be? — and she reminded Perdue that his actions have already had serious consequences.

Well, sir, I respectfully disagree with your analysis of this. Once the Forest Service didn’t go forward on the study, BLM started moving forward on lease renewal. Once the study wasn’t completed and I asked for all the information on it, taxpayers paid for it, I have not received it. So sir, I feel that the Forest Service did not fulfill its congressional obligation by moving forward with the full two-year study, and the watershed that the Boundary Waters is in, all water’s precious, but it makes no sense to me at all that the Forest Service abandoned its due diligence research… Your stopping the study started a rollercoaster of events that will lead, possibly, to the destruction of these pristine waters.

McCollum has once again raised the alarm. Where are the whistleblowers?

Read more posts about the Boundary Waters reversal here.