Category Archives: Business and Society

The Supreme Court is going to do what, exactly? Another update on MCRC v. EPA

It turns out Marquette County Road Commission v. EPA, the mining haul route case I’ve followed for a few years, is not dead yet. Back in June, the Sixth Circuit denied a petition for an en banc hearing. That seemed the end of it. Now, a TV6 report says that the Pacific Legal Foundation’s Mark Miller is talking — once again — about Supreme Court review.

A Petition for a Writ of Certiorari was filed on October 25th. A response is due on November 28th.*

Maybe Miller knows something about the composition of the court post-Kavanaugh I don’t. The Sixth Circuit firmly rejected his argument — that the EPA’s objections to the Marquette County Road Commission’s plan for County Road 595 were tantamount to a “veto.” Now, he believes

the U.S. Supreme Court will read our petition, review our case on the merits, ultimately, and agree with us that the road commission’s plan as approved by the state should at least be considered by a judge as compared to the EPAs decision to reject that plan.

If I follow what Miller’s saying here, the Supreme Court is going to review a case that was denied an en banc hearing at the Sixth Circuit, and then recommend that a judge — what judge? an administrative law judge? in what court?  — consider the Road Commission’s plan and weigh it against the objections of the EPA. I think I got that right.

Jim Iwanicki, Marquette County Road Commissioner, has another set of expectations:

the purpose of the lawsuit is to have the U.S. Supreme Court review the decision of the Michigan Appeals Court to side with the EPA and to get an explanation as to why the the EPA turned down the permit in the first place….Iwanicki says he wants answers on the EPA’s decision. He says the road commission was not given a solid answer on why the EPA ruled against the road’s construction.

The construction of 595 would have gone through undeveloped wetlands.

“There is no mechanism right now to build 595,” said Iwanicki. “Right now it is more of the issue of, were we treated fairly and was the permit looked at properly. If not then those people that didn’t look at it properly should be addressed and called forward on the carpet.”

I wonder if these are actual expectations, or if Miller and Iwaniki — and StandU.P., the dark money 501c4 behind the push for CR 595 — are rabble rousing.

*Update: on November 21st, Solicitor General Noel Francisco requested, and the Supreme Court granted, an extension to December 28th to file a response. The reason given: “the heavy press of earlier assigned cases to the attorneys handling this matter.”

Second Update, 4 December: Two amicus curiae briefs were filed on November 28th in support of the Marquette County Road Commission by the Southeastern Legal Foundation and the Mackinac Center for Public Policy and the County Road Association of Michigan and Stand U.P., the 501c4 dark money organization promoting CR595. Both briefs take their cue from the argument that failed in the Sixth Circuit, asserting that the question before the court involves an “arbitrary and capricious EPA veto.”

Arendt on Enlightened Self-Interest

From the essay “On Violence” in Crises of the Republic (1972):

Nothing, unfortunately, has so constantly been refuted by reality as the credo of “enlightened self-interest,” in its literal version as well as in its more sophisticated Marxian variant. Some experience plus a little reflection teach, on the contrary, that it goes against the very nature of self-interest to be enlightened. To take as an example from everyday life the current interest conflict between tenant and landlord: enlightened interest would focus on a building fit for human habitation, but this interest is quite different from, and in most cases opposed to, the landlord’s self-interest in high profit and the tenant’s in low rent. The common answer of an arbiter, supposedly the spokesman of “enlightenment,” namely, that in the long run the interest of the building is the true interest of both landlord and tenant, leaves out of account the time factor, which is of paramount importance for all concerned. Self-interest is interested in the self, and the self dies or moves out or sells the house; because of its changing condition, that self cannot reckon in terms of long-range interest, i.e., the interest of a world that survives its inhabitants…. Self-interest, when asked to yield to true interest — that is, the interest of the world as distinguished from the self — will always reply, Near is my shirt, but nearer is my skin. That may not be particularly reasonable, but it is quite realistic; it is the not very noble but adequate response to the time discrepancy between men’s private lives and the altogether different life expectancy of the public world. To expect people, who have not the slightest notion of what the res publica, the public thing, is, to behave nonviolently and argue rationally in matters of interest is neither realistic nor reasonable.

Sonny Perdue “Broke His Word” on the Boundary Waters

Representative Betty McCollum said last week that Secretary of Agriculture Sonny Perdue had broken his word and betrayed his responsibility to care for public lands.

She made these remarks in response to Perdue’s cancellation of the two-year environmental review of the mining withdrawal of Forest Service lands adjacent to the Boundary Waters.

McCollum called out this exchange with Perdue on May 25, 2017.


(A transcript of the exchange may be found here).

It’s interesting, and in hindsight it’s perhaps telling, that Perdue answers before US Forest Service Chief Tom Tidwell can. Just about five months earlier, in December of 2016, Tidwell had stated unequivocally that allowing the Twin Metals mine would likely result in acid mine drainage to the Boundary Waters and the surrounding watershed — “an unacceptable risk.” But before Tidwell has a chance to answer — and presumably walk the committee through these findings — his new boss takes it upon himself to respond.

Perdue right away reassures McCollum and other members of the House Appropriations Interior Subcommittee that he and Interior Secretary Ryan Zinke had “already met about this,” and they had agreed that “none of us, I’m not smart enough to know what to do without the facts base and the sound science, and we are absolutely allowing [the study] to proceed.” But despite this pledge, his posturing before the committee (“the buck stops here”), and his invocation of the “Hippocratic oath: first of all, do no harm,”

Secretary Perdue broke his word, bending to political pressure from a foreign mining company and abandoning sound science to give a green light to toxic sulfide-ore mining in the watershed that feeds the BWCA. Like the President he serves, Sec. Perdue’s word cannot be trusted.

McCollum’s statement continues:

The Trump Administration’s abandonment of the Rainy River Watershed mining withdrawal study is a politically-motivated and callous betrayal of their responsibility to care for our public lands. It completely disregards the scientific evidence that sulfide-ore mining in the watershed will cause irreparable harm to the pristine wilderness of the Boundary Waters. The Trump Administration is eliminating sound science from the equation in order to ram through a destructive giveaway to their friends at a foreign-owned mining corporation.

McCollum understood back in 2017 that Perdue was “receiving pressure from the mining industry.” Along with the Department of the Interior, the Executive Office of the President, and members of the House and Senate, the new Secretary of Agriculture was already being lobbied on the Twin Metals mineral leases. Lobbying reports filed by WilmerHale indicate that an inter-agency, full court press was already underway as early as the first quarter of 2017, even earlier than agency calendars or the timeline I have put together from them indicate.

So it’s hard to credit Perdue’s representations to the House committee in May of 2017 that when he and Zinke met to discuss the Twin Metals mineral leases, they agreed that they were not the smartest guys in the room, and they should wait to have all the facts before rushing headlong into any decisions. It now appears their minds were already being made up for them.

Postscript. 15 September 2018. Some notes on the Zinke-Perdue meeting in this Twitter thread.

 

A Second Boundary Waters Reversal, And Its Connection to the First

Last week, Secretary of Agriculture Sonny Perdue announced that the USDA would cut short a Forest Service environmental study of the risks posed by sulfide mining in Superior National Forest, near the Boundary Waters in northern Minnesota. The study, which was launched only at the very end of 2016, “did not reveal new scientific information,” Perdue asserted. Those familiar with Perdue’s efforts to slash funding for research at USDA will not be surprised that the Secretary appeared, on this occasion, to demonstrate little regard for science and the time it takes to do good science.

Perdue offered vague reassurances that we can “protect the integrity of the watershed and contribute to economic growth and stronger communities.” After all, the statement goes on to say, northern Minnesota “has been mined for decades and is known as the ‘Iron Range’ due to its numerous iron mines.” That’s certainly true, and it will probably play to the pride people on the Iron Range take in their heritage; but Perdue never once mentions the kind of mining that is now under consideration — copper and nickel mining, or sulfide mining — and the enormous risks sulfide mining always presents. In fact, his statement does everything possible to sidestep the issue and conflate iron and non-ferrous mining.

The announcement was misleading, and it was all but lost amid the very loud noise created by the Anonymous Op Ed that had come out in the New York Times the day before. It is, however, consequential. Dan Kraker of Minnesota Public Radio rightly characterized Perdue’s announcement as “the Trump administration’s second major reversal of decisions made on mining in the Superior National Forest” — the first being the December 2017 legal memorandum on the renewal of Antofagasta’s mineral leases in Superior National Forest discussed in previous posts.

The two reversals are obviously connected and coordinated. Exactly how might be a little harder to say. We can start to trace their connection as early as 22 August 2017, when Department of Interior Principal Deputy Solicitor Daniel Jorjani holds a meeting with two White House officials. The topic: “Minnesota Project.” Here is the calendar entry for that meeting, which I’ve now added to the Twin Metals timeline:

MinnesotaProject

The apparent purpose of this meeting was to bring the White House, specifically the Office of the General Counsel and the Executive Office of the President, into the loop, or to provide the White House with an update on efforts to reverse this policy of the Obama administration.

The meeting included Michael J. Catanzaro, who was at the time Special Assistant to the President for Domestic Energy and Environmental Policy. He is profiled on DeSmog. His lobbying for oil and gas companies and his work with Senator Jim “Snowball” Inhofe and climate change denial campaigns are detailed there. Catanzaro stepped through DC’s revolving door and returned to his lobbying firm (CGCN Group) in April of this year.

The other White House official in that meeting was Stephen Vaden, who in August of 2017 was serving as Principal Deputy General Counsel at the U.S. Department of Agriculture. Vaden had also been a member of the Trump “beachhead team” at USDA. These teams were sent in to sabotage regulatory agencies and, as Steve Bannon put it, deconstruct the administrative state.

One month after this meeting, in September of 2017, Vaden would be officially nominated to become General Counsel at USDA. Legal staff at USDA did not exactly greet the nomination with enthusiasm. According to Politico, morale “plummeted.” There were concerns about Vaden’s lack of managerial experience, his hostility to unions, and his previous work for the Judicial Education Project on behalf of discriminatory Voter ID laws — which turned out to be the main focus of his 2017 nomination hearing. Vaden is still awaiting full confirmation in the Senate, but he is busy working at USDA and would no doubt have briefed Secretary Perdue on this matter.

So the meeting where these two Boundary Waters reversals connect comes a little more clearly into focus: Jorjani, with his strong ties to the Koch Institute, Catanzaro, an energy lobbyist hostile to science, and Vaden, with sketchy views on labor unions and voting rights, talking about a Chilean conglomerate’s mining leases in Superior National Forest.

Another Look at the Twin Metals Timeline

Rees20170502AntofagastaIn response to a FOIA request I made back in April, the Department of the Interior has released Gareth Rees’ 2017 work calendar. Rees has served as Executive Assistant to the Deputy Secretary of the Department of the Interior since George W. Bush’s first term. He did not arrive with the so-called “beachhead” teams brought in by the current administration with the express mission of sabotaging and dismantling the government agencies entrusted to their care. Still, his calendar (which I’ve put up here, on DocumentCloud) adds more pieces to the puzzle.

Rees’ calendar drew my attention to a couple of meetings I hadn’t noticed before and which are now represented on the timeline. There is a June 15, 2017 meeting at Interior with a group called Jobs for Minnesotans — a front for the building trades that is currently lobbying for both the Twin Metals project near the Boundary waters and the Polymet project to the south, near Hoyt Lakes. Jobs for Minnesotans is a 501c4 “social welfare” or dark money organization of the kind I’ve written about in connection with mining projects in Michigan and Wisconsin. As a 2016 Pro Publica report suggests, these organizations are designed for those who prefer backroom deals to sunlight. 501c4s like Jobs for Minnesotans are used to channel money from private interests into public process, and coordinate localized efforts to remove environmental protections and undo regulation through regional and national networks.

A May 2, 2017 meeting with Antofagasta plc has also been added to the timeline. This meeting brought together representatives of the Chilean conglomerate with a large group of officials at the Department of the Interior just one month after Interior appears to have taken up the matter. Apparently meeting with Antofagasta was a priority. The company’s subsidiaries Twin Metals Minnesota and Franconia Minerals had sued the Department of Interior in February of 2017. The complaint makes the mining companies’ position abundantly clear. And yet administration officials seem to have been anxious to sit down with the Chilean parent company and discuss its leases. Why? (It’s not likely that the same courtesy will be extended to the ten Minnesota plaintiffs now complaining that in reinstating Antofagasta’s leases the Department of Interior exceeded its lawful authority and acted in an arbitrary and capricious way.)

The first meeting with Antofagasta, in early May, appears to have set the agenda; the second meeting with Antofagasta, on July 25th, looks as if it were called to reach an agreement. The July meeting with Antofagasta includes all Interior officials present at the May 2nd meeting as well as some important decision makers: Deputy Solicitor Daniel Jorjani, Acting Director of the Bureau of Land Management Michael Nedd, and Edward Passarelli, Deputy Chief at the Natural Resources Section of the Department of Justice.

It is difficult to avoid the conclusion that the Department of Interior worked steadily and closely behind closed doors with lobbyists and mining executives to renew Antofagasta’s mineral leases in Superior National Forest. This would conform to the general pattern at Interior under Zinke’s leadership. “A deeply problematic culture of secrecy…has taken root in the Department of the Interior,” the organization Earthjustice charges, “keeping the American public in the dark about major decisions, important records, and meetings with industry that affect the lands and resources the agency holds in trust for the American people.”

In this case, the mining company ran a full court press; the public was kept almost entirely out of the process. The deed appears to have been done well before the end of summer 2017. The legal review that would result in the Jorjani Memo of December 22nd appears to have been nothing more than an exercise in a foregone conclusion — a sham.

Demagoguery in Duluth

Earlier this week, in Duluth, Minnesota, Donald Trump stated that the reversal of Obama-era protections for the Boundary Waters promised great things “for our amazing people and miners and workers and for the people of Minnesota.”  Bizarrely, the president went so far as to claim that mining the Duluth Complex would “make it from an environmental standpoint better,” though it’s impossible to say what exactly “it” might refer to here.

He framed these remarks as an announcement, but it’s also difficult to say what, exactly, he was so “proudly announcing.” Those like Daniel Dale who track the president’s speeches have noticed that he tends to present as new and exciting events and initiatives that are long past, or which in fact have failed or run into trouble. This is especially true when it comes to the president’s statements about blue collar jobs, factories, and the economy.

The timeline clearly shows that the Department of Interior started taking meetings with lobbyists and representatives of Antofagasta Plc and Twin Metals in April of 2017, worked closely and steadily with them through the summer and fall, and issued a legal memo favorable to the mining companies in December of that year. Secretary Zinke’s latest action — the reinstatement of Antofagasta’s mining leases in Superior National Forest on May 2, 2018 — was over a year in the making. Almost all of this work was done behind the scenes, without meaningful public participation. Announcements would only have drawn unwelcome attention.

In Duluth, the announcement of “first steps” that were in fact already taken might have been made to pre-empt or drown out the real news of this week: the filing of a Complaint in the US District Court for the District of Columbia by a group of ten Minnesota plaintiffs against the Department of Interior, the Bureau of Land Management, Secretary Ryan Zinke, and BLM’s Brian Steed.  The Complaint charges that the reinstatement of Antofagasta Plc’s mining leases in Superior National Forest “exceeds their authority under law and is arbitrary and capricious” and asks the Court “to enjoin them from further consideration of applications to renew the two leases.”

Filed yesterday, just hours after Trump’s Duluth rally, this Complaint is actual news. It will not get one tenth of the coverage Trump’s bluster receives.

There’s little if anything that’s new and even less of substance here. I include the video because it’s helpful to consider where Trump is clearly reading from prepared remarks (which might indicate some actual administrative policy step) and where he is simply wandering off on his own into vague promises of some “better” future. He did the latter for most of the minute he spent on the subject of Superior National Forest, veering off, at the end, into incoherence.

Here is my transcript of his remarks on the topic:

Under the previous administration, America’s rich natural resources, of which your state has a lot, were put under lock and key, including thousands of acres in Superior National Forest. You know what that is, right? Tonight I’m proudly announcing that we will soon be taking the first steps to rescind the federal withdrawal in Superior National Forest and restore mineral exploration for our amazing people and miners and workers and for the people of Minnesota, one of the great natural reserves of the world. And we’ll do it carefully, and maybe, if it doesn’t pass muster, we won’t do it at all, but it is going to happen I will tell you that. It’s gonna happen. And it’s happening fast. We’ve already taken it as you know a long way down the road. And it’s gonna make things better. It’s gonna make it from an environmental standpoint better. 

Here, as far as I can tell, is the substance of his prepared remarks.

Under the previous administration, America’s rich natural resources were put under lock and key, including thousands of acres in Superior National Forest. We [have taken] the first steps to rescind the federal withdrawal in Superior National Forest and restore mineral exploration [in] one of the great natural reserves of the world. 

The opening jab at Obama, who locked away riches that are rightfully ours, also makes a mockery of the very idea of conservation and environmental protection. But who’s really paying attention? The audience cheers at the mention of Superior National Forest: “you know what that is, right?” Trump clearly does not, but he tries to milk the cheer anyway; it’s a variation on the tired old comedian’s schtick: who here is from Jersey? Anybody? New Jersey!

Superior National Forest is seen here entirely through the lens of extractive industry: a “natural reserve,” a store of minerals. Just as importantly, the statement makes no mention of the risky mining that this will involve — sulfide mining, a kind of mining the amazing people of the Iron Range have never done before, and which has the potential to destroy the very things people in Minnesota prize about Superior National Forest and the nearby Boundary Waters area.

Marshall Helmberger sums it up in a must read article on the new Complaint in The Timberjay :

Former Forest Service Chief Tom Tidwell, in December 2016, issued detailed findings of fact concluding it was likely that acid mine drainage from the Twin Metals mine would contaminate the BWCAW and cause adverse effects on the water quality, fish populations, aquatic ecosystems, and animal species. Tidwell further considered the possibility of containment, mitigation and remediation efforts and found that very few would be compatible with maintaining the BWCAW’s wilderness character.

While it appears that the president’s prepared remarks also included some vague gesture toward environmental responsibility, Trump turns that bit into a meaningless jumble, saying at first that the mineral exploration of the Duluth Complex will only go forward if it passes muster, then assuring the audience that “it is going to happen…It’s gonna happen,” and when it does happen, “it” is going to make “it” better. “It” here can mean anything, or nothing at all: he’s not offering the crowd anything beyond the word “better,” which is pretty much all they came out to hear anyway.

Purdy on Public-Lands Populism

From the closing paragraphs of Jedediah Purdy’s Whose Lands? Which Public?

In its monuments proclamations, the Trump Administration asserts a sweeping power to reclassify fifteen million acres of protected federal land and hundreds of millions of marine acres. The proclamations already issued, which purport to strip more than a million acres of monument status, are redolent of this Administration’s illiberal and procedurally dubious tendencies. They elevate to federal policy the themes and goals of a strand of Western populism that is tainted with outlawry and racism. The proclamations also cater to extractive industries, particularly uranium, oil and gas, and coal, in ways that resonate with the Trump Administration’s relentless mixing of public wealth and private interest–in a phrase, its penchant for corruption….

Corruption is not a novel concern here. For well over a century, the field [of public-lands law] has been shaped by recognition that precipitate and opportunistic privatization is a perennial temptation in a body of law that governs nearly a third of the country’s acreage and a great deal of its natural wealth. The Executive branch’s capacity for rapid, unilateral, and obscure action makes it especially suited to this form of misappropriation. Recognition of these facts is built into public-lands law in the long-standing asymmetric preference for Presidential power to preserve lands over Presidential power to privatize them…. The kind of opportunistic favoritism that the Trump proclamations display is precisely what public-lands law has been structured over centuries to avert. These proclamations are paradigms of why unilateral Presidential reclassification toward privatizing natural resources would be anomalous in public-lands law. A Court would properly consider the anomaly in deciding whether the power to create national monuments should imply the power to unmake them.

In the case of the Trump proclamations, the question of opportunism and favoritism in reclassification decisions interacts with the influence of racially inflected nationalism and localist outlawry on the Administration’s priorities. Here too, as with corruption, these themes are not novel or alien to public-lands law. Extractivism, settler-colonialism, and the priority of property-style resource claims and local control are, in key ways, continuations of the themes that governed the first hundred years of public-lands law. Their constituencies have never left the field. It is partly because of these constituencies’ persistent opposition to preservation agendas that public-lands law has always been inflected by disputes over national identity, from the utilitarian nationalism of Gifford Pinchot and Theodore Roosevelt’s national forests to the national parks’ much-advertised status as the American answer to Europe’s cathedrals to the claim that wilderness preservation would keep the country from becoming a “cage.”

Here too, public-lands law has been shaped by grappling with the themes that the Trump proclamations raise. And here too its shape contains a good part of an answer. The public-lands populists’ claims on behalf of privatizing and extractive policies already have a specific legal expression that is deeply embedded in public-lands law: in long-standing public rights-of-way across the federal lands of the West, in mining and mineral-leasing regimes, in grazing rights, and in the default policy of extensive public recreational access — and, above all, in the private real estate that was substantially created under federal privatization schemes. In other words, these claims do not come from outside public-lands law. They are part of it, and they occupy a specific place in its structure. Where they have been vested, they tend to persist within new regimes that otherwise emphasize preservation over extraction and economic use. On multiple-use lands, they play a prominent part in the statutorily mandated planning process. Where, however, they are not vested but take the form of inchoate expectations of continued access, they yield on categorically protected lands: new privatizing and extractive claims are almost uniformly excluded under preservation regimes. For such claims to get traction again, the lands themselves must be reclassified. That reclassification is generally reserved to Congress. If the Antiquities Act authorizes the President to hand a victory to public-lands populists by reclassifying hotly contested lands, then it is a dramatic anomaly in public-lands law. It would authorize constant perennial and shifting reopening of precisely the disputes that the field exists to structure and resolve, and through a mechanism that is procedurally orthogonal to the rest of the field.

The Trump proclamations raise a novel question for interpretation of one of the most important public-lands statutes. Like much that this Administration does, however, it is not so much new as it is an effort to reopen questions that many of us had hoped were closed. In this case, they should remain closed.

McCollum Questions Zinke on the Boundary Waters Reversal

This morning, Interior Secretary Ryan Zinke appeared before the House Appropriations Committee at a hearing on the FY 2019 Budget.  The video below marks the moment when Minnesota Representative Betty McCollum questioned Secretary Zinke on the Boundary Waters reversal.

It begins with an exchange on Bears Ears and Grand Staircase, in the course of which Zinke says reporting in the New York Times based on U.S. Department of Interior memos is not “credible.” Fake news.

McCollum then moves the discussion to the Boundary Waters reversal. Her main question, which she asks in a few different ways, is whether Deputy Solicitor Jorjani met with any stakeholders other than lobbyists for Twin Metals Minnesota before issuing his reversal memo.

Zinke’s response that this is all part of the public record is at best disingenuous, given that nearly all the information we have to date about the reversal is the result of FOIA requests; and it’s also Trumpian in its post-truthiness, since Zinke just declared a few moments earlier that reporting based on Department of Interior records is not to be trusted.

At any rate, here is the full exchange:

What Scott Pruitt’s Troubles Tell Us About Corruption in Kalorama

It’s tempting to draw parallels between the situation at 2449 Tracy Place NW, where Jared Kushner and Ivanka Trump rent a mansion owned by Chilean mining billionaire Andronico Luksic Craig, and Scott Pruitt’s sweetheart deal to rent a bedroom in a Washington DC condo owned by the wife of powerful lobbyist Steven Hart, chairman of Williams & Jensen, for fifty dollars a night. But that will not get us very far, and it’s best not to conflate the two cases.

To begin with, Jared and Ivanka are reportedly paying market rate for their place: $15,000 / month. While no one, to my knowledge, has seen records of those monthly payments in the form of cancelled checks or electronic transfer receipts, it seems pretty safe to assume that rent is actually being collected. Doesn’t it? The corporation that owns the property, Tracy DC Real Estate, Inc., was formed by Luksic’s lawyers at Duane Morris LLP in Boston, and the deal was put together by one of the Washington DC’s “top-producing” real estate agents: Cynthia Howar, who is herself a member of the bar. The lawyers, one would like to think, took care of the details.

Not so in Scott Pruitt’s case. Despite the friendly terms, Pruitt fell behind on his rental payments, according to Politico, “forcing his lobbyist landlord to pester him for payment.” Pruitt’s landlord, Vicki Hart, did not have the appropriate business license to rent out a room in her Washington, DC condo, and now faces fines of up to $2000.

In Kalorama, Tracy DC Real Estate, Inc. had obtained the business license for a one family rental from the Department of Consumer and Regulatory Affairs in the District of Columbia by March of 2017. That license is good for two years, until February 28, 2019. Who can say where the first family tenants will be by then?

Of course, there is one important parallel to draw between the Pruitt case and the situation at Tracy Place. It doesn’t have to do with licenses or rental agreements or payments. It has to do with ethics — or an apparent lack of concern with ethics.

Scott Pruitt rushed an ethics review of his bedroom rental only after news stories about the deal started to appear. The review was botched, or its conclusions were forced; it’s unclear which. The EPA’s top ethics official now says he needs to revisit the matter, because he was not in full possession of the facts when he retroactively approved the arrangement. This only serves to highlight that the right time for Scott Pruitt to ask whether the rental was permissible or appropriate was before entering into it.

Much the same could be said of Jared and Ivanka’s rental of the Kalorama mansion: the lawyers may have left nothing undone, but there is still the question whether this rental agreement ought to have been struck in the first place, given the fact that the mansion’s owner — or the mining conglomerate his family controls — was suing the U.S. government over the renewal of mining leases.

Twin Metals Minnesota had already sued the United States government back in September of 2016 over lack of action on the Superior National Forest leases. When the Obama administration did act in December of 2016, denying renewal of the leases, and launching a study of a 20-year ban on sulfide mining near the Boundary Waters, it was clear Twin Metals would sue again.

This second suit was filed by Antofagasta’s subsidiaries, Twin Metals Minnesota and Franconia Minerals, on February 21, 2017, just about a week before Tracy DC Real Estate obtained its license to rent the Kalorama mansion as a one family unit. A review of the rental agreement should obviously have been undertaken by the Office of the White House Counsel, with these and other facts in view, if only to preempt scandal-mongering and dispel any appearance of impropriety.

One of the earliest reports of the rental agreement in the Wall Street Journal quotes Rob Walker, a lawyer in private practice who specializes in election law and government ethics, to the effect that “there might not be an ethics problem” as long as the mansion is being rented at fair market value. Maybe not. But I’ve been unable to find any indication that a formal ethics review of the Kalorama rental agreement was ever requested or conducted.

Twin Metals At Interior – A Timeline

March 8, 2016 Department of Interior Solicitor Hilary Tompkins issues an ‘M Opinion’ providing the Forest Service and Bureau of Land Management discretion to grant or deny Twin Metals Minnesota lease renewal application.
July 1, 2016 Seth P. Waxman of Wilmer Hale writes to Solicitor Tompkins on behalf of Twin Metals, arguing that her Opinion was arrived at erroneously and should be withdrawn.
December 15, 2016 After the Forest Service notifies the Bureau of Land Management that it does not consent to the renewal of Twin Metals mineral leases in Superior National Forest, the Obama administration releases Memo M-37036, denying renewal of Twin Metals leases. Tracy DC Real Estate, Inc. formed in DC by Luksic’s lawyers.
December 22, 2016 Tracy DC Real Estate Inc. purchases the Kalorama Triangle mansion at 2449 Tracy Pl NW. [For this part of the story, see this post.]
January 3, 2017 First news reports that Ivanka Trump and Jared Kushner are moving into the Kalorama mansion.
January 4, 2017 Official sale date entered for the Kalorama mansion.
February 7, 2017 Michael Nedd of the Bureau of Land Management forwards a briefing paper “previously used to brief the DOI leadership” to staff; cc: Karen Hawbecker and Aaron G. Moody in the office of the Solicitor; “as discussed, we would appreciate you all working together to come up with an updated BP with respect to Withdrawal options.”
February 9, 2017 email, Karen Hawbecker to Jack Haugrud, includes a “briefing paper to introduce the topic of the Twin Metals litigation to the SOL transition team.”
A paper prepared by Elena Fink of the Bureau of Land Management “options for addressing the withdrawal in Superior National Forest” begins to circulate: forwarded by Karen Mouritsen to Karen Hawbecker. Another email from Aaron G. Moody to Jack Haugrud recommends that Interior “work off of” the BLM paper.
February 21, 2017 Antofagasta subsidiaries Twin Metals Minnesota and Franconia Minerals sue the United States Department of Interior over the withdrawal.
February 22, 2017 A “fire drill”: the Assistant Secretary for Land and Minerals Management has asked the Bureau of Land Management “for a brief ‘nutshell’ on the Twin Metals/Superior National Forest matter that can be given to the soon-to-be-confirmed Secretary [Ryan Zinke].” The paper will be included in Zinke’s briefing book.
February 28, 2017 Tracy DC Real Estate obtains business license for the rental at 2449 Tracy Pl. NW. The license expires in 2019.
March 7, 2017 Associate Deputy Secretary of the Department of Interior Jim Cason meets with Acting Director of the Bureau of Land Management Kristin Bail “and one of the issues they will discuss is the Superior NF withdrawal,” according to a March 6, 2017 email from BLM’s Bev Winston to DOI’s Karen Hawbecker. Winston asks specifically whether Hawbecker’s staff has “prepared anything on BLM’s options with regard to stopping the withdrawal process?”
April 6, 2017 Kathleen Benedetto: Ext. Meeting Boundary Waters [with?].
April 18, 2017 Benedetto: Ext. Mtg. Twin Metals [with? Cf. Friday 16 June].
April 19, 2017 Benedetto: Twin Metals. On the calendar of Karen Hawbecker, Associate Solicitor, Dept. of Interior.
April 21, 2017 email from Karen Hawbecker to Jack Haugrud: Twin Metals “options” paper requesting feedback, “to make sure you’re ok with the approach we’ve taken.”
April 24, 2017 On the calendar of Katharine MacGregor, Principal Deputy Assistant Secretary for Land and Minerals Management. Meeting with Timothy G. Martin of Wilmer Hale, on behalf of Twin Metals Minnesota. MacGregor has a call with Jorjani scheduled immediately after this meeting.
April 26, 2017 On the calendar of Interior Secretary Ryan Zinke: meeting with Landon Zinda, legislative council for Representative Tom Emmer (R-MN, 6th District) and Will Mitchell, Legislative Director for Representative Rick Nolan (DFL-MN, 6th District). A briefing by Kathy Benedetto and Kate MacGregor of the Department of Interior on the Twin Metals Leases.
April 28, 2017 Benedetto Meeting with Rob Lehman, WilmerHale re: Twin Metals Minnesota. On the calendar of Gareth Rees, Executive Assistant at US Department of the Interior. There is also an entry for the same 11AM meeting with Lehman on the Deputy Secretary Conference Room calendar. Created by Deputy Secretary Catherine Gulac.
April 28 2017 Benedetto: Twin Metals briefing. On the calendar of Briana Collier. U.S. Department of the Interior, Office of the Solicitor. An email from Karen Hawbecker to Jack Haugrud on April 27 specifies the purpose of this meeting: “to get some feedback from [Benedetto] on the options we’ve identified for reversing action on the Twin Metals decision.”
May 2, 2017 On the calendar of Gareth Rees: Meeting with Antofagasta plc re: Twin Metals Minnesota Project. Included in this meeting: Gareth Rees, James Cason, Katharine MacGregor, Michael Anderson, Kathleen Benedetto, [Linda Thurn], Richard Cardinale, Tracie Lassiter, Kevin Haugrud, Mariagrazia Caminiti, Karen Hawbecker. According to internal email correspondence on April 28, 2017, the Antofagasta delegation includes: Ivan Arriagada, CEO, Antofagasta plc; Daniel Altikes, Executive Director, Antofagasta plc; Rob Lehman, Chair of the WilmerHale Public Policy Practice; Andy Spielman, Chair of the WilmerHale Energy and Natural Resources Practice. An April 28th email from Karen Hawbecker to Lisa Russell at the Environmental Resources Division of DOJ indicates “this same group [from Antofagasta] may also have a meeting at the White House.”
May 3, 2017 Benedetto: Meet and Greet with Representatives of Save the Boundary Waters.
May 4, 2017 On the calendar of Ryan Zinke: In-person meeting with Secretary of Agriculture Sonny Perdue. Perdue will refer to this meeting in his 25 May appearance before the House Appropriations Interior Subcommittee..
May 10, 2017 On the calendar of Sonny Perdue: phone call with Senator Al Franken to “fill him in on a mineral leasing issue in the Boundary Waters.”
May 25, 2017 Agriculture Secretary Sonny Perdue appears before the House Appropriations Interior Subcommittee.
May 26, 2017 Principal Deputy Solicitor Daniel Jorjani call with Rachel Jacobson of WilmerHale, regarding a “DC Bar Event.”
June 1, 2017 email, Karen Hawbecker to Jack Haugrud: The White House “has expressed interest in the Twin Metals matter and Doug Domenich [sic] wants to talk to the WH today.” Kathleen Benedetto drafts a memo for Domenech on the Twin Metals Project.
June 9, 2017 Benedetto: Chat w/Timothy Martin from WilmerHale, re: Twin Metals – Minnesota. On the calendar of Katharine MacGregor, Deputy Assistant Secretary for Land and Minerals Management.
June 14, 2017 Daniel Jorjani meets with Raya Treiser and Andy Spielman of WilmerHale.
June 15, 2017 On the calendar of Gareth Rees: meeting with Jobs for Minnesotans.
June 16, 2017 Benedetto Ext. Mtg. Twin Metals – Bob McFarlin [at that time, Vice President of Public and Government Affairs, Twin Metals Minnesota].
June 19, 2017 Meeting w/ USDA and DOI on Twin Metals Superior National Forest. On the calendar of Katharine MacGregor.
July 11, 2017 Call between Secretary of the Interior Ryan Zinke and Minnesota Governor Mark Dayton. Also attending: Jennie Maes, Assistant Chief of Staff to Governor Dayton. Topic: Boundary Waters Canoe Area Wilderness and nearby copper-nickel mining.
July 25, 2017 All Hands on Deck for meeting with Antofagasta Plc re: Twin Metals Minnesota Project. On the calendar of Gareth Rees. Included: Kevin Haugrud, Katharine MacGregor, Michael Anderson, Karen Hawbecker, Kathleen Benedetto, James Cason, Gareth Rees, Linda Thurn, Richard Cardinale, Tracie Lassiter, Mariagrazia Caminiti, Edward Passarelli, Michael Nedd, Daniel Jorjani.
August 6, 2017 Karen Hawbecker forwards a briefing paper “about the Twin Metals litigation in preparation for a meeting” with Deputy Secretary of the Interior David Bernhardt.
August 9, 2017 Katharine MacGregor: meeting with Chad Horrell, Sportsmen for the Boundary Waters.
August 22, 2017 Daniel Jorjani meeting on “Minnesota Project” with Michael J. Catanzaro, (White House, Executive Office of the President), Stephen Vaden (White House, Office of the General Counsel).
September 7, 2017 Internal meeting at Department of Interior on Twin Metals: Daniel Jorjani with Jack Haugrud.
September 21, 2017 Phone call: Twin Metals. On the calendar of James Cason, Associate Deputy Secretary of the Interior. James Cason with Associate Solicitor John Hay; Associate Solicitor, Division of Indian Affairs Eric Shepard; Deputy Secretary Catherine Gulac; Associate Solicitor Karen Hawbecker.
October 4, 2017 Deputy Secretary of the Interior David Bernhardt briefed on Twin Metals.
December 22, 2017 Principal Deputy Solicitor Jordan releases Memo M-37049, allowing Twin Metals to renew its leases of Superior National Forest lands.
3:17PM email from Jack Haugrud to Solicitor’s office: “Just got a call from Raya [B. Treiser] at Wilmer[Hale]. Twin Metals is moving today to dismiss their case against us.”

How this timeline came about:

Back in March of 2018, reporting by Jimmy Tobias gave us a little more insight into the Boundary Waters reversal. (My posts on the topic are collected here.) Through a records request, Tobias obtained the calendar of Kathleen Benedetto, Special Assistant to Interior Secretary Ryan Zinke.

Described as “a fixer for the mining companies,” Benedetto now helps oversee the Bureau of Land Management. She has publicly taken the position that conservation of public lands is a barrier to “progress.”

The Benedetto calendar gave us a much fuller chronology and more detail than we previously had. Tobias identified at least six meetings or communications with mining interests on Benedetto’s calendar regarding the Twin Metals project in Superior National Forest, including the July 25th all-hands-on-deck meeting between high-ranking Interior officials and representatives of Antofagasta Plc. I subsequently learned that the group had met with Antofagasta earlier, on May 2nd, less than a month after Benedetto started meeting with mining company representatives.

When I put Benedetto’s calendar together with the Deputy Solicitor Daniel Jorjani’s calendar, this timeline started to come into focus. Since then, I have been able to consult other calendars and received some materials in response to two FOIA requests. It is now clear that Interior was holding internal meetings about Twin Metals and the withdrawal of Superior National Forest lands in the first weeks of the new administration, and as early as February of 2017.

So there were many meetings about the Twin Metals project before Benedetto hosted a “meet and greet” with a Boundary Waters conservation group on May 3rd, 2017; and it looks as if the reversal was a done deal by the time Katharine MacGregor met with Sportsmen for the Boundary Waters’ Chad Horrell on August 9th.

At the very least, this timeline indicates that restoring Twin Metals “right of renewal” for their mineral leases in Superior National Forest was a priority at Interior from the moment the Trump administration took office.

The lobbying effort was a full court press, led by Raya Treiser, Rob Lehman, and Andy Spielman of WilmerHale. Litigation counsel for Chilean conglomerate Antofagasta plc — Daniel Volchok, Michael Hazel, and Paul Wolfson — are also from WilmerHale.

Note: I’ll continue to make updates to this timeline as DOI releases more materials in response to FOIA requests.