Category Archives: Business and Society

1913 Massacre — October Broadcast and November Streaming

1913 Massacre, the documentary film I made with Ken Ross about the Italian Hall disaster, will air on WNMU-TV (Marquette, Michigan) at 9PM on Friday, October 30, as part of the Beaumier Heritage Documentary Series.

Then, for the whole month of November, everyone can stream the film from the WNMU-TV site. The film will also be available through the PBS Passport app.

The WNMU site links to this 2013 review by Bill Meyer in People’s World.

Seamless editing, engrossing interviews and a stirring well-integrated music soundtrack make the film flow like long lost friends catching up on history. Arlo makes the point early on that it was folk songs where people learned about working class history, such as this tragic event, that may have been forgotten to the world otherwise. This movie could be called a “folk movie” as it tells the story in the same dramatic and powerful manner. It joins the ranks of great progressive movies based on famous songs, that include Strange Fruit, about the song about lynchings written by Abel Meeropol and made famous by Billie Holliday, Alice’s Restaurant based on Arlo’s famous song, and Bill Moyer’s Amazing Grace, a probing study of the history of the classic hymn.

After the WNMU run, Ken and I plan to arrange online streaming through Vimeo and possibly Amazon Prime.

New Citigroup CEO Has Strong Ties to Chile’s Luksic Group

Goodbye to all that? With Andronico Luksic Craig looking on, Jane Fraser makes her exit from the May 2019 press event marking the repayment of the Banco de Chile’s subordinated debt.

Jane Fraser, who was named last week to succeed Michael Corbat as CEO of Citigroup, has longstanding business ties to one of Chile’s most powerful business conglomerates, the Luksic Group.

Antofagasta Plc, the company with plans to mine copper and nickel on the edge of the Boundary Waters, is among the conglomerate’s principal holdings — which is why I thought it would be instructive to start looking at the Fraser-Luksic connection as Citigroup prepares for its leadership transition.

It’s unclear just how much exposure Fraser has had to the mining side of the sprawling Luksic business empire. Citibank’s dealings with the Luksic Group over the years appear to be primarily through Quiñenco SA, the financial holding company through which the group controls its investments. It is clear, however, that Fraser enjoys a fairly close business relationship with Andronico Luksic Craig.

Fraser’s relationship with Andronico Luksic Craig and the Luksic Group developed as she came up through Citigroup’s Latin American leadership ranks. After a four-year stint from 2009-2013 as CEO of Citi Private Bank, which serves the bank’s wealthiest customers, the Luksic family possibly among them, Fraser was CEO of Citigroup Latin America from 2015-2018. During that period, she also served as Vice-Chairman of the Board of Banco de Chile, co-chair with Andronico Luksic Craig.

The role came with the job. In 2007, Citigroup and Luksic-controlled Quiñenco SA established a partnership that gave Citi a 32.9 percent stake in LQ Inversiones Financieras, the Quiñenco subsidiary that has held a controlling stake in Banco de Chile since 2002. (This was, not coincidentally, the year Andronico Luksic Abaroa handed the reins to his sons Andronico and Guillermo.) The Luksic Group grew rapidly after its move into banking, growing in value from $1.9 billion to $15.6 billion over a ten year period, according to a 2017 London Mining Network report, and “profits were increasingly linked to financial capital and speculation.” Citi took part in that spectacular growth, and in 2010 increased its stake in LQIF to 50 percent.

The partnership with Citigroup also helped the bank through the final stages of its recovery from the financial crises of 1982-3, culminating in the repayment of the bank’s subordinated debt in May of 2019. A “dark chapter” of the Pinochet period had come to a close, thirty years after Pinochet fell from power. The event must have had special significance for Luksic, whose family had decamped to London after the 1973 military coup and only returned to Chilean investment circles with the onset of the financial crisis and recession of the 1980s. Settling the debt of the Banco de Chile must have felt like an act of historical redemption.

In the press conference organized for the occasion, Fraser appeared in the Paseo Ahumada side by side with Luksic and Mario Marcel, the president of Chile’s central bank.

Fraser is now set to become one of Wall Street’s most powerful bankers. Asked to comment on her promotion, Luksic was effusive in his praise, calling Fraser a “pioneering woman” and a “tremendous leader” who will make “an enormous contribution not only to Citigroup, but to the entire financial industry.”

It is still too early to say what, if anything, her move north might mean for Luksic’s business fortunes or the Chilean mining company’s North American ambitions.

An Appeal to the State Department

Earlier this morning I appealed the State Department’s denial of my request for expedited processing on two Freedom of Information Act requests made in the fall of 2018.

As I mentioned in last month’s webinar, even though FOIA specifies that “records shall be made promptly available,” many agencies have a backlog of requests and some requests are deliberately slow-walked.

The State Department does not expect to complete these two 2018 requests until 2022. No reasonable definition of “promptly” contemplates a delay of four years, and, as I argue in my appeal, recent Federal government action — the June 30 Notice of Intent to prepare an Environmental Impact Statement for the Twin Metals project — compels the release of these records. Why? Because in compliance with the National Environmental Policy Act, the Bureau of Land Management plans to take public comment and hold public meetings on Antofagasta’s Minnesota project. The public can’t participate in a meaningful way or make considered judgments when critical facts are withheld.

I posted a copy of my appeal on Twitter.

The appeal’s argument about NEPA, which provides for meaningful public consultation, brings me back to a point I tried to stress in the webinar: what’s at stake here is not only a mining project or economic development in northern Minnesota or the fate of the Boundary Waters, though all of those things are matters of great concern, but also questions of meaningful consultation, citizen participation, and good government.

Both NEPA and the Freedom of Information Act are, or at least could be, conducive to responsible democratic governance. They are designed to make government conform to citizen demand, or at least make government inform, include, and answer to the public.

Charles Tilly puts it neatly: “a regime is democratic to the degree that political relations between the state and its citizens feature broad, equal, protected, mutually binding consultation.” If that is the kind of government we want to have, then those are the political relations we need to create, support, and insist upon. The state isn’t going to do that for us, and the current regime appears to be doing everything it can to frustrate and undermine those relations.

Update 28 Sept 2020. The Office of Information Programs and Services denied this appeal on September 24, saying I did not show a compelling need, and rejecting my argument that due to Federal government action my request meets the threshold of 22 C.F.R. 171.11(f)(2).

Selective Evidence and the Office of the Solicitor

As attorneys at the US Department of Interior drafted a Solicitors’ opinion from a memo written by a mining company lobbyist, they sought historical evidence to support the lobbyist’s claims. Since issuing the opinion in December of 2017, they have kept the evidence they found from being fully disclosed; and they have also failed to account for historical evidence that runs against the finding the mining company wanted.

During last month’s webinar, I mentioned that attorneys at the Department of the Interior and lobbyists for Chilean mining giant Antofagasta often seem to be singing from the same song sheet. By way of example, I pointed to the fact that both the mining company and the government started talking about Antofagasta’s Twin Metals project as a source of “critical minerals,” and in particular cobalt, at the same time. To illustrate, I included a document in the webinar slides where Interior’s Gary Lawkowski proposed using critical minerals as the cornerstone of the public relations strategy around the Boundary Waters reversal. That’s a topic I hope to have more to say about in the future, especially if I succeed in getting those talking points Lawkowski drafted released in unredacted form.

In a comment posted to the Zoom chat during the webinar, Steve Timmer suggested an even better example: the very legal opinion that allowed Interior to renew Antofagasta’s mineral leases near the Boundary Waters — a document known as an M-Opinion — was derived almost entirely from a 2016 letter to then-Solicitor Hilary Tompkins written by WilmerHale’s Seth P. Waxman on behalf of his client, Antofagasta.

I’ve written about Waxman as the architect of the Boundary Waters reversal before, but it’s still disconcerting to think that attorneys at the Department of Interior were taking their cues from a mining company lobbyist and faithfully following his line of argument. The lobbyist, after all, is hired to advance the financial interests of the mining company, not to act in the public interest — which is what government officials, public servants, are supposed to do.

A November 7, 2017 email shows attorneys at Interior pursuing Waxman’s argument that a mineral lease form issued in 2004 is “ambiguous.” The email is reproduced several times in one set of Boundary Waters documents I obtained through FOIA, but it appears unredacted only once. (Now that I’ve been able to read it, I’ll add it to the Twin Metals Timeline.) It’s an email from Jack Haugrud to Briana Collier, asking for “more evidence” that will help them grapple with a key ambiguity Waxman identified.

It’s unclear why the Solicitor’s office would want to redact both the content of Haugrud’s email and the subject of the email (“Twin-More Evidence”), especially considering the ambiguity Haugrud identifies would turn out to be central to the argument of the December 2017 M-Opinion. “Twin Metals is entitled to a third renewal,” according to the Jorjani opinion. Why? For the same reason Waxman identified: “the renewal terms of the 2004 lease form do not govern. The form is ambiguous, and the intent of the parties to keep operative the terms of the 1966 leases becomes clear once the BLM’s decision files are examined.”

So Haugrud writes to Collier looking for “anything from 1999-2004” that would clear up this ambiguity, and “more conclusively show that BLM intended to incorporate the 1966 lease terms into the 2004 leases.” The goal here was clearly not to air all the historical evidence, but to show that the 1966 leases “govern.” This is an exercise in foregone conclusions — Waxman’s conclusions.

In reply, Collier attaches a set of documents she’s gotten from colleagues in the Milwaukee office of USDA. The first paragraphs of a number of these documents have also been redacted, but it’s pretty clear the redacted paragraphs set out terms of renewal, including stipulations. I posted a couple of these documents on Twitter the other day.

 

For what it’s worth, I’m going to appeal these exemptions, since the agency decisions they report are final, and can’t reasonably be construed as deliberative or privileged. Why were these paragraphs blacked out in the first place? Why redact correspondence between Interior and mineral lease holders from 1987, 1999, or 2003? I could hazard a guess, but that won’t really change the fact that the stipulations and conditions they set out are, for now, hidden from the public. As a result, it’s hard to have confidence in the M-Opinion’s summary:

In sum, we have found no documents or other evidence that indicate in any way that the 2004 renewals were to be on altered terms or conditions from the 1989 leases. Because the 1989 leases renewed the leases under the same terms and conditions as the original 1966 leases, those terms remain operative in the 2004 renewal and, as discussed below, entitle Twin Metals to a third renewal.

In the end, as I’ve noted before, Daniel Jorjani and his team of attorneys simply took Waxman’s cues. So the best way to deal with the ambiguity of the 2004 forms, Jorjani writes, is to consider “extrinsic evidence beyond the ‘four corners’ of the document…to ascertain the intent of the contracting parties.” Here, too, Jorjani will follow Waxman in seizing on the decision files of the Bureau of Land Management to show “that the BLM renewed the leases in 1989 under the same terms as the 1966 leases and did so again in 2004.”

And what were those terms? If you adhere to Waxman and Jorjani’s reading of the evidence, the terms are clear: the mining company, the holder of the leases, is entitled to a “non-discretionary” right to renewal:. because of recognized operational problems in the area, producing minerals in the short term would have been impossible. The leases thus would serve no rational purpose absent a non-discretionary right to renew; no company would undertake the necessary investment for exploration and development knowing that it could be unilaterally deprived of any ability to recoup that investment.” In other words, northern Minnesota is a tough place to operate, so there was never any requirement to bring the leases into production. Solicitor Tompkins was wrong to say there was.

There are a couple of problems with this line of argument. The first has to do with the recourse to extrinsic evidence. Once you go beyond the four corners of the document, where do you stop? Why are BLM decision files from the 1980s the only extrinsic, or historical evidence to consider? To my mind, there are at least three other kinds of extrinsic evidence that need to be taken into account: the redacted paragraphs in the BLM correspondence noticed here; the provisions of the 1978 Boundary Waters Canoe Area Wilderness Act; and the good faith representations made by the Department of Interior when the agency first issued the 1966 leases.

That last item brings me to the second problem with this Waxman-Jorjani line of argument. As Representative Alan Lowenthal has repeatedly pointed out, there is clear historical evidence that the original 1966 leases did not confer a non-discretionary right to renew. There were conditions and stipulations. One was a production requirement. That is, the 1966 leases would not be renewed if the company failed to bring them into production — to start mining — by the end of the primary term of the leases: 1986. The Bureau of Land Management said so in the press release it issued at the time, and in an earlier post I produced several Minnesota newspaper accounts reporting on the production requirement. Here is another that I found just this morning, an article that ran in the New York Times on June 15, 1966.

It seems likely the Times and other newspapers explicitly mention this detail not just because it was included in the BLM press release, but mainly because it was a critical piece of information for investors. Purchasers of International Nickel Company stock at the time would have wanted to know what plans there were to develop the newly-acquired Minnesota leases and what commitment the company had to make a going venture of them. Fifty-four years later, the American public deserves the same consideration.

Update August 28, 2020: An Amended Complaint filed in Wilderness Society et al. v. Bernhardt et al. might help explain why the first paragraphs of those Milwaukee documents were redacted before being released.

The complaint quotes an email from a legislative assistant for Congressman Pete Stauber to a Forest Service Congressional liaison: “I just wanted to touch base on the Twin Metals situation. The company is getting increasingly concerned about the stipulations put forward by the Forest Service on the up or down vote they require for mineral lease renewals every ten years. Both Reps. [Tom] Emmer and Stauber are increasingly concerned that these stipulations could deter Twin Metals from making further investment in the area and slow down economic development in turn.”

Under pressure from Stauber and Emmer, we learn, the Forest Service waived its statutory right to consent to all future lease renewals. This was a departure — an arbitrary and unlawful one, according to the complaint — from the terms of the 1966 and 2004 leases. The Forest Service established new stipulations, including “(1) a right to perpetual renewal of the Leases if Twin Metals complies with the Leases’ terms and stipulations; and (2) a stipulation that if Twin Metals fails to meet certain milestones for developing and constructing a mine during the 10-year renewal period, the Leases will terminate, but with provisions that can toll the Leases’ term.”

It seems the redacted portions of the Milwaukee documents might have set out stipulations that were not to the mining company’s liking. Further discussion here.

Read more about the Boundary Waters reversal here.

 

 

 

 

Did Interior Abandon NEPA for Antofagasta?

New documents show top officials at the Department of the Interior planned to review Antofagasta’s mineral leases near the Boundary Waters under the National Environmental Policy Act, or NEPA, before renewing them. That plan appears to have been abandoned after meetings with Chilean mining company executives in spring of 2018.

The latest Boundary Waters documents in response to my FOIA lawsuit come from Daniel Jorjani, who was Deputy Solicitor at the Department of the Interior when these records were created. The release consists of 122 heavily redacted pages, mostly emails and briefings that circulated as the Department of Interior was preparing to announce that it had reinstated Antofagasta’s mineral leases on May 2, 2018.

These records show that the Bureau of Land Management decided against any “proactive” statement (like a press release) on the reinstatement, and opted instead to create an “if-asked” statement for the press. Russell Newell drafted the if-asked statement and Associate Solicitor Karen Hawbecker reviewed and edited it on Monday, April 30. Deputy Solicitor Jorjani approved Hawbecker’s edits at 5:30PM the same day.

Newell’s draft and Hawbecker’s edits of the if-asked statement are both fully redacted, but we know what the if-asked statement said because Dylan Brown, a journalist writing for E & E News, asked.

Lori Mashburn, White House Liaison at the Department of the Interior, included the official response to Brown’s query in her May 4 Daily Update for Cabinet Affairs. The Update went to Jorjani, David Bernhardt, Doug Domenech and other political appointees as well as Russell Newell. 

At the end of April, 2018, the Department understood that the lease renewals would require “review under the National Environmental Policy Act.” That is also the understanding of the law set forward by the plaintiffs in a lawsuit over the lease renewals currently before the US District Court for the District of Columbia: 

The National Environmental Policy Act (“NEPA”) requires that agencies take a “hard look” at the environmental impacts of their actions before the actions occur, and that they prepare an Environmental Impact Statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976). Courts have clarified that in the mineral leasing context, an agency must prepare an EIS analyzing the ultimate effect of mineral development when it issues a lease without reserving absolute authority to prevent development on the lease. 

But when it came to renewing Antofagasta’s mineral leases, one year later, the Department of the Interior set NEPA aside. Instead of taking a hard look, as required by NEPA, they issued an EA or Environmental Assessment — which is really only a first step in determining whether a project will have significant environmental impact. 

Why the change of plan? As I’ve written here and elsewhere, the Department of the Interior seems to have abandoned plans for an EIS after meetings with executives from Antofagasta in spring of 2018.

In a March 6 meeting summary included with a previous release of documents, Antofagasta officials explicitly stated that an EIS would interfere with their plans. They wanted a Categorical Exclusion; they would settle for an EA. That is exactly what they got.

So it is difficult to avoid the conclusion that top Interior officials knew renewing the leases would require review under NEPA, but they deliberately set aside US law in order to do the bidding of Chilean mining executives.

The August documents are now online here, and all the Boundary Waters documents I’ve obtained to date are here.

Read more about the Boundary Waters reversal here.

More Evidence Foreign Mining Company’s Interests Were Top Priority at Trump’s Interior

This month’s release of Boundary Waters documents in response to my FOIA lawsuit may only number 19 pages, but it helps highlight an important point, one I have repeatedly made when writing and speaking about this issue: reviving Antofagasta’s expired mineral leases in Superior National Forest was a top priority for the incoming administration.

We don’t know why.

The July release shows officials at BLM revisiting the proposed mineral withdrawal in Superior National Forest much earlier than previously known. On January 25, 2017, Richard Cardinale and other Interior staff meet to discuss a correction to the Federal Register. The original notice of the proposed two-year mineral withdrawal incorrectly stated January 21, 2017 as the end date (which would amount to a two-day, not a two-year segregation period). This seems like straightforward, conscientious work.

Two days later, on January 27, 2017, just one week after the inauguration, political appointee Daniel Jorjani seizes on this briefing and forwards it — at 4:48AM — to Katharine MacGregor and Kathleen Benedetto.

It’s clear that the trio has been discussing Antofagasta’s Twin Metals project in northern Minnesota. Why the routine publication of an errata notice in the Federal Register should have excited them, or how it might have served their ends, remains unclear.

But this Jorjani email appears to have gotten the ball rolling. MacGregor requests a list of all public land withdrawals and segregations made in the last year of Obama’s presidency, which Michael Nedd dutifully prepares and delivers on Monday, January 30.

We know from the timeline that by Thursday of that same week, February 2, Kristin Bail is putting together a briefing for MacGregor on Antofagasta’s leases near the Boundary Waters. I am unable to say whether other segregations and withdrawals on Nedd’s list were dealt with so zealously.

It seems safe to say that the business interests of a Chilean conglomerate took precedence over a whole lot of other matters at the Department of the Interior in the first weeks of the Trump administration.

The new documents are here.

Read more about the Boundary Waters reversal here.

A New OpEd and an Upcoming Webinar on FOIA and the Fight for the Boundary Waters

In today’s MinnPost, Chris Knopf and I discuss one finding of the documents I obtained through FOIA: Chilean mining company Antofagasta set the terms — the calendar and the scope — of environmental review for the renewal of its mineral leases near the Boundary Waters. The OpEd is here.

On Wednesday, I’ll be presenting some of my research (and talking about the Freedom of Information Act and good government) in a free online webinar hosted by Friends of the Boundary Waters. You can register here.

Update 9 July 2020: here is a recording of the webinar.

Heavy-Handed Assertions of Privilege

 

With Aaron’s encouragement, I wrote on June 23 and again yesterday to Lance Purvis, Office of the Solicitor FOIA Officer at the Department of the Interior, asking about the redaction of what are essentially public relations exercises: Talking Points and a “brief blurb” drafted by Gary Lawkowski in December of 2017 to explain the reversal of the Obama administration’s legal opinion on Antofagasta’s mineral leases near the Boundary Waters.

The redacted documents, which I posted on Twitter and included in a previous post, are marked with Exemption (b) (5). This covers attorney/client, attorney work product, or deliberative process privilege; and it is intended to protect documents that are pre-decisional, or unfinalized, where someone at an agency seeks legal advice for formulating policy, or where agency officials deliberate about a policy or decision.

Though Gary Lawkowski is an attorney and was at that time working for Solicitor Daniel Jorjani — they are fellow travelers from the Koch Brothers-backed Freedom Partners — these public-facing communications do not constitute legal advice for formulating policy. Can they be withheld as internal agency deliberations? Only if they are pre-decisional and their release would confuse the public about steps the agency decided not to take; and that would be a real stretch, as these documents explain a decision already taken, namely, the new legal opinion. So how can communications of this kind, talking points and blurbs intended for public consumption, be covered by Exemption 5?

The most relevant case in the Justice Department’s own archive of court decisions on Exemption 5 appears to be Fox News Network LLC v. Dept of Treasury. This was a 2012 case that dealt directly with the assertion of Exemption 5 to withhold public relations documents and communiques. The outcome was mixed: the court granted and denied motions for summary judgment in part for both the plaintiff and the defendant.

The documents at issue relate to press releases, inquiries from the press, and related e-mails, which were withheld because “they reflect ‘how best to present Treasury’s position.’  In an earlier decision [a 2010 decision on Fox v. Treasury which Judge Frank Maas refers to as Fox I], the court explained “that communication concerning how to present agency policies to the press or public, although deliberative, typically do not qualify as substantive policy decisions protected by the deliberative process privilege.” The court states: “Drafts of public relations documents therefore may properly be withheld if their release would reveal the status of internal agency deliberations or substantive policy matters.” Applying these principles, the court finds that disclosure of drafts of certain press releases and related e-mails would “reveal the evolution of Treasury’s thinking regarding the proposed restructuring of the AIG investments.” However, where it cannot be “shown that the materials relate to anything other than past events…[and] there is no indication that the ‘public response’ about which the author speaks involves policy action, rather than mere messaging[,]…documents are not entitled to protection under the deliberative process privilege.” [emphasis mine]

 A full week has gone by without reply or even acknowledgement. These documents are being released as part of an agreement reached in my pro se FOIA lawsuit against the Trump administration, so the issue will need to be addressed. And while these heavy-handed assertions of privilege may seem small and not worth arguing over — what are we going to learn from those talking points that we don’t already know? — they are part of a larger pattern of abuse.

 

A Small Set of Jorjani Boundary Waters Documents

A new set of documents released yesterday in response to my Freedom of Information Act lawsuit offers a little more insight into the role high-level political appointees at the Department of Interior played in the Boundary Waters reversal.

This latest release is the smallest I’ve received to date: 197 pages, whittled down by reviewers from 1,000 potentially responsive pages. As always, the documents are pretty thoroughly redacted, with most of the redactions made under Exemption 5, which covers attorney-client, attorney-work product, and deliberative process privilege.

Most of the documents appear to be email correspondence to and from Daniel Jorjani, who was then Principal Deputy Solicitor at the Department of Interior. I’ve written about Jorjani before (see, e.g., 1, 2, 3, 4). Some of these documents have already been made public. But even these duplicates can be revealing. For example, an exchange between Daniel Jorjani and David Bernhardt mocking Governor Dayton includes the Principal Deputy Solicitor’s approving reply (“perfect”) to Bernhardt’s sneer, which I had not seen before:

perfectSalazar

Or consider this example, which I posted on Twitter yesterday:

Lawkowski thought it might be a good idea, for public relations purposes, to make it seem that Chilean mining giant Antofagasta’s copper and nickel mining operation in Minnesota would deliver critical minerals: “the Forest Service has indicated that they believe there are potentially cobalt and platinum deposits underneath Superior National Forest,” he writes on December 20th, 2017, noting that cobalt and platinum were included on the new list of “critical minerals” published by the US Geological Survey earlier that same week.

He may have shared the same line of thinking with Downey Magallanes, another political appointee, at around the same time. “Are you working on twin metals [sic],” she writes, asking if Lawkowksi can “do a blurb for the weekly report much like you did for MBTA [the MIgratory Bird Treaty Act, subject of another controversial December 2017 Solicitor’s opinion]?”  Lawkowski is ready to help, and runs his (here, wholly redacted) effort by Haugrud and Jorjani:

lawkowskimagallanes

At the time, Magallanes was Deputy Chief of Staff for Policy at the Department of the Interior. (She now works in Government Affairs at BP.) As the timeline indicates, she had been in the Twin Metals loop since at least April of 2017. In December, as Deputy Solicitor Jorjani prepared to release a new legal opinion that would clear the way for the reinstatement and renewal of Antofagasta’s mineral leases near the Boundary Waters,  it would have been Downey’s job to integrate the legal opinion into a broader policy framework. Invoking the new list of critical minerals would have helped her do that.  Platinum and cobalt deposits in the Duluth Complex would provide a policy rationale — or at least a convenient pretext — for allowing Antofagasta to mine copper and nickel on the edge of the Boundary Waters. 

You can explore the new set of documents here, and all the Boundary Waters records I have received to date here

Read more about the Boundary Waters reversal here.

A Debate Over Environmental Review? New Boundary Waters Documents

“Again pinging BLM”: in 2017, the US Forest Service appears to have been concerned over what standards of environmental review applied to the proposed mineral withdrawal in Superior National Forest.

A new set Boundary Waters documents arrived yesterday. This is the latest monthly installment in a “supplemental production” of responsive records the Department of Interior agreed to make after I sued for failure to comply with FOIA. This batch includes 378 pages, pretty thoroughly redacted. I’ve put them online (1,2, 3, along with the rest of the Boundary Waters documents I’ve obtained) and started to go through them.

Their arrival might be timely. Some of the records show officials at the Department of Interior trying to decide on appropriate standards of environmental review as they work on renewing Chilean mining giant Antofagasta’s mineral leases in Superior National Forest. That is a question at the heart of a new lawsuit filed at the start of this month in US District Court for the District of Columbia.

Wilderness Society et al. v. David Bernhardt et al. says the Bureau of Land Management failed to comply with the National Environmental Policy Act (NEPA) in renewing Antofagasta’s mineral leases. It also charges that the US Forest Service acted in an arbitrary and capricious manner (in violation of the Administrative Procedure Act) when it reversed course and promoted mine development, despite having previously found that allowing sulfide mining near the Boundary Waters would pose unacceptable risks.

Hopefully this case is going to shed light on the question why Interior rushed to renew Antofagasta’s mineral leases, and at whose direction, and why Secretary of Agriculture Sonny Perdue abruptly cancelled the scientific study of sulfide mining near the Boundary Waters.

While the new documents don’t answer those questions directly, they conform to the pattern we’ve seen in previous document releases. They paint a picture of nearly complete regulatory capture, with Interior officials meeting and working closely with executives from Antofagasta and their Twin Metals Minnesota subsidiary as well as lobbyists from WilmerHale.

There are, for example, records here of a March 6, 2018 meeting and another on March 22nd. Daniel Altikes (the Antofagasta executive I discussed in a previous post) flies up “from Chile” for that one:

The documents also show Antofagasta/Twin Metals weighing in on what standards of environmental review should apply to the renewal of their mineral leases as well as their preference right lease applications (or PRLAs). According to the meeting summary prepared by Ryan Sklar of the Office of the Solicitor, the mining company recognizes “that there is debate about the type and scope of review that is necessary/appropriate.” Not surprisingly, they would prefer a Categorical Exclusion (CX: meaning the renewal would essentially be exempt from environmental review!), but they will settle for a “limited EA” (which is essentially what they got).

The meeting with Altikes and the lobbyists from WilmerHale on Thursday, March 22nd appears to be the follow up Sklar mentions here. It’s unclear from the documents I have whether there was much debate on that occasion or any dissent in the room at all.

Read more about the Boundary Waters reversal here