Category Archives: Louis V. Galdieri’s Blog

The Architect of the Boundary Waters Reversal

1989 files

“Extrinsic evidence” from the 1980s: one of the files from the Milwaukee District Office of the Bureau of Land Management appended to Waxman’s 2016 letter to Hilary Tompkins.

Principal Deputy Solicitor Daniel Jorjani signed the December 2017 Department of Interior memo that re-opened the door to sulfide mining near the Boundary Waters, but he probably should not be considered the legal architect of the Boundary Waters reversal. That dubious honor appears to belong to Seth P. Waxman. Or at least the key arguments in Jorjani’s memo seem to be largely derived from a letter Waxman wrote on behalf of Twin Metals to Department of Interior Solicitor Hilary Tompkins back in July of 2016.

Waxman’s name may ring a bell. He has had a distinguished legal and political career. Under President Clinton, he served as Solicitor General of the United States. In the last year of the Bush administration, he made oral arguments before the Supreme Court in Boumedienne v. Bush, to uphold habeas corpus rights for Guantanamo detainees. During the Obama years, his name was even floated as a Supreme Court nominee. Waxman is also a partner at WilmerHale, the powerful DC firm that has led both the lobbying and litigation efforts for Antofagasta, Plc in its bid to renew its mineral leases in Superior National Forest.

Waxman sent his 24 page letter to Hilary Tompkins on July 1, 2016. On the same day, he sent a letter to Secretary of Interior Sally Jewell. Those letters are included among Department of Interior documents obtained through FOIA. The letter to Tompkins appears to have been the most widely shared. It was attached to an April 27, 2017 email from Raya B. Treiser of WilmerHale to Cathy Gulac, secretary to James Cason, confirming a May 2nd meeting with Antofagasta CEO Ivan Arriagada at Interior. You can follow it from there as it gets attached to other email exchanges and forwarded around.

HaugrudLawkowski

A handoff from Interior’s Jack Haugrud to a political appointee: Gary Lawkowski, Counselor to the Solicitor. Attached is Seth P. Waxman’s 2016 letter to Solicitor Tompkins.

Waxman’s argument in the letter to Solicitor Tompkins is that Twin Metals has a non-discretionary right to renewal, as dictated by the terms of the leases negotiated by the International Nickel Company and the Bureau of Land Management back in 1966. This is also the conclusion at which Jorjani arrives, and he appears to do so by carefully following Waxman’s lead. Here, I’m going to highlight several places where Waxman’s influence on Jorjani seems undeniable. (To make it easier for others to follow along, I’ve posted the Waxman letter. Jorjani’s memo can be found here.)

To the layman — and I am one, so anything I say here should probably be read in light of that — the very idea of a non-discretionary right to renewal might seem paradoxical, or at least puzzling. Apparently the federal government, and specifically BLM, can “grant” and has twice granted (in 1989 and 2004) the renewal of these mineral leases, but it has no discretion to deny renewal (as long as the company complies with the law). Hobbled, BLM can say yes but not no. Waxman’s argument easily and cleverly explains why this is so. The terms of the 1966 lease, he says, are both “comprehensive” and “unique”, and those unique terms still “govern” (to use the phrase Jorjani prefers) or (in Waxman’s words) “control”:

One of those terms is a right to renew the lease (in fact, to successive renewals). This right is critical to the parties’ overall bargain: The investment required of the lessee under the leases is enormous. But 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. (p. 1)

Of course, it’s possible to think of a rational purpose mineral leases could “thus” serve absent a non-discretionary right to renew. The leases might afford the company an opportunity to explore a mineral resource on public lands within a specified period of time and on certain terms, assess the feasibility of developing the resource, and provide a right to negotiate successive renewals. We can easily imagine circumstances in which the federal government might reserve discretion, and renewal might be contingent on all kinds of things, like changes in environmental conditions, advances in scientific knowledge, evidence of responsible stewardship, or commensurability with other rights. That all sounds perfectly reasonable. There’s no need to insist that a “non-discretionary right” is the only appropriate arrangement, or buy into the view that preserving discretion over renewal confers on government the power to “unilaterally [deprive]” the company of “any ability.”

This is lawyer’s hyperbole, affecting sobriety and marking out an extreme position: the only “rational” course appears to be one that protects the investment of the mining company, from exploration through development. Having entered into a lease agreement with a mining concern, the federal government is now bound to help the company realize a return on its investment. And that would require going way beyond providing incentives. Surrendering all discretion, the government defers entirely to private interests and agrees to relieve the mining company of business risk.

This Extractive Industry First approach is perfectly congruent with Trumpism and its doctrine of Energy Dominance. We see it reflected not just in the Jorjani memo but in some of the changes Ryan Zinke and David Bernhardt brought to the Department of Interior. Perhaps Mr. Waxman is a man ahead of his time — by about a year, it seems. But let’s grant, for the moment, Waxman’s position that this non-discretionary right is indeed the “unique” arrangement the 1966 leases set out, and focus instead on the area where Jorjani’s memo relies most heavily on Waxman: in reaching the conclusion that the 1966 leases “govern.” Here is Jorjani’s brief restatement of Waxman’s argument:

Twin Metals is entitled to a third renewal. First, 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. (p. 8)

Jorjani adds in a footnote (number 38) that Solicitor Tompkins’ memo did not examine this “extrinsic evidence” — 1980s decision files from the BLM’s Milwaukee office, which Waxman attached as exhibits to his letter to Hillary Tomkins — “because of its underlying premise that the 2004 lease forms were unambiguous.” This, too, echoes Waxman, and builds on an argument about ambiguity and how to resolve it that Waxman sets out repeatedly in his 2016 letter to Tompkins: “Because the renewal provision in the 2004 standard forms is ambiguous,” he writes, “extrinsic evidence [namely, the 1989 BLM decision files] must be considered” (pp. 22-3). Jorjani returns to the theme several times: “the meaning of the 2004 leases is ambiguous” (p. 11), but those Milwaukee files from the 1980s clear everything up.

Waxman discusses what should be done in such cases of ambiguity: “Where a provision in a contract is ambiguous, courts resort to extrinsic evidence to resolve the ambiguity by ‘determin[ing] the intent and meaning of the parties” (p. 23). Jorjani is on exactly the same page: “where contract terms are unclear or ambiguous, an examination of extrinsic evidence is appropriate to properly interpret the contract in accordance with the parties’ intent” (p. 10). Waxman maintains that “extrinsic evidence must be considered, and it confirms that the parties’ intent in executing the 2004 forms was to re-confirm that Twin Metals has a non-discretionary right to renew” (p. 3). Jorjani, too, discovers the “intent” of the 1966 parties in the 1989 files:

…the meaning of the 2004 leases is ambiguous. Given this ambiguity, extrinsic evidence beyond the ‘four corners’ of the document may be considered to ascertain the intent of the contracting parties. Examining the decision files of the BLM resolves the ambiguity. The record shows that the BLM renewed the leases in 1989 under the same terms as the 1966 leases, and did so again in 2004. (p. 11)

Though both Jorjani and Waxman seize on the same Milwaukee documents to prove intent, neither entertains the possibility that there might be other extrinsic evidence to consider in this case — to illuminate historical context, help clarify why the Milwaukee office took the actions it did in 1989, or throw into relief the different economic and environmental conditions, or different assumptions about public lands and private industry, that obtain in 1966, 1989, 2004, or for that matter now. This isn’t a historical inquiry, after all: it is, instead, a search for proof of intent that will shore up the mining company’s claim. It’s just a little unsettling to see the vast resources of the Department of Interior being marshaled to that purpose, following the lead of Antofagasta’s counsel.

Let’s go back, once more, to this issue of ambiguity. One of the main reasons why the 2004 leases are ambiguous — and why the 1966 leases control, and why the Milwaukee documents are necessary in the first place — is that the 2004 leases lack what is known as an integration clause. A written contract is “integrated” when the parties consider it to constitute their full and complete agreement. Or, as a Jorjani footnote (49) explains, “Integration clauses, also known as merger clauses, are contract provisions that generally state that the agreement as written constitutes the entire agreement between the parties and supersedes any prior representations.” Jorjani cites Corbin on Contracts for his authority; Waxman, Williston on Contracts: the standard lease forms used in 2004 do not “supersede or annul” the 1966 leases (Waxman, p. 11).

As Waxman states at the outset of his letter, this lack of an integration clause is a point Solicitor Tompkins does not “acknowledge” in her M-Opinion (p. 2). Both Waxman and Jorjanil will go to town on this point.

Waxman:

the Opinion asserts (p.6) that the 2004 standard forms are “complete, integrated documents,” and thus their renewal provision governs the analysis here. In making this assertion, the Opinion does not acknowledge the lack of any integration clause in the 2004 standard forms. (p. 7)

And again:

…the 1966 leases control. The Opinion’s contrary view depends on its assertion (p.6) that the 2004 forms are “integrated” contracts. But they are not; the 2004 forms lack any integration clause (a point the Opinion does not acknowledge), and there is no other basis on which to conclude that the 2004 forms— divorced from the 1966 leases that the parties attached—were integrated contracts. In light of this, the Opinion’s refusal to consider extrinsic evidence conflicts with established law. (p. 2)

Jorjani picks up on the same phrase (“complete, integrated documents”) in Tompkins’ Opinion, and appears to paraphrase Waxman:

Rather than being “complete, integrated documents,” the leases attach without full explanation the entirety of the 1966 leases and do not include an integration clause that states that the 2004 lease forms are the complete expression of the parties’ agreement. These facts alone warrant an examination of extrinsic evidence to determine the intent of the parties. (p. 10)

Here, in a footnote (number 50), Jorjani cites a 1999 Second Circuit case Waxman uses in his letter (p. 9): Starter Corp. v. Converse, Inc.. “When a contract lacks an express integration clause [courts] must ‘determine whether the parties intended their agreement to be an integrated contract by reading the writing in light of the surrounding circumstances.” That’s Waxman. Jorjani cites the exact same sentence, using brackets, as Waxman does, to substitute “courts” for “district court” in the original text, and putting the word “must” in italics for emphasis.

jorjaninote50

That two knowledgeable lawyers are appealing to the same legal precedents might not be all that surprising. But it seems pretty clear that this citation, too, is part of a disconcerting pattern.

None of this goes directly to the question of legal merits, or which reading of the Twin Metals leases should or eventually will prevail. Yet something here is seriously amiss. The blueprint followed by the Principal Deputy Solicitor at the Department of Interior to reverse protections for the Boundary Waters appears to have first been drawn by the attorney for a Chilean mining conglomerate. That should raise some questions about ethical conduct, about revolving door access and undue influence, and about whether the opinion Jorjani released in December of 2017 should be allowed to stand.

You can read other posts on the Boundary Waters Reversal here.

A New Set of Boundary Waters Documents

In response to a Freedom of Information Act request I made back in January of 2018, the Department of Interior has released over 5,000 pages related to the Trump administration’s rollback of federal protections for the Boundary Waters. These and other documents have allowed me to put together this timeline, which tells a pretty clear story. From the very first days of the new administration, Interior Department officials and mining company lobbyists worked closely together, and with blatant disregard for science and the environment, toward a predetermined outcome that served the business interests of a foreign mining company, and not the public interest.

The latest release arrived on Friday afternoon. It’s a collection of email correspondence and attachments from Briana Collier, an attorney in the Division of Mineral Resources. These documents are now published here.

An email from Collier included in an earlier release had tipped me off to a previously undisclosed meeting at the US embassy between the CEO of Antofagasta PLC and the Carol Z. Perez, the US ambassador to Chile. Any hopes that this latest release would shed more light on that meeting, or make other equally significant disclosures, were quickly dashed when I opened the PDF. About 400 of the 650 pages included here are redacted, many of them entirely, on the basis of attorney client privilege or deliberative process. Almost all date from December of 2017, when the Office of the Solicitor at Interior was finalizing the Jorjani memo — the memo that cleared the way for Antofagasta PLC to renew its mineral leases in Superior National Forest.

In these documents, we mainly see officials crossing ts and dotting is in the memo before its release. There are some emails exchanged at the last minute regarding the first footnote in the memo, on the Weeks Act, which establishes the Secretary of Interior’s statutory authority for the disposition of minerals. The footnotes for an important section of the memo (pp. 11-13), arguing that BLM previously renewed the leases on 1966 terms, are the subject of another last minute exchange. One footnote in particular, which is number 65 in the draft under discussion (but not necessarily in the final version, given all the last minute changes) “raises issues we do not want to address.” What issues are those?

Twin Metals continues to work closely with Interior. When Bob McFarlin, Government Affairs Advisor for Twin Metals, comes to DC with Anne Williamson, Twin Metals Vice President of Environment and Sustainability. for a “quick meeting” on December 15th with Tony Tooke, the new US Forest Service Chief, he writes to see whether he might arrange a “short visit” while he’s in town with Kathleen Benedetto. Benedetto and Williamson had met — when exactly, we don’t know — during the summer of 2017. McFarlin asks that Mitch Leverette, Eastern States Acting Director, Bureau of Land Management, join them.

There is ongoing concern over coordination with the Forest Service, from the drafting of a letter announcing that BLM will no longer consider the Forest Service’s non-consent to lease renewal valid, to the very minute the memo is released. Correspondence with the Forest Service’s Kathleen Atkinson is almost entirely redacted. And Interior’s efforts to coordinate with Forest Service only add to the confusion around plans for a news release. At what appears to be the direction of David Bernhardt’s office, work was done on a “relatively short” Minnesota-only press release. Even that is eventually cancelled, and it’s decided that Interior will deal with this only “if asked.”

Before that, however, and at the request of Interior Communications, Gary Lawkowski, Counselor to the Solicitor of the Interior and another Koch veteran, forwards a “one-pager of talking points on the Twin Metals opinion” to Daniel Jorjani and Jack Haugrud for review. He has put them together “given [or with an eye to] today’s focus on critical minerals.” (Recall that “strategic minerals” were a central theme of Ivan Arriagada’s April 17, 2017 letter to Secretary Zinke as well.) In a second email circulating the talking points to Deputy Director of Communications Russell Newell, Lawkowski elaborates: “One thing you all may want to note — the Forest Service has indicated that they believe there are potentially cobalt and platinum deposits underneath Superior National Forest….Cobalt and platinum are on the list of 23 critical minerals released by USGS earlier this week.” Eureka.

As I continue to comb through this latest release, I will add more details to the Twin Metals Timeline. If something here catches your eye, let me know in the comments below, or send me an email (my Twitter handle is also my gmail address). And if you have documents that can add color or contrast or depth to the timeline, please get in touch.

You can read all my posts about the Boundary Waters reversal here.

A Meeting in Santiago about Mining in Minnesota

I’d like to focus, in this post, on what is so far a unique entry in the Twin Metals timeline: an April meeting at the US Embassy in Santiago Chile, with Ivan Arriagada, the CEO of Antofagasta Plc, and Carol M. Perez, the US ambassador to Chile. We know about this meeting only through documents obtained by Freedom of Information Act requests, and specifically from just one email dated 26 April 2017, sent by Briana Collier to Jack Haugrud:

BrianaColliertoJackHaugrud

Intriguing: but for now, the best I can do is provide a little context.

As the timeline shows, the meeting at the US Embassy in Santiago, Chile in the week of April 26th took place during a period of intense activity around the Twin Metals project. It was held just a little over a week after Mr. Arriagada had written directly to then-Secretary of the Interior Ryan Zinke, requesting an in-person meeting in Washington, DC, on either May 2nd or 3rd. (Arriagada would come to Interior for the first time on the 3rd. Internal emails show that he met on that occasion with several officials at the Department of the Interior, but Zinke is not among them, at least not on the calendar entries I have seen; and if Arriagada met with Zinke separately on May 3rd, there is no entry for any such meeting on Zinke’s official calendar.) So perhaps the embassy in Santiago serves as a way station of sorts, a first stop for Arriagada on his American tour.

It was probably here, in Santiago, that Arriagada first started to make the case he would make in Washington, DC. The letter to Ryan Zinke lays out the appeal the mining company would make at Interior, and it also helps us gain an impression of what this meeting at the embassy was about. It opens with Arriagada declaring that he is “proud” to associate himself and his company — which has never operated a mine in the United States — with “the development of strategic minerals in the United States.” Here in the US, Arriagada clearly understands, minerals acquire “strategic” status when mining companies run into permitting delays and other difficulties. It is, as I’ve noted elsewhere, code for overriding and rolling back environmental regulations. (This leads me to suspect that Arriagada’s letter to Zinke was actually written by the lobbyists at WilmerHale. Whether they played a role in arranging the meeting at the US embassy is impossible to say, given the evidence we have.)

Arriagada’s letter goes on to explain that Antofagasta has already spent “upwards of $400 million in investment” on the “exploratory phase” of Twin Metals. The company frequently brandishes this figure, but I’ve never seen it broken down. Interior’s own Kathleen Benedetto will repeat the $400 million figure a week later, on April 25th, when she briefs Zinke in preparation for his 26 April meeting with Representatives Emmer and Nolan; and the number will be repeated in news stories as well. I am not sure what “upwards” means here, but it seems to be doing an awful lot of work. Principal Deputy Solicitor Jorjani seems to believe caution is warranted: near the end of his December 2017 memo, he notes only that the company “has asserted that it has spent over 400 million in exploration activity.”

For what it’s worth, $400 million is not a number Antofagasta uses in its communications with shareholders or in its financial statements. (See, e.g., here, here and here.) The number routinely associated with the Twin Metals project in these communications is black, not red: $150 million — the value PWC, Antofagasta’s auditor, assigns to the project as an “intangible asset.” When it comes to investments, both the 2015 and 2016 Antofagasta annual reports note a decrease in exploration and evaluation costs, reflecting a “general decrease” in exploration activity “at the Centinela District in Chile and the Twin Metals project in the United States.” There is the added minor discrepancy that this letter characterizes Twin Metals as a “mineral development project, currently in the exploratory phase,” while in the 2016 and 2017 annual reports, the project has already advanced from the Exploratory phase to the Evaluation phase. It appears shareholders and US government agencies are being told two different stories about Twin Metals. In any case, the big round $400 million number is the thing that sticks. It’s used to intimidate and spook. A year later, Zinke will tell Representative Betty McCollum that the Obama administration’s decision exposed taxpayers to “hundreds of millions of dollars” in takings litigation. He was probably recalling Arriagada’s number, or Benedetto’s spin on it.

We now know that Zinke and the Department of Interior were doing Arriagada’s bidding all along, and they’d gotten started well before this letter was written. (And if WilmerHale did in fact draft this letter, then it’s really just some stage business, to create a paper trail for a meeting to discuss an ongoing effort coordinated by WilmerHale.) Interior officials appear to have been less concerned about the exposure of US taxpayers than about the risk the mining company had taken on: “our past and future investment now hangs in the balance,” Arriagada writes in April of 2017. He asks to meet with Zinke to discuss “a viable path forward” for the Twin Metals project. The letter lists three obstacles the Obama administration put in Antofagasta’s way: the M-opinion issued by solicitor Hilary Tompkins; the decision by the Bureau of Land Management to rescind the Twin Metals leases, based on the M opinion; and the withdrawal of thousands of acres of Superior National Forest from mineral development initiated by BLM and the US Forest Service. Remarkably, before Zinke resigned in disgrace, he, Deputy Solicitor Daniel Jorjani, and other officials at the Department of the Interior (and the Department of Agriculture) came through for the Chilean mining company on all three counts.

How any of this work on the mining company’s behalf at Interior bears on the meeting in Santiago, Chile, and what any of it has to do with Carol Z. Perez, the US ambassador to Chile, is hard to say. It’s still not clear why Arriagada thought he should stop first at the embassy in Santiago. A courtesy? An opportunity to get some pointers on how to deal with the new administration? Or something even more specific? To get a better idea, I’ve filed two FOIA requests with the Department of State for communications and documents that will help illustrate the meeting Perez had with Arriagada, but the State Department has labeled the requests “complex,” and I have yet to receive any responsive documents.

We know that Briana Collier briefed Perez, so Perez was looking at the Twin Metals project through the lens of the briefing document Interior provided. And if this briefing was anything like the one page briefing prepared around the same time for Zinke by Kathleen Benedetto — if that April 25 briefing represents the general position of Interior at that point in time — we can observe one thing at least. By April, the US government had completely set aside the previous findings of the US Forest Service and any consideration of the serious environmental risks posed by sulfide mining operations on lands adjacent to the Boundary Waters. The Benedetto briefing makes no mention whatsoever of these concerns. In fact, when Doug Domenech took a briefing on the Twin Metals project for the White House a little over a month later, on June 1, 2017, he apparently read what Benedetto sent him and needed some clarification on this point. That much is clear from Benedetto’s reply:

Benedetto_to_Domenech1June2017

Sic. And with that sloppily written gesture, which barely manages to disguise its contemptuous disregard, Benedetto relegates all science and science-based policy that would caution against permitting sulfide mining in this region to what “people opposed to the project believe.” (The only risk Benedetto appears to consider worth mentioning is the exposure of the American Taxpayer — the initial capitals are hers — to takings litigation, adding that BLM values the Twin Metals deposit at $49.48 billion. The figure is based on a 2014 BLM report that assumes a 44% rate of return. That $400 million investment sure has grown.)

The meeting at the embassy in Santiago needs to be seen in the context of this coordinated push to overturn Obama era decisions, sideline science and environmental protections, and turn Antofagasta’s much-touted investment to a tangible asset — a working mine. Without some response to the Department of State FOIA requests, context will have to substitute for content. Why should the State Department have been asked to intervene in the Twin Metals matter?

Perhaps the aim of this meeting was not to involve the State Department at all. That may not make a whole lot of sense, on the face of it. Perez made her career in the State Department, serving in various posts around the world since the 1980s. She worked for Condoleezza Rice, did a brief stint in Italy, and coordinated State Department anti-drug trafficking efforts before President Obama appointed her US Ambassador to Chile in 2016. She appears to enjoy no special favor with the Trump administration, and she was slated to be replaced by a Trump nominee: Andrew Gellert, who was nominated to the post on January 4th, 2018. And Gellert would be much more closely aligned with the White House than with foreign service officials in the State Department.

This is one last piece of context to consider. We don’t know why Arriagada brought the US embassy in Santiago into the loop on the Twin Metals project. It seems tolerably clear, however, that the US embassy in Santiago would have remained in the loop, and in much closer communication with the Trump White House, had Andrew Gellert been confirmed as US ambassador to Chile. As was noted at the time of his nomination, Andrew is the son of George Gellert, a longtime business associate of Charles Kushner. The Gellerts and the Kushners have done business together for decades, often by nothing more than a handshake — no contracts. Andrew is President of the Gellert Global Group, a food importing conglomerate that does some dried fruit and nut business in Chile, and also counts among its holdings and investments “numerous real estate ventures” with the Kushner Companies. After Charles Kushner’s conviction and imprisonment a decade ago, George Gellert started working closely with Jared Kushner on a number of deals, including the disastrous 666 Fifth Avenue deal. It seems worth noting — even if it’s hard to figure out whether it amounts to anything at all — that back in August of 2018, just a couple of weeks after Brookfield Asset Management paid $1.3 billion to rescue Jared Kushner and George Gellert from 666 Fifth Avenue, Andrew’s nomination to be ambassador to Chile was quietly withdrawn.

Palmater on the Right to Say ‘No’

The very first post I wrote for The Asking Project set out always take no for an answer as a cardinal rule of asking, and I’ve revisited that rule a couple of times since, drawing connections with Margaret Gilbert’s ideas of joint commitment, looking at the way saying no turns the ethical spotlight back on the person doing the asking and — most important of all — sets conditions for new respectful relationship.

There’s a strong connection between this (ethical) rule of asking and (legal) considerations of consent. This is complex territory, so an illustration might be useful. Consider, for starters, this piece Pam Palmater wrote back in October on the indigenous “right to say ‘no’,” as enshrined in the doctrine of free, prior and informed consent.

A little background. After a Canadian court ruled against the Trans Mountain pipeline expansion, the Trudeau government announced that instead of appealing the decision, it would undertake a consultation process with First Nations. Palmater accused the government of conducting a charade, of “using” or abusing this process “to force the expansion of this pipeline.”

Regardless of whether the new consultations are led by a former Supreme Court justice or Trudeau himself, Canada has already decided that the pipeline will be built, before ever talking to any of the impacted First Nations, including those that have asserted Aboriginal title. This renders our constitutionally protected Aboriginal rights meaningless. What legal value is the federal government’s constitutional obligation to consult, accommodate and obtain the consent of First Nations before taking actions that would impact our rights and title, if “consent” is interpreted as the right to say yes but excludes the right to say no? It makes no logical sense to interpret the law in such a way, especially to a constitutionally protected right.

Imagine if consent was interpreted this way in both the ordinary and legal understanding of the word “consent.” When a school sends home a permission form seeking a parent’s consent to allow their child to take a field trip, if the parent does not give consent, the school cannot allow the child to participate. Similarly, if a patient refuses to give consent to an operation to have their hip replaced, then the doctor cannot perform the operation. The absence of consent means no — in other words, a veto that has real legal power and meaning. Imagine if consent was interpreted in this illogical and diminished manner for sexual relations as it is for Aboriginal rights. Imagine if sexual consent in law meant that a man could consult with a woman on whether she wanted sexual relations, and was even willing to accommodate (“where appropriate”) her wishes about how to have sexual relations, but she had no right to say no — no veto over whether or not sexual relations occurred? That is called sexual assault and it is a crime.

The greatest injustices that have ever been committed against First Nations in Canada have resulted from denying the sovereign right of our Nations to say no. The right to have a real veto over infecting our blankets with smallpox; from scalping our people; from stealing our children and raping, murdering and torturing them in residential schools; sterilizing our women and girls; from the forced adoptions of our children into white families during the Sixties Scoop; to the murders and disappearances of our women and girls; to forced human trafficking and now the destruction of our lands and waters for profit.

The right to say no is an inherent part of the legal concept of consent. To interpret this concept otherwise is racist, discriminatory and self-serving, not unlike the doctrines of discovery and terra nullius. Surely, even the Supreme Court would not interpret their own decisions in such an impoverished manner. To do so would render Section 35 [of the Constitution Act, protecting First Nations rights] an empty shell of a constitutional promise.

The Burgundy Ribbon Rule

BurgundyRibbonsCalPERS

Another rule, and for the time being, at least, I am happy* with the wording here: an abuse of asking almost always presents an abuse of power.

Take the case of burgundy affair at the public pension fund CalPERS, as documented by Yves Smith over at Naked Capitalism.

This past fall, documents obtained by Smith show, CalPERS CEO Marcie Frost “asked the CalPERS senior leadership team to wear burgundy to show their support for her” as she faced questions about representations she had made regarding her educational background before and after she was hired. Burgundy ribbons were set out in break rooms with messages urging the “Team” to wear one in a show of support. “No pressure and no problem if you do not want to do this,” the message reads, “it is completely voluntary.” Completely.

“This is obviously inappropriate,” writes Smith,

since a request made by a CEO is effectively an order. CalPERS executives and employees are civil servants, not Frost’s personal retainers. As an expert on managerial and political conduct reacted:

I don’t even know what category to put this in. A scandal-plagued boss orchestrating support by inventing gang colors and pressuring employees to wear them? What happens to the employees who don’t perform this ritual of fealty? Should they be polishing their resumés and practicing their swimming skills?

These incidents smack of underlying panic. Frost is working overtime to shore up her position as CEO in the face of fully deserved questions regarding her long history of misrepresentations about her background, which include committing perjury in Washington on a gubernatorial questionnaire. Not only is Frost pushing her subordinates far too hard to back her up, since they can only do so much for her and coercing them will diminish their good will, she is also showing a lack of a sense of professional boundaries….

Frost’s burgundy campaign may well have crossed the line into creating a hostile work environment. One senior staff member who came to the office and saw the “dress burgundy” request too late to comply issued a written apology. Similarly, when “asked” to wear burgundy to an offsite, one [employee] who wears only black and white felt compelled to buy a burgundy outfit to comply…

…word clearly got around quickly, including the notion that non-compliance was risky.

I am still fussing over the word “presents,” and I’ve considered “masks” and variations in that direction, as well as “declares,” “represents” or “signals.” That one abuse (presenting an order as a request) almost always carries the other with it — almost always, because I don’t want to get caught up right now in handling exceptions — is the essential thing.

You can read my other posts about asking here.

*Postscript: On reflection, I might prefer this much more straightforward and concrete formulation: when someone presents an order as a request, look for an abuse of power. That way, we don’t have to worry too much about motives, or figure out whether the person doing the asking is trying to get away with something. It falls to the person being asked to watch for abuse, and conduct herself accordingly. (Being asked for something, or to do something, turns the ethical spotlight on you, or at least requires you to share it with the person doing the asking. This is your moment.) In a case like the present one, and in most superior-subordinate relationships, calling out abuse may be impractical. Subordinates will bury grievances, reluctantly comply, or pretend not to have been aware of the request. The subordinate’s dilemma in this case registers a failure of governance; a failure of governance at the highest reaches makes itself manifest at even the lowest levels and in the most trivial matters (the wearing of a ribbon). More immediately, presenting orders as requests hijacks power, creates distrust (after all, we can’t help but wonder about motives), and makes people prone to dissemble. All this thwarts collaboration, or the power to do things (to act) together.

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 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.”

Update, 19 December. The Department of Justice has requested a second extension, until January 28, 2019, to file a response. The reason given is, again, “because the attorneys with principal responsibility for preparation of the government’s response have been heavily engaged with the press of previously assigned matters with proximate due dates.” The request goes on to note that counsel for the Marquette County Road Commission does not oppose a second extension. So we can’t expect anything like a resolution in this case until the New Year.

Update, 28 January 2019. The Environmental Protection Agency responded today to the Road Commission’s petition for Supreme Court review.  As expected, the reply focuses on the fact the Road Commission “voluntarily discontinued the permitting process” back in 2015, then turned around and brought suit, saying the EPA had acted in an arbitrary and capricious way.

The EPA replies that this is a mess of the Road Commission’s own making.

To be sure, EPA’s objections may have had the practical effect of making the overall Section 404 permitting process (if petitioner had continued to pursue it) more protracted than it otherwise would have been…. At most, however, EPA’s objections required petitioner to continue with a permitting process that petitioner was obligated to invoke regardless of EPA’s objections—a requirement “different in kind and legal effect from the burdens attending what heretofore has been considered to be final agency action.”

The Road Commission has repeatedly failed to convince the lower courts of its central contention, that EPA objections amounted to a veto.  Instead, when the Michigan Department of Environmental Quality declined in July of 2015 to grant or deny the Road Commission’s application, permitting authority for CR 595 transferred to the Army Corps of Engineers. The Road Commission could have simply continued the permitting process.  Why didn’t they? Instead, they’ve ended up here, at the door of the Supreme Court, looking for relief from — what, exactly? their own impatience?

Update, 11 February 2019. Attorneys for the Marquette County Road Commission have filed a Reply Brief. In a more sophisticated version of the veto argument rejected by the Sixth Circuit, they accuse the EPA of playing “a semantic shell game” around the issue of final agency action. They still use the word “veto” throughout the brief, and argue that EPA has made an important concession in its 28 January filing:

they now concede one crucial point that below they denied: the Corps required the Road Commission to submit a new Section 404 CWA permit application after the EPA vetoed the permit the State of Michigan stood ready to issue. [Here they cite a sentence from the EPA brief, which states:] “the Corps asked petitioner to submit a ‘new’ application.” That factual concession amounts to an implicit legal concession that, in regards to the State of Michigan Department of Environmental Quality (MDEQ) Section 404 CWA permit application process, the EPA’s work was consummated… Moreover, it recognizes that there were consequences to the Road Commission that flowed from that consummation of EPA’s work in regards to that vetoed state permit: now, the Road Commission had to take action in order to obtain a Section 404 CWA permit—it had to submit a new permit application to the Corps.

Who, exactly, is playing shell games? This argument appears to be little more than sophistry. When the EPA brief uses the word “new” at the indicated place (page 11), the brief is quoting the Marquette County Road Commission’s own petition. That is why the EPA places “new” inside quotation marks. EPA is, moreover, quoting Marquette County Road Commission in order to refute the assertion that this was anything but the continuation of an ongoing review process. To quote your opponent is not to concede his point.

The Reply Brief also cites the recent Weyerhaeuser decision over enforcement of the Endangered Species Act to argue that there is “a basic presumption of judicial review for any party suffering legal wrong because of agency action.” This would seem to create the burden of proving that the Road Commission suffered legal wrong — which would seem to bring us full circle: the Road Commission only suffered legal wrong if, in fact, the EPA’s objections constituted a veto.

Round and round we go. Now it’s up to the Roberts court to sort this out, or just turn it down. I still think the latter is the most likely outcome.

Update, 19 February 2019. A 13 February entry in the docket shows the case has been distributed for conference on the first of March. It is one of ten Sixth Circuit cases up for consideration.

You’ll find my other posts on MCRC v. EPA here

Renault’s Hedge

The Attorney General’s letter says that he is resigning at the president’s “request,” but that of course is a euphemism. He never had the choice of not complying, or negotiating a different outcome, as he would if this had been an authentic request. Reports say Sessions wanted to stay on at least until the end of the week, but John Kelly hustled him out the door.

It’s a common ruse to disguise orders or commands as requests. Turning the verb “ask” into a noun — “the ask,” “my ask” — is one form this abuse takes. The euphemistic use of “request” is another.  In my work on asking, I’ve given this euphemism a name: Renault’s Hedge, after Captain Louis Renault in the movie Casablanca.

Rick’s Cafe. Captain Renault, played by Claude Rains, tries to mediate between Major Strasser and the resistance leader Victor Laszlo.

The scene seems like a piece of stage business that brings together the film’s main characters for the first time, only to have them arrange to come together at a later date. But the whole scene is a carefully scripted and choreographed negotiation of “authority,” from the soldier’s salute (in recognition of Strasser’s rank) at its beginning to the polite bows at its end. Throughout, witticisms, pleasantries, good manners and the norms of Casablanca cafe society serve as a hedge against Strasser’s power of command. 

STRASSER : I should like to discuss some matters arising from your presence on French soil.

LASZLO: This is hardly the time or the place.

STRASSER: (hardening) Then we shall state another time and another place. Tomorrow at ten in the Prefect’s office, with Mademoiselle.

LASZLO: Captain Renault, I am under your authority. Is it your order that we come to your office?

RENAULT: (amiably)  Let us say that it is my request. That is a much more pleasant word.

LASZLO: Very well.

Renault and Strasser bow shortly.

The improbable thing, of course, is that Renault’s hedge works, at least well enough to end the standoff (and Laszlo is, at this point, no longer sitting but standing face-to-face with Strasser).

It works in part because the film presents Strasser satirically as a striver, a Nazi brute pretending to be a civilized European. It also works because Rick’s Cafe, like Casablanca itself, is a place where the authority of the occupiers can be contested (think only of the scene in which Laszlo leads the singing of “La Marseillaise”). Polite repartee is still possible here: Victor Laszlo can mock Nazi occupation and subjugation to German authority as a “privilege” he has never accepted, and take refuge in decorum (“this is hardly the time or the place”) when Strasser tells him he should like to question him.

At the same time, this recourse to civility is always fraught with jeopardy. Here, it allows Renault to soften Major Strasser’s order, and all but compel Laszlo’s appearance. Renault’s Hedge gives cover to a moral retreat.

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.