Category Archives: Prosperity

The Boundary Waters, Offshore: Luksic in the Pandora Papers

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

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

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

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

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

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

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

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

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

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

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

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

Read more about the Boundary Waters reversal here

The Latest Records in my Boundary Waters FOIA Case

This morning, after some prodding, Interior sent the 18th supplemental production of records in my Boundary Waters FOIA case. This release numbers only 108 pages. I reviewed the documents this morning in this Twitter thread.

At the moment, the biggest takeaway for me is that we still don’t know nearly enough about coordination among the Department of Interior, the Trump White House, and the USDA, and how politics — and pressure from the mining company — played into the Trump administration’s decisions around Antofagasta’s mineral leases near the Boundary Waters.

Today’s release shows that legal memoranda from the mining company on the mineral withdrawal circulated at Interior just days before Solicitor Daniel Jorjani met with David Bernhardt’s close associate Michael J. Catanzaro, then with the Executive Office of the President, and Stephen Vaden, an attorney at USDA who seems to have been charged with keeping Sonny Perdue apprised of developments on this front.

Perdue had promised Representative Betty McCollum in May of 2017 that “we are absolutely allowing [the mineral withdrawal study] to proceed.” By August of 2017, the mining company had offered a whole host of legal arguments that would help Perdue move away from that declaration. But remarkably enough, he didn’t take that route. Instead, in September of 2018, after a year-long pressure campaign, he abruptly cancelled the two-year mineral withdrawal study, then in its eighteenth month, and declared the Rainy River Watershed open to new exploration. Why? Probably because Trump had publicly fingered him, on a May 2018 visit to Duluth: “It’s now up to Secretary Perdue, and I know he’s looking at it very strongly.” It was clear enough what Sonny Perdue had to do. Where legal arguments had failed, coercion succeeded.

I still believe Secretary Vilsack ought to ask the USDA Inspector General to look into the matter, because there’s pretty clear evidence that Perdue acted corruptly, or at least arbitrarily and at the caprice of the president, but it’s seeming less likely Vilsack will do the right thing. Secretary Vilsack has steered clear of making any comments about mining near the Boundary Waters, citing ongoing litigation in Wilderness Society v. Bernhardt and the review of the matter that Interior is undertaking in connection with that litigation — which is now supposed to be completed by October 22, according to court filings. But as I have said repeatedly, the Secretary as head of a federal agency has an independent obligation to the American public and does not need permission from another agency to investigate corruption at the one he leads.

The new records are here.

And all the Boundary Waters FOIA records I’ve obtained to date are here.

Read more about the Boundary Waters reversal here.

Are We Ever Going to Find Out How the Boundary Waters Reversal Really Went Down?

I can make a few additions to the Twin Metals timeline based on the latest release of records in my FOIA case against the Department of Interior, and I hope to get around to that soon. For those who would like to review these documents for themselves, the 16th supplemental production in Galdieri v. Dept. of Interior is online here; and all the public records concerning the Trump administration’s actions on Antofagasta’s mineral leases I’ve obtained through Freedom of Information Act requests may be found here.

This new set of records dates from the final months of 2017, when attorneys at the Department of the Interior are drafting, editing, and preparing to release the M-Opinion that would reverse the Obama administration’s actions and grant Chilean mining company Antofagasta, Plc “non-discretionary right” to a third renewal of its Twin Metals mineral leases. The emails included here span the period from then-Deputy Secretary David Bernhardt’s briefing on the matter in early October 2017 to the release of the M-Opinion in late December.

We get a little more detail here about the Bernhardt briefing — or, at least, evidence of continued sensitivity around it. For example, DOI has redacted the phrase that Karen Hawbecker used to describe one of the briefing documents. 

Why the redaction? Why should this phrase be subject to Exemption 5?  It refers to a document dated August 9, 2017, and its title is clearly indicated in the list of attachments: “Draft Lease Renewal Scenarios w[ith] comment.” How did Hawbecker characterize these scenarios?* Or could this be a case of sloppy redaction, where the reviewer did not notice the paper title in the list of attachments? If so, why should the reviewer not want to indicate that David Bernhardt was presented with a list of “lease renewal scenarios” prepared in August 2017?

Clearly, legal issues as well as political sensitivities were at play, and still are. In December 2017, the Solicitor’s office brings Ron Mulach, Office of the General Counsel at USDA, into the loop; OGC makes some changes to the letter the Bureau of Land Management will send to the Forest Service, notifying them of the new disposition. Other communications with attorneys at the Department of Justice, most likely regarding ongoing litigation, were not included in this release because they will “require consultation” with DOJ, according to the letter accompanying these records. A December 5 note about comments received on the draft from the Environmental and Natural Resources Division and a query from an ENRD attorney asking when the new M-Opinion will be issued are among the traces of those communications.

These documents also heighten the impression that there might have been some tension between political appointees and career attorneys at DOI in that first year of the Trump administration. Duplicates of some previously released emails show Gary Lawkowski, the political appointee who was then serving as Counselor to fellow Koch alumnus Daniel Jorjani, running some kind of independent operation within DOI. Lawkowski asks to see the mineral leases in November. He then drafted, or announced that he was drafting, his own version of the M-Opinion, which appears to have created confusion. As we know, he also floated the idea that the new M-Opinion should be positioned as a critical minerals play. While Lawkowski is pushing that industry-friendly line, Richard McNeer, who has been with the Solicitor’s Office since 1998, suggests including some talking points about how the public can make its views known to the Bureau of Land Management and the Forest Service.

Overall, then, this latest release contributes to the impression that the Boundary Waters reversal was a political project from the get-go. We still don’t know enough about the forces behind that project or about the ways it connected with other schemes run behind the facade of government during the last administration. I remain convinced there is a larger, untold story here, but I am less confident than I was a few months ago that the current administration is going to pull back the curtain or investigate how this all went down.

Read more about the Boundary Waters reversal here

*Update, 23 June 2021: It turns out we know exactly how this email read before it was redacted this time around.

And among the documents I’ve obtained is a fully redacted copy of the scenarios paper. It’s entitled “Twin Metals Potential Scenarios for Lease Renewal.” The title almost suggests that Twin Metals (or, more likely, Antofagasta’s WilmerHale lobbyists) provided the scenarios or developed them with Karen Hawbecker.

Perhaps the “comments” included were Hawbecker’s comments on scenarios created by lobbyists or with them? It’s worth noting that these scenarios emerge in the workflow at the Solicitor’s office just a couple of weeks after a July 25, 2017 meeting with Antofagasta, as the timeline shows. Did Antofagasta executives and their lobbyists arrive with these scenarios in hand? Were the scenarios the subject of the meeting?

In any case, Karen Hawbecker worked on the scenarios and forwarded them as separate documents, as scenarios 1, 2A, 2B, and 3, on August 6 and 7 2017 to Jack Haugrud, correspondence shows. The scenarios were then combined into the scenarios paper. Haugrud offers his opinion (“Karen, I”) in some back and forth with Hawbecker on August 7, 2017 that is also redacted.

So the latest redaction only served to direct my attention to these documents and raise the question why there should be sensitivity around them now. It would be troubling if attorneys at Interior were now trying to cover their tracks after following Antofagasta’s lead during the Trump era.

Federal Agencies Need to Deliver Themselves from the Legal and Ethical Morass Trump and his Cronies Left Them In

The 15th supplemental release of Boundary Waters documents in my FOIA case against the Department of Interior arrived yesterday. I’ve added the documents to documentcloud. Were I to characterize these records as disappointing, I might only be admitting that I still expect too much from them. Still, this release looks especially untidy, and there may be something going on behind the scenes — some change in staffing, for example — that I am not aware of.

First, the attorney assigned to my case in US District Court contacted me a couple of weeks ago to let me know that this production would be a few days late. When it came, the response letter, which accompanies every release and describes how many pages were reviewed, how many withheld, what exemptions were used, and so on, was missing. (Someone just forgot to attach it to the email, which begins “Attached is the Solicitor’s 15th Production response letter….”). The documents come from Brianna Collier, a career attorney in the Office of the Solicitor — who has been the main custodian of records in this case. We only catch glimpses of what Trump’s political appointees were doing when Collier is in the loop.

The documents themselves are heavily redacted, with deliberative process (b)(5) claimed throughout. Excerpts from Hein’s Legal Research Guides are the only records not redacted. They would be available publicly anyway. What can only be an earlier draft of the 19 page M-Opinion by then-Solicitor Daniel Jorjani dated December 5, 2017 is completely redacted. We know from the timeline that the memo was nearly finished by then, but instead of taking time to redact just those phrases and paragraphs which were still under deliberation, the FOIA officer applied a very broad brush on all 19 pages.

The FOIA officer took a slightly less aggressive approach to an August 7, 2018 memo written by Ryan Sklar on the Forest Service’s application to segregate 234,328 acres of federal land within Superior National Forest. This is the land withdrawn from mineral leasing and development while the US Forest Service completed “the necessary environmental analyses under the National Environmental Policy Act (or NEPA).” The law is clear. Sklar explains in a footnote:

Just one month later, of course, then-Secretary of Agriculture Sonny Perdue would cancel the two-year assessment, claiming that “the analysis did not reveal new scientific information.” So far, we have had to take Sonny Perdue’s word for it; the findings of the cancelled withdrawal study still have not been released. The cancellation meant that any “final decision” on the application for mineral withdrawal would be made without a complete case file — without the complete NEPA document. And without a “final” NEPA document, review would likely be guided by political considerations, not scientific evidence.

Except for an intriguing closing sentence, the discussion section here is fully redacted:

There’s not much to go on here, except Sklar’s final note: discussions of “next steps” around the Rainy River Watershed withdrawal were “ongoing” just one month before Sonny Perdue abruptly cancelled the application. There were, at that point, five months to go in the review required by NEPA, and pressure on Sonny Perdue was at its peak, with Trump publicly directing Perdue to look at the withdrawal “very strongly” and reassuring Minnesota mining proponents that they would “do very well.” Tom Emmer, Pete Stauber, Rick Nolan, and Paul Gosar kept the pressure on Perdue behind the scenes.

It’s unlikely Sklar’s legal memo refers explicitly to that pressure campaign, but it’s also hard to believe that he or anyone working on this issue at Interior was unaware of it.

The agencies now need to deliver themselves from the legal and ethical morass Trump and his cronies left them in. Secretary of the Interior Haaland should ask BLM to request a complete case file from the US Forest Service, with the necessary NEPA analysis, so that BLM can evaluate and review the withdrawal and so that she can make a lawful decision. USDA Secretary Tom Vilsack should release the preliminary findings of the cancelled two-year scientific study, unredacted. He should also ask the USDA Inspector General to review Perdue’s decision to cancel the withdrawal application and NEPA analysis. And though it’s unlikely they will do everything they should to set things right — that’s a tall order, and they’ve inherited a mess —  we can expect some steps in this direction before the end of next month, when the stay in Wilderness Society v. Bernhardt expires.

Read more about the Boundary Waters reversal here.

The Second Most Important Chart in the New IEA Report

This is probably the most important chart in the new IEA report, Net Zero by 2050:

It answers the question I asked when I first read about the report in today’s New York Times: what happens without the “unprecedented” global cooperation the report calls for?

In that likely scenario, the IEA does not see the world arriving at Net Zero emissions until around 2090 — which means we will have missed important targets (including limiting average global temperature rise to 1.5° Celsius warming). It also means a much less livable human future.

The second most important chart, to my mind, is this one, predicting  growth in demand for critical minerals such as copper, nickel, cobalt, lithium, and rare earth elements.

The report breaks it down further:

In a short Twitter thread I wrote this morning, I offered this guess:

 

A BLM Map of Critical Minerals Near the Boundary Waters

The latest release of Boundary Waters documents arrived today, a 14th supplemental production in response to my FOIA lawsuit v. the Department of the Interior. I’ve put them online here.

Two things caught my attention right away: first, an inventory of documents the Solicitor’s office at the Department of the Interior put together, apparently in connection with the Voyageur litigation. A short Twitter thread calls out some items of interest.

Also among the records I received today: a Bureau of Land Management map showing prospecting permits and preference rights leases in Superior National Forest.

There are already a significant number of active leases and many more in the application stage that could eventually come online.

The purple plume of inferred and hypothetical reserves of critical minerals is especially noteworthy here.

We know from other documents I obtained that political appointees in the Solicitor’s office intended to position Antofagasta’s mine as a source of critical minerals; and after the Trump administration published a new list of critical minerals in 2017, Antofagasta itself even flirted briefly (in its 2017 Annual Report) with the notion that Twin Metals had significant cobalt reserves.

The Biden administration is currently reviewing the actions the Trump administration took on Twin Metals and — maybe just as importantly — they are undertaking a review of the critical and strategic minerals supply chain. If it were to be fully developed, that purple plume of hypotheticals and inferences could become a real-world industrial corridor.

Update, 12 May 2021: According to a May 10 Settlement Agreement in Center for Biological Diversity et al. v. Mitchell Leverette et al. (a case in the US District Court of the District of Columbia), the Bureau of Land Management will review its May 1, 2020 decision authorizing the extension of 13 of the prospecting permits indicated on this map. The renewals were made without an Environmental Assessment under NEPA or an effects determination under the Endangered Species Act. These thirteen prospecting permits are for all intents and purposes suspended until BLM completes its review; Antofagasta agrees not to engage in any ground disturbing activities. Antofagasta’s two mineral leases are also under review at Interior and USDA, and we can expect some news on that front in the June 22 filing in Wilderness Society v. Bernhardt.

A Return to Science and a Push for Responsible Mining — Whatever That Means

New Boundary Waters documents arrived yesterday. I posted a short thread on Twitter as I reviewed them.

These records traverse familiar ground. Most date from January, 2018, when attorneys at Interior were preparing letters notifying the Forest Service and Twin Metals that the Solicitor’s Office had reversed the Obama administration.

For Twin Metals, this would mean that the Department of Interior had rescinded its rejection of their application for lease renewal. Not a green light — that would come more than a year later, in 2019 — but an encouraging sign of new and friendly disposition. For the Forest Service, the reversal would send an early signal that the two-year mineral withdrawal study would either have to favor renewal of Antofagasta’s leases (unlikely), or it would have to be cancelled if it were going to stand in the way of renewal. The issue raised questions about compliance with NEPA, as one heavily redacted exchange suggests:

It would be helpful to know more about how these attorneys saw the problem with NEPA at this time, especially when evaluating the action then-USDA Secretary Sonny Perdue in September of that same year, when under political pressure he abruptly cancelled the planned study.

The document trail invariably takes us back to that critical decision. It deserves careful and comprehensive review. There was some movement in this direction yesterday, when Senator Tina Smith wrote to Perdue’s successor at USDA, Tom Vilsack, and Secretary of the Interior Deb Haaland to ask that the BLM and Forest Service to start a new mineral withdrawal and segregation process and resume the study Sonny Perdue interrupted.

Smith’s letter calls for a return to science but recommends a more limited review than the situation warrants. She wants the agencies to determine whether copper and nickel can be “safely” mined in this area, and she also wants to present herself as a champion of Minnesota mining. It’s a move she seems to have learned from Amy Klobuchar.

Be that as it may, Smith offers Vilsack and Haaland one way forward over the next few months, during the court-ordered 90-day stay in Wilderness Society v. Bernhardt.

We must protect our precious wilderness. At the same time, we must pursue opportunities for both recycling and responsible mining of important mineral resources in the United States. If you believe—as I do— that the United States should lead the way in creating a clean energy future, then we must support public policy which allows for responsibly mining the minerals that this future requires. It is irresponsible and unethical to outsource exploitive [sic] labor practices and environmental degradation to other places while we reap the benefits. However, copper-nickel mining is not right for all places. There are some places too sensitive to mine. This is why we the [sic] mineral segregation and withdrawal study is so essential.

The letter simultaneously recommends precautions for the Rainy River Watershed and “responsible mining” to build “a clean energy future.” Those two things aren’t necessarily incompatible, but it’s unclear how this statement translates to coherent rule-or decision-making. It’s also the same line on mining that Secretary of Energy Jennifer Granholm has taken in recent public statements. How will the new administration determine what responsible mining for the clean energy future looks like? That is going to take some difficult conversations, but it’s not an issue Granholm, Vilsack, and Haaland can or should put off for very long.

Secretary of Agriculture Tom Vilsack Should Promptly Review the Trump Administration’s Decisions around Mining in Superior National Forest

The 12th supplemental production of Boundary Waters documents in response to my FOIA lawsuit is now up on documentcloud. This Twitter thread calls out some highlights:

What’s most remarkable is just how consistent this release is with previous releases. The story remains the same: the Trump administration’s decisions around mining in Superior National Forest, on the edge of the Boundary Waters, were heavily influenced by a lobbying blitz, interference with regulatory review, and a coordinated, high-pressure campaign to cancel a planned scientific study.

This latest release offers some new details and color around the decision to reinstate Antofagasta’s mineral leases, as attorneys at Interior work on the official reinstatement letter and the news release that will become part of the public record. Most of the editorial decisions they take are heavily redacted; but the decision to opt for an “if-asked” statement over an official press release is exactly the strategy taken with the initial reversal or M-Opinion in December of 2017. Under the subject heading “Twin Metals Acquired vs. Public Domain Lands,” there is more discussion about the map drawn by mining engineer Timothy Howell, and how to reconcile its boundaries with Antofagasta’s Preference Right Lease Applications. And those PRLAs are also the subject of yet another meeting at Interior in March of 2018 with a gang of attorneys from WilmerHale and Twin Metals. Their objective is to press Interior on Antofagasta’s Preference Right Lease Applications and fix the scope and schedule for environmental review, prescribing the “regulatory scheme” officials at Interior should follow. As I noted in my Twitter thread, Chris Knopf and I called out a strikingly similar effort in regard to these PRLAs at another March 2018 meeting.

The story these records (and all the records I’ve received) tell inevitably arrives at then-Secretary of Agriculture Sonny Perdue’s decision to cancel the mineral withdrawal study in Superior National Forest. I’ve written about this critical decision before (here, here, and most recently, here). It was the product of a coordinated pressure campaign by WilmerHale lobbyists, top executives at Antofagasta, the White House, Republican legislators, and the Congressional Western Caucus.

From this release, we learn a little more about that decision.  In the Spring of 2018, for example, attorneys at Interior still assumed that Perdue would allow the mineral withdrawal study to proceed. In fact, in April of 2018, Secretary Ryan Zinke was prepared to reassure Representative Betty McCollum that the scientific study would help satisfy NEPA and protect Minnesota taxpayers from environmental and economic disaster. Perdue’s decision would break that promise in order to satisfy President Trump.

So these records from the Department of Interior appear to shed light on corruption at the USDA. It’s clear that newly confirmed USDA Secretary Vilsack should promptly review Perdue’s decision, publish an unredacted version of scientific findings to date, and open an ethics investigation into cancellation of the proposed mineral withdrawal. It’s time to repair the damage Perdue did, return the agency to science, and restore the integrity of USDA.

A Pressure Campaign: New FOIA Releases And A New Filing in Wilderness Society v. Bernhardt

Well past due, but yesterday the 11th supplemental production of Boundary Waters documents in response to my FOIA lawsuit arrived. You can find them here. All the Boundary Waters records I’ve received to date — now approaching about 10,000 pages — are here.

This release includes more records from Briana Collier, an attorney in the Division of Mineral Resources at the Department of Interior. The records show Collier and colleagues in summer of 2018 conferring over litigation around the decision to reinstate Twin Metals’ mineral leases near the Boundary Waters; other email threads show lawyers for Twin Metals at WilmerHale communicating with BLM attorneys about their upcoming motion to intervene and some discussion about whether Minnesota or DC would be the better venue. Pedestrian fare, maybe, but the impression is, once again, of WilmerHale and attorneys at BLM working in tandem to protect and advance the financial interests of Chilean mining giant, Antofagasta, Plc.

Another exchange relating to Twin Metals prospecting permits shows Dean Gettinger, a District Manager at the Northeastern States District of the BLM, trying to “get things moving.” The Forest Service is under pressure to make a determination on the Twin Metals prospecting permits; and this looks like yet another instance where the mining company is driving the calendar of agency review. (That was the subject of an OpEd I published this summer with Chris Knopf.)

The pressure is on: in May, 2018, the mining company even contests whether its Preference Right Lease Applications (PRLAs) fall within the boundaries of the proposed mineral withdrawal area.

These are the same PRLAs that were under discussion at a March 6, 2018 meeting where Twin Metals asked for a Categorical Exclusion — essentially no environmental review at all — but said it would settle for an Environmental Awareness review (which is exactly what it got). We don’t know whether Howell determined that they fell within the proposed mineral withdrawal zone, because his response to this email is almost entirely redacted. He apologizes for his delayed response, then continues: “Technically there” and the rest is redacted under deliberative process privilege. It is unclear why a cut and dry matter like this — the question whether the leases fall within the boundaries of the map Howell drew — merits this kind of protection.

These are not just isolated instances of the mining company raising questions about the status of its applications or expressing impatience because time is money. A loosely coordinated, well-funded, extensive lobbying and pressure campaign was launched the minute the new administration took office. Just this week, in fact, a new filing in Wilderness Society v. Bernhardt gave us new details about how extensive this campaign was, with Representatives Tom Emmer, Pete Stauber, Rick Nolan, and Paul Gosar running interference for the mining company. I put together a Twitter thread about it:

The prime target of this pressure campaign was none other than Secretary of Agriculture Sonny Perdue, who alone had the power to cancel the proposed mineral withdrawal. Emmer was trying to arrange a meeting between Perdue and the CEO of Antofagasta as early as July of 2017.

We don’t know when they first met, but Perdue and Ivan Arriagada would meet in May of 2018, just around the time those PRLAs and the borders of the mineral withdrawal map were under discussion. One month later, Trump prematurely on purpose blurted out in Duluth that the mineral withdrawal was on track to be cancelled. “‘It’s now up to [Agriculture] Secretary [Sonny] Perdue,'” Trump told local elected officials and mining advocates at a roundtable before his Duluth visit last week. ‘And I know he’s looking at it very strongly, and I think you’ll do very well.'” The quote is from a story by Dylan Brown in E&E News included in the collection of documents I just received.

Here is video of the moment. Andrea Zupancich, mayor of Babbitt, MN, tees it up:

Anyone who has been paying attention to the way Trump speaks understands that this was an instruction. “He doesn’t give you questions, he doesn’t give you orders, he speaks in a code,” his former attorney Michael Cohen told Congress. The code here is pretty easy to crack: look at it “very strongly” (not intently, not with a careful eye to the most responsible course, but from an attitude of strength) and make sure the people who want this withdrawal undone “do very well.”* Shortly after this, Perdue was warned that Gosar and others would be “pissed” if the Forest Service didn’t follow through.

Under pressure, it appears, Sonny Perdue folded.

*Postscript: The very next day, June 21, 2018, Sonny Perdue’s calendar shows a “Twin Metals Brief” just before the Secretary heads over to the White House for a cabinet meeting. It doesn’t take a whole lot of imagination to guess the content of that briefing.

Read more about the Boundary Waters reversal here.

Two Sets of Boundary Waters Documents: The Fallout from the Reversal

Two sets of Boundary Waters documents arrived yesterday afternoon.

The first set of documents is the tenth supplemental production — the December production — in response to my FOIA litigation. It includes more records from Briana Collier, 411 pages dating back to 2018 and mainly to do with the fallout from the Boundary Waters reversal: attorneys at Interior prepare for litigation over the reversal and start to gather materials to respond FOIA requests (including mine). I’ve put these materials online here.

The Collier correspondence shows attorneys at Interior searching for and reviewing letters and lease files from 1966 forward to prepare for litigation in the Voyageur case, for instance. In one exchange, the litigation specialist at BLM is apparently trying to reconcile the current lease form with the historical leases. Her questions have been redacted:

This same collection of correspondence also offers a glimpse of attorneys at Interior processing multiple FOIA requests at around the same time that Solicitor Daniel Jorjani was putting the Awareness Review Policy formally in place. There appears to have been some confusion about how to run the records search and how to include custodians who had taken on new assignments, in different departments. At one point, Collier apologizes for the “mess”:

The second set of records in this release includes 126 pages of documents previously withheld until the White House and the Office of the Secretary could review them. These records are now online here. They consist mostly of regular briefings by White House Liaison Lori Mashburn — another political appointee who came to Interior via the Heritage Foundation and the Trump 2016 campaign. These briefings present roundups of news coverage, summaries of schedules and announcements, tweets by Zinke that Mashburn deems “notable,” and the occasional flattering detail — e.g, Zinke’s appearance on the History Channel program Navy Seals: Kill or Capture.

Pages 107-126 of this 126 page document present Daniel Jorjani’s email correspondence and a briefing prepared for “the Duluth trip” (Trump’s June 2018 trip to Duluth, which I wrote about here) by Mitch Leverette, Acting Eastern States Director. The part of Leverette’s memo dealing with “Federal permits, leases, and extension requests” has been fully redacted. The issue was still very much in the works:


One takeaway from these documents is that the Boundary Waters reversal — the Jorjani legal memo of December 2017 — ruled in Antofagasta’s favor but unsettled the regulatory picture for much of 2018. “Questions regarding how to interpret the original lease terms have also persisted,” notes Leverette in his memorandum; and Interior was dealing with other questions as well. An exchange in the December production shows Kevin Baker, Vice President for Legal Affairs at Twin Metals, trying to sort out some “confusion based on the recent approvals” from the Bureau of Land Management and US Forest Service.

Subsequent actions by Interior and USDA were intended to give Baker and executives at Twin Metals and Antofagasta the results they sought and the clarity they needed to proceed. Now, with the arrival of a new administration only weeks away, things may seem little less settled.

Read more about the Boundary Waters reversal here.