Category Archives: Prosperity

Another Look at the Twin Metals Timeline

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

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

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

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

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

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

Demagoguery in Duluth

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

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

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

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

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

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

Here is my transcript of his remarks on the topic:

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

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

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

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

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

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

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

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

Purdy on Public-Lands Populism

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

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

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

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

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

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

McCollum Questions Zinke on the Boundary Waters Reversal

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

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

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

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

At any rate, here is the full exchange:

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

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

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

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

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

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

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

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

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

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

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

Twin Metals At Interior – A Timeline

Some new reporting by Jimmy Tobias gives us more insight into the Boundary Waters reversal, which I’ve discussed in previous posts (1, 2, 3). Through a records request, Tobias obtained the calendar of Kathleen Benedetto, Special Assistant to Interior Secretary Ryan Zinke.

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

Tobias identifies at least six meetings or communications with mining interests on Benedetto’s calendar regarding the Twin Metals project in Superior National Forest, including the July 25th all-hands-on-deck meeting between high-ranking Interior officials and representatives of Antofagasta Plc. (Update: the group had met with Antofagasta earlier, on May 2nd, less than a month after Benedetto started meeting with mining company representatives.) The Benedetto calendar gives us a much fuller chronology and more detail than we previously had. Putting it together with the Jorjani calendar — and other calendars, as they become available — results in this timeline*:

December 15, 2016 Obama administration releases Memo M-37036, denying renewal of Twin Metals leases. Tracy DC Real Estate, Inc. formed in DC by Luksic’s lawyers.
December 22, 2016 Tracy DC Real Estate Inc. purchases the Kalorama Triangle mansion at 2449 Tracy Pl NW. [For this part of the story, see this post.]
January 3, 2017 First news reports that Ivanka Trump and Jared Kushner are moving into the Kalorama mansion.
January 4, 2017 Official sale date entered for the Kalorama mansion.
February 21, 2017 Antofagasta subsidiaries Twin Metals Minnesota and Franconia Minerals sue the United States Department of Interior.
February 28, 2017 Tracy DC Real Estate obtains business license for the rental at 2449 Tracy Pl. NW. The license expires in 2019.
April 6, 2017 Kathleen Benedetto: Ext. Meeting Boundary Waters [with?].
April 18, 2017 Benedetto: Ext. Mtg. Twin Metals [with? Cf. Friday 16 June].
April 19, 2017 Benedetto: Twin Metals. On the calendar of Karen Hawbecker, Associate Solicitor, Dept. of Interior.
April 24, 2017 On the calendar of Katharine MacGregor, Principal Deputy Assistant Secretary for Land and Minerals Management. Meeting with Timothy G. Martin of Wilmer Hale, on behalf of Twin Metals Minnesota. MacGregor has a call with Jorjani scheduled immediately after this meeting.
April 26, 2017 On the calendar of Interior Secretary Ryan Zinke: meeting with Landon Zinda, legislative council for Representative Tom Emmer (R-MN, 6th District) and Will Mitchell, Legislative Director for Representative Rick Nolan (DFL-MN, 6th District). A briefing by Kathy Benedetto and Kate MacGregor of the Department of Interior on the Twin Metals Leases.
April 28, 2017 Benedetto Meeting with Rob Lehman, WilmerHale re: Twin Metals Minnesota. On the calendar of Gareth Rees, Executive Assistant at US Department of the Interior.
April 28 2017 Benedetto: Twin Metals briefing. On the calendar of Briana Collier. U.S. Department of the Interior, Office of the Solicitor.
May 2, 2017 On the calendar of Gareth Rees: Meeting with Antofagasta plc re: Twin Metals Minnesota Project. Included in this meeting: Gareth Rees, James Cason, Katharine MacGregor, Michael Anderson, Kathleen Benedetto, [Linda Thurn], Richard Cardinale, Tracie Lassiter, Kevin Haugrud, Mariagrazia Caminiti, Karen Hawbecker.
May 3, 2017 Benedetto: Meet and Greet with Representatives of Save the Boundary Waters.
May 26, 2017 Principal Deputy Solicitor Daniel Jorjani call with Rachel Jacobson of WilmerHale, regarding a “DC Bar Event.”
June 9, 2017 Benedetto: Chat w/Timothy Martin from WilmerHale, re: Twin Metals – Minnesota. On the calendar of Katharine MacGregor, Deputy Assistant Secretary for Land and Minerals Management.
June 14, 2017 Daniel Jorjani meets with Raya Treiser and Andy Spielman of WilmerHale.
June 15, 2017 On the calendar of Gareth Rees: meeting with Jobs for Minnesotans.
June 16, 2017 Benedetto Ext. Mtg. Twin Metals – Bob McFarlin [at that time, Vice President of Public and Government Affairs, Twin Metals Minnesota].
June 19, 2017 Meeting w/ USDA and DOI on Twin Metals Superior National Forest. On the calendar of Katharine MacGregor.
July 11, 2017 Call between Secretary of the Interior Ryan Zinke and Minnesota Governor Mark Dayton. Also attending: Jennie Maes, Assistant Chief of Staff to Governor Dayton. Topic: Boundary Waters Canoe Area Wilderness and nearby copper-nickel mining.
July 25, 2017 All Hands on Deck for meeting with Antofagasta Plc re: Twin Metals Minnesota Project. On the calendar of Gareth Rees. Included: Kevin Haugrud, Katharine MacGregor, Michael Anderson, Karen Hawbecker, Kathleen Benedetto, James Cason, Gareth Rees, Linda Thurn, Richard Cardinale, Tracie Lassiter, Mariagrazia Caminiti, Edward Passarelli, Michael Nedd, Daniel Jorjani.
August 9, 2017 Katharine MacGregor: meeting with Chad Horrell, Sportsmen for the Boundary Waters.
September 7, 2017 Internal meeting at Department of Interior on Twin Metals: Daniel Jorjani with Jack Haugrud.
December 22, 2017 Principal Deputy Solicitor Jordan releases Memo M-37049, allowing Twin Metals to renew its leases of Superior National Forest lands.

We now know that Interior was meeting with Twin Metals representatives and holding internal meetings about Twin Metals as early as mid April of 2017. (This would have been a little over a month before Rachel Jacobson of WilmerHale contacted Deputy Solicitor Daniel Jorjani regarding “a DC Bar Event” — which, in a previous post, I speculated might have teed up the lobbying effort.) An offsite or “ext.” meeting with Twin Metals representatives on April 18 seems to kick things off — though who attended an earlier meeting on April 6th about the Boundary Waters is unclear. The entry for another offsite meeting, on Friday June 16th, suggests that Benedetto’s counterpart at Twin Metals was Bob McFarlin, who was at that time Twin Metals Vice President of Public and Government Affairs.

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

It’s also worth noting on whose calendar some of Benedetto’s meetings are scheduled, and where possible I’ve added that detail to the timeline. It helps us get a sense of who is in the room with Benedetto, and just how many people in the upper ranks at the Department of Interior were involved in reversing the Obama-era protections.

For example, after Benedetto’s first external meeting with Twin Metals, she meets the very next day with Karen Hawbecker, who works for Deputy Solicitor Daniel Jorjani. This puts the matter in the Office of the Solicitor right away. Benedetto’s first meeting with lobbyists from WilmerHale on behalf of Twin Metals originates from the calendar of Gareth Rees, Executive Assistant at US Department of the Interior. WilmerHale is working at the highest levels of the Department. Another meeting with WilmerHale involves Benedetto and Katharine MacGregor, Deputy Assistant Secretary for Land and Minerals Management. According to the Western Values Project, MacGregor is a known “ally of the oil and gas industry” and an advocate for allowing oil pipelines to pass through national parks.

Progress.

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

From Caval to Kalorama

Kalorama

The Washington, D.C. mansion rented by Jared Kushner and Ivanka Trump.

We know this much. In December of 2016, just after the election, Chilean billionaire Andronico Luksic Craig bought the Kalorama Triangle mansion that Jared Kushner and Ivanka Trump now rent in Washington, D.C.. Just about six months later, records show, the Department of Interior began drafting the December 22nd, 2017 memo that would reverse Obama-era protections for the Boundary Waters and renew the lease of lands in Superior National Forest held by Twin Metals, a wholly owned subsidiary of Antofagasta Plc, the mining conglomerate controlled by the Luksic family. Headlines have hinted at corrupt dealings, as I’ve noted in previous posts, but no hard evidence has come to light.

Maybe it’s all just a happy coincidence of the kind that frequently befalls the world of billionaires, mansions, and yachts. In any case, Andronico Luksic Craig, Jared and Ivanka’s landlord, is clearly a master of such coincidences. Journalist Horacio Brum dubs him “el gran titiritero de Chile,” the great puppetmaster of Chile. He is “a man who does not need to do politics,” writes Brum, “because he makes politicians.” The role Andronico Luksic Craig played in the scandal known in Chile as “el Caso Caval” — The Caval Affair — is illustrative.

The Caval Affair involved a $10 million loan for a shady real estate scheme undertaken in late 2013 by Natalia Compagnon, the daughter-in-law of Chile’s president, Michelle Bachelet, and 50 percent owner of a company called Sociedad Exportadora y de Gestión Caval Limitada. El Caso Caval was a drawn out and complicated affair, and charges of corruption and influence peddling would dog Compagnon and the Bachelet family for years. Just one feature of the scandal needs to concern us at the moment, and that’s the timing of the loan itself.

In the months immediately preceding Bachelet’s election, Compagnon had been trying to secure a line of credit for her company to purchase three plots of land in Machalí, in the O’Higgins Region in central Chile. Compagnon and her husband, Sebastian Davalos Michelet, met with the Vice President of Banco de Chile to discuss the project on November 6th, 2013. This was about ten days before the elections, which were scheduled for November 17th. The loan was approved on December 16th, 2013, just a month after Michelle Bachelet was elected to the presidency. The Vice President of the Banco de Chile who made these timely financial arrangements for the daughter-in-law of the new president elect was none other than Andronico Luksic Craig.

This time-lapse illustration produced for the news organization 24 Horas lays out the whole scandal in less than three minutes. Even if your Spanish is rusty, you can follow the story. Luksic first appears around 1:26.

The pattern looks familiar. When questioned about the loan, Luksic Craig at first denied meeting the young couple more than once. (This is classic Luksic, who claims never to have met his first family tenants, and only to have said hello to Trump himself once, at a Patriots’ football game in 2012.) Only later did he admit to various meetings and contacts between him and Compagnon, including one the day after Bachelet won the election. As the scandal grew, Andronico Luksic Craig managed to retreat back into the shadows and to keep himself and the Luksic family out of the headlines.

So far, the almost daily revelations of Jared Kushner’s far-flung attempts to bail out his family’s foundering real estate empire have not turned up anything that connects Kushner’s business troubles to Chile’s Grupo Luksic or the Luksic family. But it would not be terribly surprising to learn that there is more to the Kushner story and that Kalorama mansion than Luksic Craig claims. The president’s son-in-law is a quo looking for a quid, and when it comes to making that sort of delicate arrangement, Andronico Luksic Craig appears to be a real pro.

A Quick Update on MCRC v. EPA at the Sixth Circuit (With Several Additional Updates)

EagleTrucksAAA

Ore trucks from Eagle Mine.

I’ve been doing my best to keep track of developments in Marquette County Road Commission v. EPA, the litigation over County Road 595 in Michigan’s Upper Peninsula. CR 595 was conceived and planned as a haul route from Eagle Mine to Humboldt Mill. From the outset, the project was a cause of public contention. As plans to cut through wilderness and destroy wetlands to build the road met with objections from the permitting authorities, the companies operating Eagle Mine — first Rio Tinto, then Lundin Mining — stayed on the sidelines, or worked quietly behind the scenes, leaving the people of Marquette County to slug it out with the federal government, and with each other.

The latest entry in the CR 595 legal saga looks like a win for the EPA, or at least a point in its favor. Last week, on Thursday, March 1, Ellen Durkee, the DOJ attorney representing the EPA, submitted a one paragraph letter to the U.S. Court of Appeals for the Sixth Circuit about a Ninth Circuit case called Southern California Alliance of Publicly Owned Treatment Works v. EPA. This is another piece of litigation over Section 402 of the Clean Water Act.

The plaintiff in this case was making an argument similar to that made by Mark Miller, the Pacific Legal Foundation attorney representing the Marquette County Road Commission before the Sixth Circuit: that EPA objections were tantamount to a permit denial (or what Miller insisted on calling a “veto”). If we follow Miller’s argument, the Marquette County Road Commission would have had no recourse after the EPA weighed in on its plans. In administrative legal parlance, the EPA’s objections to the Road Commission’s permit application would constitute “final agency action,” and could therefore come up for review by the court.

But in Southern California Alliance, writes Durkee, “the Ninth Circuit explained that under the statutory scheme, EPA objections are not functionally similar to a permit denial and that a challenge to EPA objections is premature.” That decision, made back in April of 2017, would seem to lend more support to the federal government’s position, that EPA objections merely constitute an “interlocutory step.” There is nothing final about them at all. So when it came to the permit application for CR 595, the Michigan DEQ still had three options: grant, deny, or do nothing. This was a point Judge White highlighted when she questioned Miller about the word “veto” during oral argument before the Sixth Circuit.

There was a new development in the Ninth Circuit case just last month, which is what prompted Durkee’s letter to the Sixth Circuit. On February 20th, the Supreme Court declined a petition to review the Ninth Circuit decision in Southern California Alliance. This means the Ninth Circuit’s ruling stands, and it might help bolster the EPA’s argument in the Sixth Circuit. It also suggests that the Supreme Court would probably not be favorably disposed toward a new petition for review on a point of administrative law it has just left up to a lower court. Miller, who has vowed publicly to take this case to the Supreme Court if the Road Commission does not prevail at the Sixth Circuit, might have to check his ambition.

Update: A Decision. On March 20th, 2018, the Sixth Circuit agreed with and affirmed the district court’s decision to dismiss the Road Commission’s complaint. Miller’s argument that EPA objections were tantamount to a “veto” and constituted final agency action failed to win over the three judge panel. “Though the Road Commission characterizes EPA’s objections as a ‘veto,’ the facts show that EPA’s objections did not end the Road Commission’s pursuit of a Section 404 permit. To the contrary, when EPA lodged objections, the permit review process continued precisely as directed by statute.” Given what I say here about Southern California Alliance, this looks like the end of the road.

Another Update. 9 April 2018. A story by Cecilia Brown in the Mining Journal suggests this case may take yet another turn. Dissatisfied with the March 20th decision by the three judge panel, the Road Commission is now asking for an en banc hearing at the Sixth Circuit. And if that doesn’t work out, they have “authorized” the Pacific Legal Foundation to seek review at the Supreme Court. For reasons I suggest above, I think it’s unlikely the Supreme Court will grant certiorari (or review the case). So far as I can tell from the docket, the Road Commission had not yet filed a petition with the Sixth Circuit requesting en banc review.

Yet Another Update. On May 2nd, Michael J. Patwell of Clark Hill , PLC and Mark Miller of the Pacific Legal Foundation filed a petition for an en banc hearing at the Sixth Circuit. This would bring the Road Commission’s case against the EPA before all the judges in the Circuit, and ask them to revisit the March 20th decision by the three judge panel.

The petition acknowledges that “this Court rarely rehears a case en banc” but then tries to argue that this case involves “an exceptionally important question of federal jurisdiction.” Oddly enough, the petition does not back down from the argument that EPA objections to the Road Commission’s permit “crystalize into what amounts to a veto” — an argument the Sixth Circuit panel met with skepticism at the hearing, then explicitly rejected in its opinion. So an en banc hearing at the Sixth Circuit would seem unlikely.

Petition for En Banc Hearing Denied, 29 May 2018. Today, Beverly L. Harris, the En Banc Coordinator for the Sixth Circuit, notified Mark Miller of the Pacific Legal Foundation that his petition for an en banc hearing has been denied. This comes as no surprise. The original three-judge panel found no fault with their decision, observing that “the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc.” As I noted back on April 9th, there are reports that the Marquette County Road Commission has authorized Miller to pursue this matter to the Supreme Court. After not a single judge took Miller up on the en banc review, it seems unlikely that the nation’s highest court would find anything irregular or meriting review here.

Mandate issued. On Thursday, 7 June 2018, the Sixth Circuit issued a mandate in MCRC v. EPA. This suggests, among other things, that Pacific Legal Foundation’s Mark Miller did not seek a stay of mandate — which he might have done were he ready to petition the Supreme Court.

A Comment on the Aquila Back Forty Wetland Permit

AquilaWetlandMap

An Aquila Resources map outlines the wetlands that will be impaired by its open pit sulfide mine on the Menominee River.

Earlier this morning, I sent this comment on the Aquila Resources Back Forty Wetland Permit to the Michigan Department of Environmental Quality. Public comments may be submitted here until February 2nd.

To the MDEQ:

You have probably already received a number of comments on the Back Forty Mine wetland permit application from people who live out of state, as I do. Some of those opposed to sulfide mining on the Menominee River live on the Wisconsin side, just across or downstream from the proposed mine site. Others, across the country and around the world, are deeply concerned about the cumulative effects the current leasing, exploration, and sulfide mining boom around Lake Superior will have, and are alarmed to see federal and state regulatory agencies abdicating their responsibilities to the American public in order to do the bidding of foreign mining companies.

Denying the wetland permit is the only prudent and responsible course for MDEQ to take.

As the organization American Rivers noted when it placed the Menominee River on its list of “most endangered” rivers in 2017, the Aquila Resources Back Forty project poses a “significant threat” of acid mine drainage to the river, and to the “cultural and natural resources of the Upper Peninsula, Wisconsin, and the Great Lakes Region.” Allowing Aquila to destroy or compromise area wetlands to construct its mine will only heighten the risk of large scale environmental catastrophe.

The risk is compounded by both regulatory and scientific uncertainty. As you are well aware, the Menominee Tribe maintains that the MDEQ lacks authority to issue this permit, because under provisions of the Clean Water Act the Menominee River and its wetlands are federal waters. This question remains unsettled. In the meantime, a third party, independent review of Aquila’s wetland permit application found errors and inconsistencies regarding the company’s findings on groundwater drawdown and the mine’s feasibility analysis. The wetland permit application you are considering is either flawed, because the people who filed it are incompetent, or misleading, because they have something to hide.

Deceit might be Aquila’s best strategy at this point. The Back Forty project has no claim to social license — none. The Menominee and other Wisconsin tribes have been adamant in their opposition. Local residents are overwhelmingly opposed as well. Of the 90 people who had the opportunity to speak at the January 23rd public hearing in Stephenson, only 4 could muster an argument for the mine, mainly because they put stock in the vague promise of “jobs” made by mining proponents. The rest — 86 out of 90, or 95 percent — stood in opposition to the mine.

Even if Aquila is not deliberately misleading the MDEQ and the public, the Canadian company has demonstrated time and again that it is not a responsible steward of Michigan or Menominee lands. In archaeological surveys of the region, for instance, Aquila claims to have uncovered nothing of “historical significance.” That is telling. These surveys have found nothing because they fail, or refuse to see, the significant Menominee history and culture that is right in front of their eyes. As tribal members have made repeatedly clear, Menominee history, ancestry, and culture begin and end in the river, the land, and the forest. What is historically significant or meaningful is not merely a collection of artifacts; it is a way of life and a deep connection to place. The Back Forty Mine threatens to destroy that connection.

In sum, the wetland permit application is flawed, the company has no social license to operate, and allowing the Back Forty to go forward would violate the public trust.

Postscript: On Monday, 4 June, Michigan DEQ Director Heidi Grether granted this wetlands permit, despite the DEQ’s own findings that the Aquila Resources project will likely cause “an unacceptable disruption to the aquatic resources of the State…and that the activities associated with the project are not consistent with the permitting criteria for an acceptable impact to the resources regulated under Parts 301, Inland Lakes and Streams, and Part 303, Wetlands Protection.” The permit DEQ issued — over its own objections — includes 28 pages of special conditions. It’s unclear why the DEQ did not simply deny the permit, as its findings warranted and in keeping with EPA objections to the Aquila application. More here.

Another Note on the Boundary Waters Reversal

Jorjani Calendar

A 25 July 2017 entry from Daniel Jorjani’s calendar shows a meeting with Antofagasta Plc on the Twin Metals project.

One point I hoped to get across in Monday’s post about the Boundary Waters reversal has to do with journalism, or, more broadly, with storytelling. Just to highlight: scandal-mongering that generates clicks doesn’t necessarily get at the more prosaic and more complex truth of the story, and may end up doing a disservice. In the case of the Boundary Waters reversal, it is tempting to focus on the story of Chilean billionaire Andronico Luksic Craig and his Washington, D.C. tenants, Ivanka Trump and Jared Kushner. Was Luksic Craig’s purchase of the mansion where Jared and Ivanka now live an opening bid? Was the reversal connected to the rental?

This story of the rich and famous still merits investigating, but it carries with it a whole set of ideas — exaggerated and somewhat cartoonish ideas — of what corruption looks like: foreign billionaires, mansions, nepotism, winks and nods (remember what Luksic Craig said about meeting Trump at the Patriots’ game: “lo saludé.” “I said ‘hi’”).  All of those elements are certainly in play here, and they are part of what makes this administration appear so unabashedly corrupt and downright villainous.

At the same time, the story of Luksic Craig and his D.C. tenants could turn out to be a red herring, or what nowadays people call a nothingburger or fake news. Besides, there’s another, more immediately credible story that’s just there for the telling. What it lacks in tabloid glamour it makes up for with evidence. It unfolds among the banalities of meeting rooms, conference calls, memos, and after work events. This is the story Jimmy Tobias pursues in an excellent piece in the Pacific Standard, which I had not read before writing my post (and which, after reading, I linked to in a postscript).

Tobias beat me to the punch on the FOIA request, and obtained Principal Deputy Solicitor Daniel Jorjani’s calendar from May through December of 2017. He identifies two meetings about the Twin Metals project. The first is on June 14, 2017, with Raya Treiser and Andy Spielman of WilmerHale, the law and lobbying firm, on behalf of Antofagasta Plc.

Spielman is the Chair of WilmerHale’s Energy, Environment and Natural Resources Practice, and his name appears on the calendar heading, so we know that this is a high priority matter for the lobbying firm and presumably for the Department of Interior. And Treiser comes directly from the Department of the Interior, where she served under President Obama. She helped to “streamline” permitting on large infrastructure projects, and worked on the reform of offshore drilling regulations and energy development in Alaska. Now, as her biography on the WilmerHale site informs us, she has “successfully leveraged her substantive knowledge and insight into government processes.”

The second meeting is directly with Antofagasta Plc: the Chilean mining company comes to the Department of Interior to discuss its Minnesota claim, and it appears the Department rolls out the red carpet. WilmerHale had done its work. In addition to Principal Deputy Solicitor Jorjani, thirteen administration officials are in attendance, representing the highest reaches of the Department of Interior, the Bureau of Land Management, and the Environmental and Natural Resources Division of the Department of Justice. As Tobias notes, no conservation groups were invited to discuss the reversal with the Department of Interior. This was a conversation for insiders only.

At the center of this story is not a mansion, but a revolving door (and if you are not familiar with Bill Moyers’ short video essay on the subject, you should be). This feature of the story becomes even more apparent when we look at a couple of other meetings on Deputy Solicitor Jorjani’s calendar that Tobias didn’t flag but are connected with the Boundary Waters reversal. One is a Friday, May 26 call with Rachel Jacobson of WilmerHale, regarding a “DC Bar Event”; this call or this event might well have provided an opportunity to tee up the Twin Metals issue. It is the first contact WilmerHale makes with Principal Deputy Solicitor Jorjani— and who should they choose for that task but Jacobson, who held Jorjani’s job of Principal Deputy Solicitor under the Obama administration.

Then on Thursday, September 7th, when work on the reversal memo is presumably well underway, there is an internal meeting on Twin Metals: Jorjani with Jack Haugrud, who was Acting Secretary of the Interior until Zinke’s appointment, and Joshua Campbell, an Advisor to the Office of the Solicitor. Campbell is profiled here, on Western Values Project “Department of Influence” site, documenting the revolving door between special interests and the Department of Interior.

In these meetings, the public interest does not even come into play.

Postscript: Today, as I was writing this post, the Washington Post reported that the Forest Service will cancel a planned environmental impact study and instead conduct an abbreviated review of the Obama-era proposal to withdraw the Superior National Forest lands near the Boundary Waters from minerals exploration for up to 20 years. The story also appears in the Star Tribune. Things are moving fast now, and pressure is mounting.