Category Archives: The Boundary Waters Reversal

Another Political Appointee’s Calendar Among New Boundary Waters Documents

In response to my Boundary Waters FOIA case, the US Department of the Interior today released another 446 pages. I put them online here.

This release includes the 2017 calendar of Timothy Williams, a political operative who came to the Department of Interior via the Koch-backed Americans for Prosperity and Trump’s 2016 campaign in Nevada. “Although Williams doesn’t appear to have experience working on issues that fall within the purview of Interior,” notes the watchdog Department of Influence site, “the department’s press release announcing his hire advertises that Williams is an ‘avid sportsman and accomplished hunter and fisherman.'” Williams is now Principal Deputy Director at the Office of Intergovernmental and External Affairs at the Interior Department. Last year he was the subject of an ethics complaint filed by the Campaign Legal Center.

According to an email accompanying it, Williams’ calendar was scheduled to be released and posted (presumably to the Department’s calendar site) on August 31, 2018, but I don’t see it there and can’t find it elsewhere online. Maybe its release was held up for some reason. In any case it’s new to me, and even at first glance, Williams calendar will allow me to make some additions to the Twin Metals timeline. For example, a June 22, 2017 meeting Williams had with Chad Horrell of the DCI Group (on behalf of Sportsmen for the Boundary Waters) and a “quick huddle” on December 21, 2017 to discuss the Solicitor’s reversal of the M-Opinion along with the Migratory Bird Treaty Act and the signing of a Secretarial Order.

Taking a broader view, what I said the other day about the last release can also be said of this one: this looks more like a document dump than a meaningful and organized response to my request. The release includes another multiple page spread sheet of FOIA requests sent out for review by Justin Wilkinson from the Secretary’s FOIA Office under the FOIA Awareness policy. The only noteworthy thing about this item might be that it demonstrates, once again, that the claims about custody and control advanced by Interior in the initial stages of this case are claims of convenience, and the firewall between the Office of the Secretary and the Solicitor’s Office is a lot more permeable than they pretended.

The Office of the Solicitor is withholding 16 pages in full. It’s possible from the emails included here to guess what some of those documents are: for example, a “proposed agenda” attached to an August 28, 2018 email from an attorney at the DOJ’s Environment and Natural Resources Division is probably among the withheld documents. But I can’t be sure, of course, because the letter from the FOIA office specifies only that some documents are being withheld, not which documents. I’m also unsure whether these documents or other redactions and documents withheld under Exemption 5 will be covered by the Supreme Court’s pending decision in US Fish and Wildlife v. Sierra Club; and from what I am reading, it’s likely that decision will protect deliberative process at the cost of greater transparency.

Read more about the Boundary Waters reversal here

Some New Boundary Waters Documents, Many Others Still Under White House Review

Yesterday I complained about delays in document production; today a batch of delayed documents arrived. I’ve posted them to documentcloud here.

This appears to be the September production described in the October 6 Joint Status Report, which was held up because some pages required reviews by the White House and the Office of the Secretary. The letter that accompanies this release provides a little more information and tells a slightly different story.

Whereas the Joint Status Report said 6 pages were still awaiting White House consultation, this letter brings that number up to 111 pages. What’s in those pages, and who at the White House needs to review them, remains unclear; but it looks as if when it comes to Antofagasta’s leases near the Boundary Waters, White House involvement with the Office of the Solicitor is more extensive than previously acknowledged.

I’m just starting to review the 583 pages released. They include Gareth Rees’ 2017 calendar, which has already been released; a long list of FOIA requests attached to an email dated July 11, 2018, asking those whose names appear in the requests to review and comment within 72 hours, in keeping with the newly established Awareness Process for FOIA Productions. With the exception of that email, which is of some interest, given the controversy over the Awareness Process, these pages look more like a document dump than an organized and meaningful response to my request. But I plan to go through them and make what additions I can to the timeline.

And even a quick, initial review turns up a few highlights: a list of prohibited holdings (or investments) to prevent conflicts of interest, issued by the Department of the Interior Ethics Office, and which Doug Domenech appears to have greeted with some alarm: “Wow. These lists seem substantially longer than the one that was given to me before. Are they changing?” I posted the list on Twitter just a little while ago. I don’t understand why Antofagasta is not listed along with Duluth Metals and Franconia Minerals.

Doug Domenech counts as a person of interest in my investigation. He is one of the first people to brief the White House on Twin Metals, in June of 2017, just one month after Antofagasta executives fly up from Chile for meetings at Interior and the White House. He does not appear to have been in the White House loop in June of 2018, however, as the White House prepared for President Trump’s visit to Duluth, Minnesota. (More on that here.)

The only trace I’ve seen of those preparations is included in this document production: a June 15, 2018 email from Daniel Jorjani to David Bernhardt, forwarding the Twin Metals Information Memorandum that the Bureau of Land Management prepared for “the Duluth trip.”

The Information Memorandum is not included in this release; perhaps those are the 5 pages withheld in full. But sometime between June 15 and June 20, someone in the White House must have worked their way through it and developed talking points for the announcement Trump made on that trip: “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.”

The June 2018 Information Memorandum must have sketched out a plan to “rescind the federal withdrawal.” That wasn’t just a throwaway line, but one Trump read directly from the teleprompter to big applause. As we know, the rescission would not officially happen until September of that year, when Secretary of Agriculture Sonny Perdue canceled the two-year scientific study. His explanation that the study had yielded no new scientific information appears to have already been a foregone conclusion for a few months.

Documents Delayed and Permits Accelerated: A Critical Minerals Play?

Is the Trump administration preparing to invoke emergency powers in order to accelerate permitting for Antofagasta’s sulfide mining project near the Boundary Waters? Listen to what Pete Stauber and Mike Pence were saying in Hibbing the other day.

It has been over two months — 78 days, in fact — since the Department of Interior has released any documents in response to my FOIA lawsuit, despite a February 7, 2020 court order requiring regular monthly releases of 750 pages. While I consider options to get the process back on track, I am also trying to figure out what the delay might mean.

An October 6, 2020 Joint Status Report set out some reasons for the delay.

It’s hard to know what to make of these representations. Let’s start with the September releases, since the reviews mentioned in the connection with the October releases sound a little more standard (and are for that reason even more opaque).

In a letter dated October 31, 2019, I was told by Department of Interior Counsel that all requests for agency records related to Secretary Zinke “must” go through the Secretary’s office, so the Secretary’s records were not, and would not ever be, included in searches the Office of the Solicitor. How, then, does the Office of the Secretary claim “equities” in documents from the Office of the Solicitor? It looks as if the firewall they tried to erect between the two offices didn’t hold up or was nothing more than a temporary blind. The back and forth we had over Tax Analysts v. Department of Justice, a landmark case regarding “custody” and “control” of responsive records, probably needs revisiting.

That leaves the six pages being sent to the White House for “consultation.” What’s in those six pages, and who is undertaking the review? One guess is that they concern communications between Daniel Jorjani and Michael Catanzaro, who until April 2018 was Special Assistant to the President for Domestic Energy and Environmental Policy. Catanzaro met regularly with then-Deputy Secretary of the Interior David Bernhardt, and he appears to have acted as a sort of White House liaison on the Twin Metals matter.

A front page story in the June 26, 2019 New York Times has Catanzaro meeting with Antofagasta executives as early as May of 2017, and the timeline shows him meeting with Daniel Jorjani about the “Minnesota project” in August of that same year. Stephen Vaden, a political appointee at USDA, also attended that meeting and Vaden appears to have stayed in the Minnesota loop to keep Secretary of Agriculture Sonny Perdue apprised of legal developments. (For the next year or so, Perdue would bide his time, lie and equivocate, before abruptly canceling a planned two-year scientific study to determine whether federal lands bordering the Boundary Waters should be withdrawn from mineral development.)

Catanzaro has returned to lobbying for oil, gas, and mining clients, and it seems a little far-fetched to think the hold up might be due to White House sensitivities around Vaden, whose nomination to the United States Court of International Trade is now awaiting a vote in the Senate. Why, then, the consultation at the White House?

Consider that this delay might not less about protecting persons, or political appointees, and more about protecting a position that the White House, the Solicitor’s Office, the Secretary of the Interior, USDA and Antofagasta Plc have jointly developed — seemingly in tandem with their efforts to renew Antofagasta’s leases in northern Minnesota. The position is simply that Twin Metals will be a source of critical minerals.

Only two days after Daniel Jorjani met with Catanzaro and Vaden in August of 2017, the Department of Interior hosted the CEO Critical Minerals Roundtable; and though Antofagasta was not among the mining companies represented on that occasion, the company changed the description of its Twin Metals project to include cobalt — on the list of “critical minerals” — for its 2017 Annual Report. (The 2015 and 2016 Annual Reports make no mention of cobalt.) Immediately after Interior published its list of critical minerals, Gary Lawkowski, who is now Deputy Assistant Secretary for Land and Minerals Management and was then Daniel Jorjani’s Deputy, recommended a public relations strategy that positioned Twin Metals as a critical minerals play. “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.” And, as I mentioned in the FOIA webinar I gave in July, Interior has now started to redact Lawkowski’s use of the phrase “critical minerals” in Twin Metals document releases, which indicates some new sensitivity on the point.

This might help explain the legal reviews holding up the October production as well. But the real issue here doesn’t have to do with the documents I’m expecting. It has to do with how the White House, the Department of Interior, and other agencies are developing the critical minerals position on Twin Metals. We can get a sense of where things seem to be heading from the speech Representative Pete Stauber gave to warm up the rally crowd in Hibbing, Minnesota for Vice President Mike Pence just the other day:

Plaid jacket jingoism. But note especially the way Stauber deliberately conflates “copper-nickel mining” with “strategic metals mining,” and organizes the Twin Metals project under emergency powers the president arrogated to himself in the September 30 Executive Order on critical minerals. Pence softened things a bit when he elaborated on the theme, but he told the crowd that the Executive Order “cuts burdensome regulation and eliminates permitting delays.”

The argument Stauber and Pence were starting to make in Hibbing appears to be that the White House can invoke emergency powers in order to accelerate or even sidestep environmental review on behalf of Antofagasta, because Twin Metals is a source of critical minerals and therefore covered by Executive Order.

The Order asks the Secretary of Energy to identify “all such regulations that may warrant revision or reconsideration in order to expand and protect the domestic supply chain for minerals” and to propose changes within 90 days. That puts us at the end of December, and, if current polls hold, right near the end of Trump’s presidency. In the meantime, the order also authorizes the Secretary of the Interior and other agency heads to “use all available authorities to accelerate the issuance of permits and the completion of projects in connection with expanding and protecting the domestic supply chain for minerals.” If Trump loses Tuesday’s election, they’ll have just a couple of months to get this done.

Read more about the Boundary Waters reversal here.

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

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

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

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

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

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

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

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

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

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

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

An Appeal to the State Department

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

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

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

I posted a copy of my appeal on Twitter.

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

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

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

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

Selective Evidence and the Office of the Solicitor

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

Read more about the Boundary Waters reversal here.

 

 

 

 

Did Interior Abandon NEPA for Antofagasta?

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

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

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

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

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

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

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

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

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

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

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

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

Read more about the Boundary Waters reversal here.

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

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

We don’t know why.

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

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

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

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

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

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

The new documents are here.

Read more about the Boundary Waters reversal here.

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

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

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

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

Heavy-Handed Assertions of Privilege

 

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

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

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

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

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

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