Tag Archives: Antofagasta

A Small Set of Jorjani Boundary Waters Documents

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

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

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

perfectSalazar

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

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

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

lawkowskimagallanes

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

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

Read more about the Boundary Waters reversal here.

A Debate Over Environmental Review? New Boundary Waters Documents

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

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

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

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

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

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

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

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

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

Read more about the Boundary Waters reversal here

An April Set of Boundary Waters Documents, or, Mr. Altikes Comes to Washington

Back on February 7th, in a Joint Status Report filed with the US District Court of the District of Columbia, the Department of Interior agreed to conduct additional searches in response to my Freedom of Information Act request regarding the renewal of mineral leases near the Boundary Waters held by Chilean conglomerate Antofagasta, Plc. This was a tacit admission that the initial searches the Office of the Solicitor conducted (and which produced about 6,000 pages of records) were inadequate, as I complained to the court. Specifically, those first records searches appear to have deliberately excluded any search terms having to do with the Chilean side of this story. Now a new release of documents — just over 1,000 pages, and the first in what is supposed to be a series of monthly releases — helps us fill in the Chilean picture just a little more and add more detail to the timeline.

These documents (in five parts, 1, 2, 3, 4, 5) are now posted on documentcloud.org along with the other Boundary Waters documents I’ve obtained through FOIA.

The new records are mostly emails, all very thoroughly redacted, from the files of Karen Hawbecker, Acting Deputy Solicitor, Energy and Mineral Resources. They include some documents that came along as attachments — briefings, drafts of letters, and so on. As the timeline shows, Hawbecker was in the Twin Metals loop as early as February 7, 2017, just a little over two weeks after the inauguration, and, as these new records remind us, she stayed in the loop.

In fact, one of the more striking records included in this new release takes us well beyond the 2017 decision timeline I’ve been tracing (and beyond the scope of my initial records request). It’s a Building Admittance Request form dated May 8, 2018, that shows Hawbecker meeting with Daniel Altikes, Vice President of Antofagasta, Plc. Along with him is Kevin Baker, Vice President of Legal Affairs, Twin Metals Minnesota, and two lobbyists from WilmerHale.


This meeting comes less than a week after Mitchell Leverette of the Department of Interior notified Kevin Baker that he was reinstating the leases near the Boundary Waters, on May 2, 2018.

Up until now, we knew that Antofagasta had a couple of meetings with high level officials at the Department of Interior about their mineral leases in Minnesota. Now it appears that Altikes and the Chilean company had much easier and more frequent access to Trump administration officials than I ever realized. So, for example, we find Altikes on the calendar of then-Assistant Secretary of Land and Minerals Management Joseph Balash, meeting with Interior officials on October 3, 2018 along with Twin Metals CEO Kelly Osborne.

Altikes3Oct2018

This was just about a month after Secretary of Agriculture Sonny Perdue announced that USDA had cancelled a two-year scientific review of a proposed mineral withdrawal for the Rainy River Watershed, removing “a major obstacle to mineral leasing in Minnesota.” The topic of this October 2018 meeting with Altikes and Osborne was: “to share our hopeful schedule/milestones for the next 24 months.” Interior and Antofagasta are now working in synch.

A profile of Altikes in Vanguard magazine gives him all the credit:

…it was the challenge posed by American regulatory regimes that proved the most daunting. Five years after laying the legal groundwork for a massive mining venture, the project — totaling hundreds of millions of dollars of investment — got challenged by U.S. regulators.
For foreign-born lawyers like Altikes, such circumstances — navigating one of the world’s most confounding and complex regulatory structures — would’ve been reason enough to quit and cut the losses.
Owing to his extensive experience working with American firms, Altikes knew that his only recourse was to immerse himself in the head-spinning legal waters of Washington, D.C.
In time, he started interfacing directly with governmental representatives….

Another, earlier example also leads us to Sonny Perdue’s decision to cancel the two-year scientific study. On September 28, 2017, Altikes met with Vincent DeVito, who was then Counselor to the Secretary for Energy Policy. The April documents suggest how this meeting may have come about.

On June 15, 2017, Karen Hawbecker drafted a letter to Ian Duckworth, Chief Operating Officer of Twin Metals Minnesota, and circulated the draft internally for comment. It is a reply to a letter Duckworth sent on May 26, 2017, the contents of which we can infer from Hawbecker’s reply.* Duckworth had complained about the proposed mineral withdrawal of Superior National Forest and asked, or demanded, that the US Forest Service cancel its application for withdrawal, or that the Bureau of Land Management deny the Forest Service’s application. In her response, Hawbecker also acknowledges Duckworth’s request for a meeting with then-Secretary of the Interior Ryan Zinke and directs Duckworth to contact the administrative assistant for Vincent DeVito and schedule a meeting with him.

DeVito’s 2017 public calendars are not searchable, so they have to be scanned one day at a time. I have not yet come across a meeting with Duckworth on them, but the September 28 meeting with Altikes — the top lawyer for Duckworth’s Chilean boss — obviously followed from Duckworth’s complaint. (As if to prepare for the meeting with Altikes, DeVito also met with Twin Metals lobbyists from WilmerHale three days earlier, on September 25.)

What prompted Duckworth to complain about the proposed mineral withdrawal on May 26 is also clear and worth pointing out: the testimony of Secretary of Agriculture Sonny Perdue, just one day earlier, at a hearing on the US Forest Service Budget held by the House Committee on Appropriations.

At that hearing, Representative Betty McCollum asked Perdue along with US Forest Service chief Tom Tidwell whether the Forest Service would let the two-year federal scientific study of sulfide mining in Superior National Forest go forward. Secretary Perdue reassured Representative McCollum that he and Secretary Zinke had “already met about this” and he would “absolutely” allow the scientific study to proceed.

He did not, of course, and the Forest Service still refuses to release the findings of the incomplete study. They’ve issued a wholly redacted copy, and now they claim the study includes only “deliberative pre-decision materials” that are not suitable for public release and would only create confusion if they were released.

It remains unclear why Perdue went back on his word and abruptly cancelled the US Forest Service study in September of 2018. We can see that Hawbecker cc’d USDA on her June 2017 reply to Duckworth. Just months later, an executive from Antofagasta would have the high-level meeting Duckworth sought the day after the Secretary of Agriculture said he would listen to the scientists.

*CORRECTION 26 April 2020. In my latest review of the documents produced so far, I found a copy of the Duckworth letter, written the day after Sonny Perdue testified that he would allow the scientific study to go forward. The letter is addressed to both Ryan Zinke and Sonny Perdue. (Hawbecker’s reply mentions only Zinke. We don’t know if USDA replied, or if Hawbecker’s was the only reply.)

The letter accompanied a four-page Twin Metals legal memorandum.

Read more about the Boundary Waters reversal here.

On the Boundary Waters, Top Interior Department Lawyer Gets the Historical Record Wrong

Newspaper accounts and congressional testimony from 1966 suggest that Solicitor of the Interior Daniel Jorjani overlooked — or deliberately suppressed — critical evidence when he ruled, in 2017, that Antofagasta Plc had a right to renew its mineral leases near the Boundary Waters.

About a month ago, and just two days after his Senate confirmation as Solicitor of the Department of the Interior, Daniel Jorjani appeared before the House Natural Resources Committee to testify about his agency’s failure to cooperate with congressional oversight requests.  A highlight of that hearing came when Representative Alan Lowenthal pressed Jorjani about the renewal of mining leases near the Boundary Waters.  Jorjani was politically motivated, Lowenthal contended, and acted without regard for “history, law, and common sense.”

To help drive home the point, Lowenthal produced a 1966 Department of the Interior press release that directly contradicts one of the key legal arguments Jorjani made: that the terms of the original 1966 International Nickel Company leases “govern” the two leases currently held by Antofagasta, Plc, and — this is critical to his argument — that renewal of the leases was not conditioned on bringing the mine into production: “the historical record of the 1966 lease implementations,” Jorjani wrote, “show that production was not made a condition of renewal.”

In making this argument, which involves a tortured reading of renewal terms in Section 5 of the 1966 leases, Jorjani followed the lead of Antofagasta’s own legal counsel, Seth Waxman. Here, Waxman appears to have led Solicitor Jorjani astray. As Lowenthal points out, Jorjani is unable to account for the Department of the Interior’s own press release, issued the very day the leases were signed in 1966, which states unambiguously that the leases will be renewed “if the property is brought into production within the initial 20 year term.” What are we to make of this discrepancy? This is a question Lowenthal has been asking for two-and-a-half years.

In the exchange that follows, Jorjani says legal opinions about contracts are “not driven by press releases” and offers some evasive, time-wasting thank yous for the question, but he fails to put the matter to rest. Here’s video cued to the start of Lowenthal’s time.

News reports about the lease signing only serve to strengthen Lowenthal’s point. A June 15, 1966 Associated Press story by George Moses reproduces the language of the Department of the Interior press release. Here, for example, is a detail from the story as it ran in the Fergus Falls, MN Daily Journal:

The twenty year condition appears to have been an uncontroversial part of the agreement, unlike royalty rates, which took until November of 1966 to approve. On November 14, 1966, the Star Tribune could still say “the situation in regard to copper and nickel taxation is cloudy,” and an article in the Star Tribune on December 22, 1966 makes it clear the subject is still being debated into the winter; but there is no indication of controversy over the lease renewal terms.

In the June 15th Associated Press story, Henry Wingate, Chairman of International Nickel Company, “said he expects the property to be producing within a few years.” He and others at International Nickel were confident — too confident, as it turns out. In a July 13, 1966 story in the Minneapolis Star, published just about a month after the lease signing, Wingate’s second in command, John Page, predicted they’d be in production “in three years, if everything goes right.”

Wingate and other executives at International Nickel were confident they could bring the Minnesota leases into production within the space of a few years because they had successfully brought a much larger mining operation into production in just four and a half years. In that case, they also had to build a town to house 4,000 workers and their families. (That is how the boomtown of Thompson, in Manitoba, Canada, came to be built.) Twenty years would have seemed like a cakewalk. Others felt assured. When John G. Harlan Jr. of the General Services Administration testified before the Senate in 1967, his understanding was that International Nickel “plan to get into the production” in Minnesota by the early 70s.

Wingate, Page, and Harlan were about to be disappointed and see their confidence deflated. Right around the time International Nickel signed its Minnesota leases, the company’s fortunes took an unexpected turn. Competition stiffened, as other producers began bringing less expensive nickel oxides and ferroalloys into production. Nickel miners struck at International Nickel’s Sudbury mine. In 1966, the strikes were violent; in 1969, they were disruptive. The early 1970s brought recession. International Nickel’s stock tumbled, and Wingate’s successor,  L. Edward Grubb, made it his policy to curtail new development. Wingate would die in 1977 without seeing the Minnesota leases he’d signed a decade earlier come into production.

For Jorjani’s reading of the 1966 leases to prevail, we have to ignore all this history — the issuing of the press release and contemporary news reports, the company’s false projections of confidence, the bottom-line effects of work stoppages and labor strife, the economic stagnation of the early 1970s, and the decision at International Nickel to cut back on new development. Surely this is all part of the rich historical record, and even this cursory review shows exactly the opposite of what Solicitor Jorjani claims.

Postscript, November 22, 2019. Nicholas Lemann devotes a few paragraphs to International Nickel’s 1974 acquisition of Electric Storage Battery (ESB) in Transaction Man: The Rise of the Deal and the Decline of the American Dream. It was the first “hostile” takeover (F.J. Port, ESB’s president, called it a “hostile tender offer made by a foreign company for all of ESB’s shares”).

The deal set a precedent, and helped set the pattern for a broader economic transition from industrial to financial capitalism. It also helps illustrate how far International Nickel had traveled in the short space of the eight years since it had acquired its Minnesota mineral leases in 1966.

By 1974, International Nickel Company was looking for steady and reliable sources of revenue to offset cyclical downturns in nickel, and ESB’s battery business seemed to offer that. After a hard fought battle, International Nickel won a Pyrrhic victory, purchasing ESB at an inflated price. The battery maker was losing money by 1981. Inco eventually broke it up and sold its parts.

Read more about the Boundary Waters reversal here

 

Interior Still Hiding the Role of Political Appointees — Update on the Boundary Waters FOIA Case

Interior’s latest responses to my FOIA complaint show that the Office of the Solicitor continues to protect political appointees from public scrutiny. 

Back in July, I filed a complaint against the U.S. Department of the Interior in the US District Court for the District of Columbia, saying Interior had violated the Freedom of Information Act and was wrongfully withholding responsive documents. After providing me with about 5,000 pages of documents in response to a FOIA request I’d made on January 19th, 2018, and promising a “rolling release” of more documents, Interior abruptly cut me off, failing to answer numerous emails and phone calls, and leaving me with no recourse but to ask the court to compel them to comply with the law.

After asking for an extension, which I granted, lawyers for Interior filed an answer to my complaint on Wednesday, October 15th. The following day, Judge Boasberg issued a minute order asking the parties to confer and submit a joint proposed briefing schedule by the end of this month. It seems the case is now ready to go forward, with Interior maintaining that my complaint is groundless.

In a bid to settle the whole matter once and for all, just a few days earlier, on October 10th, Interior released a new set of responsive documents. The decision letter that accompanied this release copies the DOJ attorney for the defendants and characterizes this as the “third and final” decision for this particular FOIA request.

So, the position of the Department of the Interior appears to be: we have given you everything you are going to get, and you should stop complaining. The main trouble I have with this position is that they haven’t even begun to give me the very documents I ask for in my FOIA request: namely, and this is the very first item in the request, “any communication sent and received by the Office of the Interior Secretary Ryan Zinke, including but not limited to any emails or letters sent and received directly by the Interior Secretary Ryan Zinke or on behalf of the Interior Secretary Ryan Zinke, regarding the Boundary Waters Canoe Area Wilderness, Antofagasta Plc, Twin Metals Minnesota,” and so on.  I’ve gotten nothing — zero, zip — to or from Ryan Zinke. Are we to believe that the Secretary of the Interior never communicated about a major reversal by his department of the previous administration? Nor have I gotten anything to or from Deputy Solicitor Daniel Jorjani, who signed the reversal, and whose communications I also asked for.

It’s pretty clear that Interior is protecting political appointees like Zinke and Jorjani from having to show their work — which is exactly what Jorjani has been trying to accomplish with his expansion of the FOIA awareness review policy at Interior. That is the thrust of reporting (like this and this) by Jake Holzman at Roll Call, and the reason why organizations like American Oversight, Earthjustice, and the Western Values Project have asked Interior’s Inspector General to launch an investigation of the awareness review process. It’s also an issue on which Jorjani may have misled the Senate during his confirmation hearing, prompting Senator Ron Wyden to ask that Jorjani’s confirmation be held up until it could be established whether he had perjured himself. (Despite Wyden’s effort, Jorjani was confirmed as Solicitor on September 24, 2019.)

What I’ve gotten, instead, is the work product of civil servants, career attorneys, not political appointees. Even that material has been revealing. With the documents provided so far, I’ve managed to put together a timeline of the work done at interior to reverse the Obama administration. The documents allow us to reconstruct an intensive lobbying effort led by WilmerHale that included visits by executives from Chilean mining conglomerate Antofagasta Plc and its subsidiary Twin Metals to the US Embassy in Santiago, Chile, the Department of the Interior, and the White House. It appears Antofagasta’s attorneys at WilmerHale even provided the blueprint for the M-Opinion, the reversal, that Daniel Jorjani eventually signed. Since I first put them online, these documents have also made their way into Congressional hearings and on to the front page of the New York Times.

The latest release of responsive records is yet another partial disclosure that keeps the work of political appointees out of view. The records come from Division of Mineral Resources attorney Brianna Collier. It’s the second batch of documents from Collier, and though they give us a little more detail into the reversal process, they are a dodge. I’ve added them to the online collection of Boundary Waters FOIA documents here.

All of the work product is heavily redacted, most of it totally redacted. Collier’s emails are more lightly redacted, and they show her at work on the draft of the Boundary Waters reversal as early as May of 2017, when she first prepares an outline of the new M-Opinion. She starts writing a draft in earnest after a meeting between Interior officials and Twin Metals executives on October 12th, 2017. She’s tasked with getting the thing done in the space of about a month, but others, like Jack Haugrud, appear to be calling the shots (as Collier makes clear on November 17th, when she writes to tell Haugrud she is “working away on editing the Twin Metals opinion according to your directions”).

Something notable happens that very evening, the new correspondence reveals. Haugrud becomes aware that Gary Lawkowski — a political appointee who at that time is serving as Counsel to Daniel Jorjani, and who worked with Jorjani at the Koch-affiliated Freedom Partners Chamber of Commerce — has been working on his own draft:

So it appears that there were, at one point, two drafts of the M-Opinion in circulation, one that Collier had been working on since first making an outline in May, and then another by political appointee Gary Lawkowski. Haugrud saw it as his job to reconcile them before forwarding the opinion to Daniel Jorjani for review. It’s not clear Lawkowski’s “ideas” made it into the final draft of the M-Opinion, or what those ideas were. When we next come across Lawkowski in the records we have so far, it’s December, and he’s circulating talking points about the reversal that put the focus on strategic and critical minerals. Does that tell us something about his ideas one month previous? If so, those political arguments never made it into the final M-Opinion.

Until we see more documents, and learn more about why this matter was a priority for the Trump administration, it will also remain unclear what role political appointees like Lawkowski, Jorjani, and Zinke played in the Boundary Waters reversal. This appears to be something they are trying to keep from the public. Why?

Read more about the Boundary Waters reversal here

A Motion in D.D.C. and Some Updates to the Twin Metals Timeline

A March 1, 2019 motion filed in Voyageur Outward Bound School et al. v. United States et al draws on the collection of documents I obtained through a Freedom of Information Act request to the Department of the Interior. The motion asks Judge McFadden of the US District Court for the District of Columbia to compel the completion of the administrative record. This is from the declaration filed together with the motion to compel:

During the week of February 11, 2019, Plaintiffs learned of a set of 4,490 pages of documents that Louis Galdieri had obtained from the Department of the Interior in response to a January 2018 FOIA request and had published online earlier that week (Galdieri FOIA Production). Mr. Galdieri is unaffiliated with Plaintiffs. After reviewing those thousands of pages of documents, Plaintiffs identified the documents attached hereto as Exhibits A–J as particularly relevant to the issues in this case.

As it now stands, the record before the court paints an incomplete picture. The Exhibits filed together with the motion include key documents from the FOIA production that now appear in the Twin Metals timeline. These documents show Interior officials working closely with lobbyists from WilmerHale, giving short shrift to environmental advocates and setting scientific findings aside, and meeting multiple times with executives from Antofagasta, Plc and Twin Metals Minnesota.

The FOIA production also offers evidence of coordination with the US Embassy in Santiago, Chile, where the CEO of Antofagasta met with the ambassador in late April of 2017, and with the Trump White House, where the Antofagasta CEO and his entourage may have had meetings as early as May of 2017.

Overall, the documents demonstrate clearly that the review of the Twin Metals matter undertaken at the Department of Interior was an exercise in a foregone conclusion. The goal from the outset was to reverse the Obama administration and deliver for the mining company.

The attorneys for the plaintiffs called out a some documents that had escaped my noticed. These now appear on the timeline. One document was not there because I could not figure out where it should fall in the chronology: it is dated  “April XX” of 2017. It is a copy of a Memorandum for the Secretary — namely, Ryan Zinke — from the Office of the Solicitor, heavily redacted on the grounds of attorney-client privilege.

The eight page memorandum is pretty clearly the same memo, or a draft of the same memo that Kathleen Benedetto forwarded to Zinke on April 25, 2017. That memorandum was developed from a Briefing Paper that had been in the works at Interior as early as February of 2017. The memo provides Zinke with “a set of options for reversing” BLM’s decision on Twin Metals before he meets with Representatives Tom Emmer and Rick Nolan the next day . Even though the XX in the date is not a Roman numeral but a placeholder, I’ve dated it April 20th, just to assign it a place in the timeline.

AprilXXSol

That redacted document helps bring Zinke into the picture. I’ve also added an October 12th, 2017 meeting between the Office of the Solicitor meets and Twin Metals Minnesota. We know about this meeting from an October 27, 2017 email sent by Briana Collier to Karen Hawbecker and Richard McNeer of the Office of the Solicitor. She reminds them that Jack Haugrud expects the Solicitor’s office to produce “Twin Metals M-Opinion Reversal Draft” in “4-6 weeks from when we met with Twin Metals on October 12th.”

This document might help clear up some confusion I had about how many times the Solicitor’s office met with Antofagasta executives. I had counted only the May 2nd and July 25th meeting with Antofagasta CEO Ivan Arriagada, but a March 1, 2019 letter from three House leaders — Alan Lowenthal, Raul Grijalva and Betty McCollum — to Secretaries Perdue and Bernhardt pointed to a third meeting: “Antofagasta met with Jorjani three times in the months leading up to the issuance of his Solicitor opinion in December 2017,” the letter reads. Maybe this October 12th meeting counts as the third meeting. I’ve written to McCollum’s office for clarification, but have not received a reply.

Even with all the redactions, gaps in the record, and unanswered questions, it seems pretty clear that in the Twin Metals matter the Department of the Interior was serving private interests, and not the public interest. At whose direction we still do not know; nor do we know why the matter appears to have been a priority for the new administration.

Interior has not yet provided me with all the documents I requested back in January of 2018. Maybe some fresh answers will come with the release of additional documents.

Update, 22 March 2019. One day after I posted this, on March 15th, 2019, attorneys for the defense filed a brief in opposition to the plaintiff’s March 1 motion.

Writing for the DOJ, Deputy Assistant Attorney General Jean E. Williams maintains that documents obtained through FOIA are not necessarily part of the administrative record. These are merely “internal transmittal emails, deliberative documents, and privileged attorney work product” that the plaintiffs “offer…exclusively in an improper attempt to prove the subjective motivation or mental processes of the decisionmaker.” The federal government cites plenty of case law to support this point.

Further,

this Court should deny Plaintiffs’ belated motion because Plaintiffs have not met the heavy burden of overcoming the presumption of administrative regularity that attaches to an agency’s designation of the administrative record and because the this  [sic] Court’s review of any reviewable, final agency action challenged by the Complaints should be limited to consideration of whether the agencies’ stated reasons are arbitrary and capricious.

To the layperson, it would seem that the arbitrary and capricious nature of those “stated reasons” is exactly what the FOIA production suggests. The Jorjani memo appears to have been an exercise in a foregone conclusion, written from a blueprint set out in 2016 by Seth Waxman, the mining company’s attorney. There are those meetings with the CEO of Antofagasta Plc at the US Embassy in Santiago, Chile, at the Department of Interior, and at the White House. There is abundant evidence that Interior worked hand in hand with mining company representatives to reach its conclusions.

None of that should enter into determining whether the FOIA production is part of the administrative record, the federal government argues. The court should look at the emails arranging these meetings, and determine only whether they are rightly considered part of the administrative record. The emails were not themselves “considered in reaching the decisions to reinstate the leases,” they assert. Or, as they put it at the end of their brief, the emails were not “actually before the decisionmaker.”

Finally, Plaintiffs’ motion should be denied because Plaintiffs offer these documents for an impermissible purpose. Plaintiffs admit that they intend to use the documents to attempt to show Federal Defendants’ subjective intent in reaching the challenged decisions. But the law of this Circuit is clear that APA review is limited to an agency’s stated justifications, not the mental processes or subjective motivations that may underlie a decision. For this reason, this Court should deny Plaintiffs’ motion because the proposed supplement is irrelevant to the questions before the Court.

The Court is not going to guess at mental processes or motivations, but can it really come to a decision about the arbitrary and capricious nature of the Jorjani opinion without considering what the plaintiffs call “the why and the how” of the Jorjani opinion? Or without taking into account the fact that the CEO of Antofagasta himself was “actually before the decisionmaker,” several times? That is what these documents show.

Update, 23 March 2019. Yesterday, as I was writing the previous update, the Plaintiffs filed a reply to the DOJ brief.

In this latest filing, the attorneys for Voyageur et al. argue that the documents produced by Interior in response to my FOIA request cannot be dismissed on the grounds that they are just “deliberative” or covered by attorney-client privilege. The agency has already redacted these documents to protect deliberative process and preserve attorney-client privilege, and “plaintiffs only seek to include the documents as redacted.”

They also make clear that their real complaint has to do with the Department of Interior claiming that they were merely correcting an error in the M-Opinion issued by Solicitor Tompkins. “Under the banner of error correction,” Jorjani smuggled in a new policy. “The documents…are relevant to establishing whether the stated rationale was pretextual,” in which case, they would be relevant to the plaintiffs’ claim that the agency did not have the proper authority to issue the new opinion.

Finally, they take up the DOJ’s argument that the documents in question were not “before the decisionmakers.” As I mentioned yesterday, this argument essentially amounts to saying that the decisionmakers did not have the emails themselves before them as they worked. Here, the plaintiffs cite case law to the effect that “a document need not literally pass before the eyes of the final agency decision maker to be considered part of the administrative record,” as a 1996 case, Miami Nation of Indians v. Babbitt, reads. But that is not even the major flaw in DOJ’s argument, they say. 

The documents were “to and from” the decisionmakers themselves, “generated by, and circulated between” them; and “agency decisionmakers considered them directly or indirectly” in reaching their decisions. Some of the documents show decisionmakers running their work by the White House and other policymakers. Looking at the Twin Metals timeline, it is hard to deny that “influential officials responsible for domestic and international policy concerns discussed Twin Metals with the agency decisionmakers in the lead-up to the challenged decisions,” as the Plaintiffs assert here.

Still others show requests coming directly from Antofagasta Plc, and internal discussions at Interior about the meeting between CEO Arriagada and high-level officials. The DOJ has already introduced into the administrative record the April 17, 2017 letter from Ivan Arriagada to Ryan Zinke (which I discuss here). So they admit that’s relevant and part of the record. Why admit that and exclude other correspondence that shows the extent of Antofagasta’s influence over the Office of the Solicitor, its meetings with the State Department, or the Trump White House?

If I may venture a summary: this appears to be a case of high-level public officials blatantly serving the private interests of a foreign mining conglomerate, and pretending all the while to be scrupulous about the law.

Update, 8 April 2019. Today, Judge McFadden issued an order denying the Plaintiffs’ motion to admit documents produced through my January 2018 FOIA request. The court relied for its decision on the “strong presumption” that an agency has properly compiled the administrative record. So “the Court finds that the Federal Defendants have compiled the administrative record here in good faith.” This is a setback for the plaintiffs, and, for what it’s worth, a good occasion for me to think about the record I am producing here.

Read other posts about the Boundary Waters reversal here.

What’s Up With the Kalorama Business License?

As of this morning, it looks as if the lawyers for Chilean mining magnate Andronico Luksic Craig decided not to renew, or simply neglected to renew, the District of Columbia business license for Tracy DC Real Estate, Inc., the company that owns the Kalorama Triangle mansion rented by Jared Kushner and Ivanka Trump. (For some background, see this post.) A search for the license on the District of Columbia’s Department of Consumer and Regulatory Affairs site conducted yesterday at 9:43AM — on the day the license was set to expire — showed that it was “ready to renew.”
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Today, the same search yields no records.

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A search for Tracy DC Real Estate’s corporate information on the DC Business Center site shows the same thing: the entity is active, but does not have a Basic Business License or “BBL.”

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So it’s possible that Tracy DC Real Estate is no longer carrying a business license for the Kalorama mansion, and has been unlicensed in DC as of midnight last night. (District of Columbia municipal regulations require all landlords to have a business license. Those without one cannot legally demand that tenants pay their rent and may incur fines.) It seems equally likely that there is something about the way the system processes renewals that accounts for the disappearance of Tracy DC Real Estate licensing information.

I wasn’t able to learn much one way or the other when I called the Department of Consumer and Regulatory Affairs this morning and inquired about the lack of search results. The clerk told me the license had probably disappeared from the search because the license simply had not been renewed, but, he added, there is always a chance the paperwork is still “in the mail” and the renewal just hasn’t been processed.

In the mail? The DCRA site offers online renewal services, and it seems odd that Luksic’s attorneys, or Tracy DC Real Estate’s corporation agent, CT Corporation Services, would not have taken advantage of that. These are not people who let things lapse or go about their affairs in a careless or haphazard way. (Public records show, for example, that they have scrupulously kept up with property tax payments, incurring no penalties since taking ownership. The next tax payment on the Kalorama mansion — $22,540 — is due on March 31, 2019.*)

As the Twin Metals timeline indicates, Tracy DC Real Estate was formed on December 15, 2016, the same day as Department of Interior Solicitor Hillary Tompkins issued her M-Opinion denying renewal of the Twin Metals leases in Superior National Forest. Corporate records show that incorporation was done by Jonathan Cohen and Richard J. Snyder of the law firm Duane Morris LLP. (Filings list the Duane Morris LLP offices on 505 9th Street NW in Washington, DC as Tracy DC Real Estate’s business address.) A Robert M. Snyder, who does not appear to work at Duane Morris, but appears to be a relative of attorney Richard J. Snyder, is listed as the “governor” of the corporation.

Richard J. Snyder’s bio on the Duane Morris site makes it clear that setting up the business end of the Kalorama Triangle mansion is just one of several matters he handles for the powerful Luksic family. For this same “Forbes 100 listed South American family and certain Liechtenstein-owned U.S. entities,” Synder also handled a “$50 million unsecured loan and mortgage financing involving 14 properties in three states with attendant U.S. tax advice.”** He advised unnamed “South American investors” and a “related Lichtenstein establishment” on corporate restructuring of $72 million in real estate and other assets in six jurisdictions, including France, Panama, Peru, Massachusetts, Florida, and Colorado.

I can’t say what these loans and restructurings are all about, and whether they have any connection to the Boundary Waters reversal story I’ve been pursuing. The Colorado matter, for instance, might simply have to do with Andronico Luksic’s home in Aspen. But it’s pretty clear that these South American and Lichtensteinian matters are all Luksic Group matters. The Luksic and Fontbona families conduct much of the Luksic Group business, including their control of mining conglomerate Antofagasta, Plc, and Quinenco, S.A., an investment firm, through Lichenstein-based vehicles.

It seems unlikely, but not out of the realm of possibility, that an attorney entrusted with such grave responsibilities would overlook the simple renewal of a business license. Especially not with such high profile tenants in the mix. If this is indeed an oversight or a matter of waiting for the DCRA system to update, it will probably be corrected in the next few days. If not, it could be a signal that the Kalorama property is going to be put on the market, or transferred to some other entity, and that something else is afoot.

Update 7 March 2019. One week on, and no license renewal. It is hard to avoid the conclusion that the group behind Tracy DC Real Estate, having gotten what it wanted, or all it’s going to get from this administration, no longer sees any need to keep up appearances, or pretend that the rental ever was a legitimate business arrangement. Non-renewal of the business license strongly suggests that the Kalorama mansion should be looked upon as a foreign emolument.

*Update 26 March, 2019. Still no record online of the Tracy DC Real Estate business license renewal, but the property taxes for the first half of 2019 have been paid. And on 20 March, the corporation filed a biennial report with the District of Columbia Department of Consumer and Regulatory Affairs. These reports are due by April 1st of each second calendar year. They appears to be keeping up with everything except the business license.

**Update 5 May 2019. This financing activity may have included the Kalorama mansion. On April 5th, 2018, Rodrigo Swett signed a Deed of Trust for 2.75M on the property at 2449 Tracy Place NW. On the same day, he signed similar instruments for multiple properties in Miami Beach and at least 7 properties in Boston’s Back Bay. That would seem to cover the “three states” (Florida, Massachusetts, and District of Columbia) to which Synder refers in his bio.

Update 9 June 2019. The business license for the mansion was renewed on 31 May, 2019, a full three months after it was allowed to expire.

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What accounts for the three month lapse? An oversight by Luksic’s lawyers seems the most likely explanation. Or maybe, after borrowing against the property in April 2018, the owners planned to change its status, then decided to stay the course.

Read other posts about the Boundary Waters reversal here

A New Set of Boundary Waters Documents

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

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

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

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

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

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

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

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

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

Sonny Perdue “Broke His Word” on the Boundary Waters

Representative Betty McCollum said last week that Secretary of Agriculture Sonny Perdue had broken his word and betrayed his responsibility to care for public lands.

She made these remarks in response to Perdue’s cancellation of the two-year environmental review of the mining withdrawal of Forest Service lands adjacent to the Boundary Waters.

McCollum called out this exchange with Perdue on May 25, 2017.


(A transcript of the exchange may be found here).

It’s interesting, and in hindsight it’s perhaps telling, that Perdue answers before US Forest Service Chief Tom Tidwell can. Just about five months earlier, in December of 2016, Tidwell had stated unequivocally that allowing the Twin Metals mine would likely result in acid mine drainage to the Boundary Waters and the surrounding watershed — “an unacceptable risk.” But before Tidwell has a chance to answer — and presumably walk the committee through these findings — his new boss takes it upon himself to respond.

Perdue right away reassures McCollum and other members of the House Appropriations Interior Subcommittee that he and Interior Secretary Ryan Zinke had “already met about this,” and they had agreed that “none of us, I’m not smart enough to know what to do without the facts base and the sound science, and we are absolutely allowing [the study] to proceed.” But despite this pledge, his posturing before the committee (“the buck stops here”), and his invocation of the “Hippocratic oath: first of all, do no harm,”

Secretary Perdue broke his word, bending to political pressure from a foreign mining company and abandoning sound science to give a green light to toxic sulfide-ore mining in the watershed that feeds the BWCA. Like the President he serves, Sec. Perdue’s word cannot be trusted.

McCollum’s statement continues:

The Trump Administration’s abandonment of the Rainy River Watershed mining withdrawal study is a politically-motivated and callous betrayal of their responsibility to care for our public lands. It completely disregards the scientific evidence that sulfide-ore mining in the watershed will cause irreparable harm to the pristine wilderness of the Boundary Waters. The Trump Administration is eliminating sound science from the equation in order to ram through a destructive giveaway to their friends at a foreign-owned mining corporation.

McCollum understood back in 2017 that Perdue was “receiving pressure from the mining industry.” Along with the Department of the Interior, the Executive Office of the President, and members of the House and Senate, the new Secretary of Agriculture was already being lobbied on the Twin Metals mineral leases. Lobbying reports filed by WilmerHale indicate that an inter-agency, full court press was already underway as early as the first quarter of 2017, even earlier than agency calendars or the timeline I have put together from them indicate.

So it’s hard to credit Perdue’s representations to the House committee in May of 2017 that when he and Zinke met to discuss the Twin Metals mineral leases, they agreed that they were not the smartest guys in the room, and they should wait to have all the facts before rushing headlong into any decisions. It now appears their minds were already being made up for them.

Postscript. 15 September 2018. Some notes on the Zinke-Perdue meeting in this Twitter thread.

 

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.