Tag Archives: Boundary Waters Canoe Area Wilderness

What’s Being Hidden?

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McCollum Fong

“One page after another. Nothing.”

This is what science looks like under the Trump administration. Just imagine what’s happening with the coronavirus outbreak.

Here is Representative Betty McCollum at a February 11th hearing holding up the USDA report on the nearly-completed two year Forest Service study of sulfide mining near the Boundary Waters. Every single page of the report except the cover was completely redacted under deliberative process privilege before it was released. That’s nearly two full years of scientific study, obliterated and kept from public view.

“That begins to beg a question,” McCollum says. “What’s being hidden?”

Update, 12 March 2020. Senator Martin Heinrich asked Secretary David Bernhardt about these redactions at a March 10th Committee on Energy and Natural Resources hearing.

“Having sat on the Intelligence Committee,” he noted, “I’ve never seen something so fully redacted in my life.”

Bernhardt was simpering and evasive.

Read more about the Boundary Waters reversal here.

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

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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

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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. 

New Boundary Waters FOIA Complaint Filed Against US Department of Interior

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Yesterday, I submitted my complaint against the United States Department of interior to the US District Court in the District of Columbia, asking the court to compel DOI to comply with the Freedom of Information Act and release documents I’ve requested about the Boundary Waters reversal.

As a pro se litigant, I had to petition the court for leave to use the Electronic Case Filing system, so for now I am in the slow lane, waiting for my paper filing to be assigned a case number. [Update, August 2, 2019: Galdieri v. US Department of the Interior has been assigned Case No: 1:19-cv-02253 and Judge James E. Boasberg has also granted my motion for pro se access to Electronic Case Filing.] In the meantime, I thought it would be helpful to post the complaint online.

There have been a number of reports lately about the efforts to hobble FOIA at the Department of Interior; and just this week, Gail Ennis, the Acting Inspector General at the Department of Interior, announced an investigation of the department’s FOIA Awareness Process.

Ennis is taking this step after several watchdog groups, including American Oversight and the Western Values Project, charged that the awareness review policy at Interior was instituted to protect Trump political appointees from public scrutiny. (EPA instituted a similar policy last month.)

In my complaint, I mention the expansion of that policy in February, 2019, to cover Ryan Zinke and other officials. It seems to have played into Interior’s abrupt cessation of all communications with me, and its apparent decision to withhold responsive documents.

After corresponding with me fairly regularly for almost a year about my FOIA request, providing two document releases, and promising “additional documents” as part of a “rolling response,” Interior went silent on me as soon as I put the documents I obtained online. Since February, when I first published those documents, they have failed to respond to multiple emails and phone calls requesting a status update on forthcoming releases. They even failed to respond to several emails asking whether I had, in fact, exhausted all administrative remedies. I guess their silence is the answer to my question.

I suspect I’ve been blacklisted, or, if that’s too strong a word, at least singled out. My argument here is not just post hoc propter hoc. About a month after I first put the Interior documents online, something else happened to deepen my suspicions.

On March 26th, the Solicitor at the Department of the Interior began to follow me on Twitter.

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This account — which was created in February of 2017, never tweeted, and has since been taken down — appears to have belonged to Daniel Jorjani (DJ). In February of 2017, Daniel Jorjani was Principal Deputy Solicitor (PDSOL) at the Department of Interior: DJ, the PD, at SOL. (I have no idea what the 9999 is about.) He’s now Acting Solicitor and — let’s not forget — he also serves as the Department’s Chief FOIA Officer.

Back in March, the DJPDSOL9999 account was following a number of environmental organizations, like EarthJustice, the NRDC, the Center for Biological Diversity, Defenders of Wildlife, Western Environmental Law, Wilderness Watch, Cultural Survival, and Indian Land Tenure. DJPDSOL9999 was also following Jenny Rowland Shea, who writes about public lands for American Progress, Anna Massoglia, who researches dark money, Aaron Weiss from the Center for Western Priorities, and climate scientist Katherine Hayhoe. The list went on.

At the time he followed me, @DJPDSOL9999 had “liked” only one thing, and that was on March 21st of this year: a retweet with comment by “Matilda Williams” (@katherinewill27) of a tweet by Swing Left of a Washington Post article.

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The article in question is by Julie Ellperin: “Federal Judge Demands Trump Administration Reveal How Its Drilling Plans will Fuel Climate Change.” It’s about a ruling by U.S. District Judge Rudolph Contreras that the Department of Interior “violated federal law by failing to take into account the climate impact of its oil and gas leasing in the West.” Judge Contreras ordered the Bureau of Land Management “to redo its analysis of hundreds of projects in Wyoming.” It was a big loss for BLM. Jeremy Nichols of Wild Earth Guardians is quoted as saying that the ruling “calls into question the legality of the Trump administration’s entire oil and gas program” — which is, of course, Daniel Jorjani’s responsibility.

The lazy false equivalence drawn by Matilda Williams — Obama too! — misses the entire point of Ellperin’s article. “While the Interior Department began to take into account the climate impacts of federal oil, gas and coal leasing toward the end of Obama’s second term, administration officials jettisoned those plans when President Trump took office.” Zinke, Pruitt, and Jorjani himself were enlisted in this fight, and back in March, DJPDSOL9999 apparently felt that they got a bad deal.

In theory, there’s nothing wrong with the Chief FOIA Officer at the Department of Interior operating a stealth account on Twitter. If, however, he’s using it to track people who are making public records requests, that is going to raise serious ethics concerns, especially if he is denying or withholding records on the basis of what those people publish.

Perhaps the Inspector General’s report will shed further light on the matter.

Read other posts about the Boundary Waters reversal here. 

Bernhardt, Biodiversity, and the Boundary Waters

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At a hearing yesterday of the House Appropriations Committee, Representative Betty McCollum asked newly confirmed Secretary of the Interior David Bernhardt —again — for documents regarding the decisions and actions taken on the Boundary Waters. Bernhardt was politely evasive, but made it clear that Interior is more likely to comply with the mining company’s plans than with Congressional demands.

The full exchange is cued up here:

A few notes.

We should take a moment to appreciate that Representative McCollum used some of her time to talk about the recent report from the UN Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES). This global assessment brought alarming news. McCollum started by asking whether it was being taken seriously at Interior, and how Interior could possibly continue to advance Trump’s “energy dominance” agenda in light of the report’s findings:

The UN Report also stated that the health of the ecosystems that we and other species depend on is deteriorating more rapidly than ever. We are eroding the very foundations of our economies, our livelihoods, food security, health and quality of life worldwide. Around one million plant and animal species are now threatened with extinction, many within decades, more than ever before in human history.

So, Mr. Secretary, like the Fourth National Climate Assessment, this information is very sobering, and I believe it’s a call for action. So with the release of this information will the Department of Interior take a pause in its approach to energy development, to reexamine the impacts of these operations on ecosystems, species, and habitats, to see if there are better approaches?

Without waiting for a reply, McCollum continued:

The report also states that the abundance of native species in most land — major land based habitats has declined by 20 percent. And so I want to know how the Department is going to work to sustain native plants on public lands, and …the last thing that I’ll mention that the report highlights is the impact of greenhouse gas emissions on nature. With those impacts projected to increase over the coming decades. So I believe, and I believe many Americans would agree with me, that we can’t continue a business as usual approach. So how’s the Department going to incorporate this science into your everyday operations and long range planning? In other words, what are you doing to make sure the United States is a leader, and not a contributor, in the eroding of the foundations of our economies, our livelihoods, and the health and quality of life not only here in America but worldwide?

These remarks set the tone and context for the whole hearing, and for the brief exchange over the Boundary Waters. “The UN Report is on a lot more than just on climate change,” McCollum reminds Bernhardt at the beginning of the clip I’ve included above, “it’s also about pollution, mining, and land use.”

Indeed, the IPBES report notes that mining has “increased dramatically” in recent decades, and that it has already had “significant negative impacts on biodiversity, emissions of highly toxic pollutants, water quality and water distribution, and human health.” It adds that mining has had “strong negative effects on soil, freshwater and marine water quality and the global atmosphere.” As currently practiced, mining even jeopardizes responsible stewardship, as it has frequently led to “indigenous peoples or local communities [being] expelled from or threatened upon their lands.” In light of all this, the report recommends, among other things, “guiding and limiting the expansion of unsustainable agriculture and mining” to protect water and wetlands, which are under more pressure from human activity than ever before.

A thoughtful approach, but Bernhardt’s response was not even remotely satisfactory. He made some noises about how much he respected and appreciated McCollum’s question, but he was careful not to commit to handing over the requested documents. He left himself lots of wiggle room, basically claiming deliberative process privilege. Given his refusal, it was somewhat gratifying to hear that one of the documents I obtained through FOIA — an email to David Bernhardt on October 3rd, 2017, about a briefing on the Boundary Waters — was helpful to McCollum; but it was also frustrating to watch Bernhardt stonewall a Congressional committee.

Like Secretary of Agriculture Sonny Perdue, Bernhardt assured Representative McCollum in the most earnest tones he could muster that once the mining permit process is underway, he’ll be open to public comment. By then, of course, it will be way too late. “There’s lots of opportunity for comment, review. There’s no way we’re going to approve something that’s destructive to the Boundary Waters. But there are processes we go through to analyze that.” This would be reassuring were it not for the fact that those “processes to analyze” had already been set in place — with the finding by US Forest Service Chief Tom Tidwell that sulfide mining posed an “unacceptable risk” to the Boundary Waters; with the issuing of Solicitor Tompkins’ M-Opinion; and with the mineral withdrawal study in Superior National Forest — and Bernhardt, Perdue, and other Trump political appointees abruptly cancelled and reversed all of them.

Why? We don’t know. They refuse to say.

If you listen closely to Bernhardt, his true position becomes clear. “If the applicant” — namely, Antofagasta Plc — “were to go forward, there are lots of opportunities for comment and review.” He’s leaving all discretion to the mining company. He refuses to grapple with the fact that reversals of Obama era protections — the reinstatement of the mineral leases — were unlawful, as McCollum points out here.

We know from the documents we have that Interior basically followed the mining company’s lead, and worked closely and behind closed doors with mining company lobbyists, in making this unlawful reversal. What else is Bernhardt holding back from the public?

Update, 15 May 2019. At today’s hearing of the House Natural Resources Committee, Representative Alan Lowenthal again pressed Bernhardt on the Boundary Waters leases, and asked about the Briefing Memo and the Withdrawal Options document identified in the email correspondence I obtained through FOIA.

At the end of last week, the Committee received thousands of pages in response to their request for documents. This document dump consisted mostly of duplicates and materials that had already been made public through FOIA, and some pages were filled with garbage characters — what Lowenthal called “jibberish.” The Briefing Memo and the Withdrawal Options documents were included, but fully redacted, as they are in the documents I received.

The whole exchange is here.

Bernhardt was non-committal and evasive, as before. But today he had an ace up his sleeve. Toward the end of the hearing, the Bureau of Land Management announced that it had renewed Antofagasta’s copper-nickel mining leases near the Boundary Waters. This is an important step forward for the Twin Metals project.

Read more about the Boundary Waters reversal here.

David Bernhardt’s Briefings on the Boundary Waters Reversal

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bernhardttwinmetals4oct2017.pngIt appears the FOIA department of the Solicitor’s Office at the Department of Interior has gone quiet on me, and has made it a practice if not a policy no longer to reply to emails or return phone calls about the status of my outstanding FOIA request. I should not like to think that they are giving me the cold shoulder because I published the first two batches of documents they produced, or that they are deliberately withholding or delaying the release of more documents. But with each passing day it’s getting harder to avoid a conclusion along those lines.

While trying to figure out if I’ve constructively exhausted administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i), which would give me grounds for a legal complaint, I thought I would look at the calendar entries recently posted online by the Department of the Interior for David Bernhardt, and see what I could learn about the role he played in the Boundary Waters reversal.

Before his nomination to be Secretary of the Interior (which the Senate Energy and Natural Resources Committee just advanced), Bernhardt served as Deputy Secretary of the Interior under Ryan Zinke. Before that, he was the head of the energy, environment and resources division at the lobbying firm Brownstein, Hyatt, et al; he represented many oil, gas and mining companies, and it remains unclear whether, or to what extent, he has severed ties with former private sector clients.

Bernhardt has balked at the requirement that he keep an official calendar, which would at least allow the American public to see who he’s been meeting with. The closest we have are typed agendas or “daily cards,” which list appointments and calls. The agenda items offer little detail, rarely specifying the subject of a meeting. This looks like more than just laziness or negligence. Bernhardt seems to believe the rules do not or should not apply to him, and he appears to be contemptuous of administrative process, norms, and law.

Much the same can be said for the PDF of Bernhardt’s calendar entries the Department of Interior released. There was no attempt to fill or even call out gaps in the record. Pages and entries are out of chronological order, November mixed with September, 2017 with 2018. Adding to the confusion, the PDF is not searchable; it is simply an image of the daily cards. Fortunately, my friend Michael Miles was able to perform a little software magic, and — voila! — we now have a searchable version of the 439 pages of daily cards that Interior produced. It’s online here.

We knew before this that Bernhardt was scheduled to be briefed on the Twin Metals matter sometime in August of 2017. As the timeline indicates, on Sunday, August 6th, Associate Solicitor Karen Hawbecker forwarded a briefing paper to her colleague Jack Haugrud “about the Twin Metals litigation in preparation for a briefing with David Bernhardt.” This was probably some version of the one page briefing that Kathleen Benedetto had prepared for Ryan Zinke back in April of 2017, and which had been adapted and forwarded to the US Embassy in Santiago, Chile at around the same time, in preparation for meetings with Antofagasta’s CEO, Ivan Arriagada. Bernhardt’s briefing would have reflected the progress that the Solicitor’s office had made since that time on the effort to reverse Solicitor Tompkins’ 2016 M-Opinion, following Seth Waxman’s blueprint.

It’s difficult to say whether this August briefing ever took place. Bernhardt’s daily cards show a meeting with Kathleen Benedetto on August 28th, 2017; and Benedetto at the time was carrying the Twin Metals brief. So perhaps that’s it. The daily cards also help us establish a little context for Bernhardt’s August briefing. We can see from his calendar that Bernhardt was in constant and regular contact with Michael J. Catanzaro, who was Special Assistant to the President for Domestic Energy and Environmental Policy before leaving in April, 2018. Bernahrdt and Catanzaro have a weekly call; sometimes they have lunch together. No surprise, as the two men come from the same world of lobbying for oil, gas, and mining interests; but what’s interesting about their regular contact is that it establishes a clear line of communication between the White House, or the Executive Office of the President, where Catanzaro served, and the highest levels of the Department of the Interior.

The revolving door puts one powerful lobbyist in the White House and another at Interior, and the two of them get together regularly, no doubt to discuss a shared agenda.

About a week before Bernhardt met with Benedetto, on August 22nd, 2017, Catanzaro meets to discuss the “Minnesota Project” with Principal Deputy Solicitor Daniel Jorjani. Joining them to discuss the reversal is Stephen Vaden, an attorney from USDA. Two days after that, August 24th*, Bernhardt along with other high level Department of Interior officials hosts the CEO Critical Minerals Roundtable, with the CEOs of 16 mining companies. I’m unable to determine who those 16 CEOs were, but minutes from the annual meeting of the Women’s Mining Coalition on September 1, 2017, tell us that Pershing Gold was among the invitees, and the focus of the roundtable was “how to remove barriers to critical minerals, concerted focus at high level to improve permitting conditions.” Was anyone there to talk about removing barriers to mine the Duluth Complex? The CEO of Twin Metals? Polymet? Antofagasta? Glencore? I’ll do a little more poking around to see if I can find out who the CEO attendees were, and if I can’t come up with anything, I suppose I’ll have to file yet another FOIA request.**

Among the documents already produced by Interior, the earliest reference I’ve found to the Twin Metals matter is a February 2, 2017 Information/Briefing Memorandum [page 4390] prepared by Kristin Ball, Acting Director of the Bureau of Land Management, for Katherine MacGregor, who at that time was Assistant Secretary of Land and Minerals Management. (Michael Nedd’s February 7th, 2017 email has been superseded in this regard; and it makes sense that the initiative appears to have come from MacGregor, not from Nedd. The timeline now reflects MacGregor’s role as prime mover.) In her memo, Ball notes that in the Superior National Forest area proposed for withdrawal, there are deposits of “Copper, nickel, palladium, platinum, gold, and silver” and adds, “Deposits contain critical minerals, due to technological applications.” This early memo establishes a theme that will run through Bernhardt’s arrival at Interior and culminate in the December 19, 2017 release of a new list of critical minerals by the United States Geological Service. That comes just three days before the Jorjani M-Opinion is made public. As I noted in an earlier post, emails show political appointee Gary Lawkowski recommending the Office of the Solicitor spin its December 22nd release with talking points about critical minerals.

Bernhardt was next briefed on the Boundary Waters reversal on October 4, 2017.*** His daily cards show the meeting at 11AM on that day. It was timely. Just one day before, Bernhardt spoke with Representative Tom Emmer, the Minnesota Republican who, along with Rick Nolan and Arizona’s Paul Gosar, has been working steadily to open the Duluth Complex to mining. This phone call now appears on the Twin Metals timeline. What Emmer and Bernhardt discussed is not specified. Gareth Rees was in the meeting, but the 10:30AM call with Emmer does not appear on his calendar [page 192], which on that day starts at 1PM. Curious that he should have omitted or forgotten to note this call with a member of Congress and the Deputy Secretary.

In any case, Bernhardt comes off that call with Emmer on Tuesday and into his Wednesday briefing equipped with three background documents: the widely circulated one page briefing and scenarios papers prepared back in April, and a July 24 BLM paper on the withdrawal. Correspondence shows that Bernhardt asks to see the 1966 and 2004 leases, along with the M-Opinion prepared by Solicitor Tompkins. It’s clear from Karen Hawbecker’s response that the focus of the discussion at this juncture are the renewal terms in the 1966 leases. Hawbecker directs him to them: Section 5, page 8.

HawbeckertoBernhardt4Oct17

Why this focus? Section 5 will be critical to a legal argument Jorjani ultimately makes in his memo, which is that according to the 1966 leases, production — actually getting a mining operation up and running — is not a precondition for renewal: “the commencement of production is…not a condition precedent to the right to a renewal.” This is another argument Jorjani borrows from Antofagasta’s lawyer Seth Waxman; and for Waxman, reading a production requirement into the 1966 leases counts as one of the “overarching errors” in Solicitor Tompkin’s M-Opinion. “Section 5 instead creates a production incentive” (cf. Jorjani page 6). As Representative Alan Lowenthal pointed out in a congressional hearing back in March, this argument may be ingenious, but it flies directly in the face of a 1966 BLM press release specifying a production requirement for renewal.

Regardless, by autumn of 2017, David Bernhardt had been briefed on the Waxman-Jorjani legal strategy. He had coordinated with Catanzaro and the White House and with Republican political operatives. He had hosted mining company CEOs behind closed doors to discuss the disposition of America’s public lands. He was fully on board.

*Bernhardt’s daily cards date this roundtable August 23rd, 2017. But Katharine MacGregor’s calendar (page 24) shows the event on the 24th, and a walk through or rehearsal of the event on the 23rd. I am inclined to trust MacGregor’s calendar over Bernhardt’s sloppily compiled cards. It is entered correctly on another Bernhardt calendar for August, 2017. Why the discrepancy?

**UPDATE, September 5, 2019: Though I have not yet received a response to my April FOIA requests regarding the CEO Critical Minerals Roundtable, another request has turned up a list of attendees. Lydia Dennett’s excellent investigation of the CEO Roundtable for the Project on Government Oversight drew my attention to it. Here is the list of attendees, as of August 18, 2017:
CriticalMineralsRoundtable20190827
***UPDATE, April 21, 2020. Those first items on Bernhardt’s October 4, 2017 calendar — departure for Trump Hotel, remarks at NMA Board of Directors Meeting — are the subject of an October 5, 2017 report in the Washington Post. On the same day he received his scheduled briefing, Bernhardt opened the National Mining Association Board of Directors meeting at Trump International Hotel. After suing under FOIA, Citizens for Responsibility and Ethics in Washington obtained a copy of Bernhardt’s remarks. He praised the Trump Hotel, promised that he and Zinke would be “relentless in trying to minimize regulatory and permitting uncertainty,” and criticized “proposed withdrawals” by the Obama administration: “nothing short of uninformed, arbitrary, and frankly senseless. They might have made great press, but to do so they had to ignore the facts of their own experts in the record.” According to the Post report, “Commerce Secretary Wilbur Ross headlined a general session,” and “in the afternoon, Labor Secretary Alexander Acosta spoke with NMA members during a lunch.” CREW notes that Energy Secretary Rick Perry attended as well. A footnote in Andrea Bernstein’s American Oligarchs: The Kushners, the Trumps, and the Marriage of Money and Power pointed me to the article.

Update, 11 May 2020. Today in response to a FOIA request filed on April 15, 2019, I received a list of the Interior Department attendees at the August 2017 CEO Critical Minerals Roundtable. (The names of corporate attendees had already been released; see the Sept. 5 update to this post.)

2017CEOCriticalMineralsRoundT
Note especially the participation of Murray Hitzman, who would resign in protest along with Larry Meinert after Ryan Zinke pressured them to share sensitive information about energy potential within the National Petroleum Reserve-Alaska prior to official publication. Hitzman is the distinguished scientist at the Roundtable. His resignation serves as a reminder of just how politicized and how disrespectful of scientific authority Interior has become under the current administration.

Update 18 May 2020. The indefatigable Jimmy Tobias has obtained yet another list of CEO attendees at the Critical Minerals Roundtable. This adds a few new names to the list: Niocorp Developments; Doyon, Ltd; and Rare Earth Resources. Tobias Critical Minerals

Read other posts about the Boundary Waters reversal here. 

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

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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.

“America is Not a Company”: Lowenthal Questions Nedd on the Boundary Waters

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Nedd7Feb2017Email

“…documents that have already been released”: the February 2017 email from Michael Nedd that Representative Lowenthal used for today’s line of questioning.

One of the documents I obtained from the Department of Interior through a Freedom of Information Act Request came up for discussion at this morning’s Energy and Mineral Resources Subcommittee Hearing.

Representative Alan Lowenthal of California kicked off the question and answer period by asking Michael Nedd of the Bureau of Land Management when he first discussed the issues of the Twin Metals mineral leases in Superior National Forest with the incoming administration. Nedd was evasive (as he was throughout the entire hearing, prompting Representative Jared Huffman to remind him, at one point, that he is “not a potted plant”).

A second question from Lowenthal: “do you recall who from the incoming Trump administration first discussed the issue with you?” got an equally vague reply: Nedd said he did not have “a specific recollection.” So Lowenthal offered a reminder:

Well from documents that have already been released, we know that in early February of 2017, you sent out a briefing memo on this topic, which was entitled “Withdrawal Options.”

As the timeline shows, this email is — so far — the first time the Twin Metals matter is raised at Interior after the new administration takes office. It indicates that Nedd was following up on a discussion he had with staff either that day or before that day; and it raises the question why this matter appears to have been a Trump administration priority. Nedd wanted an updated briefing paper, pronto, by close of business on Thursday, February 9th. Why was this matter top of mind for him? Why the quick turnaround? Why the urgency?

Blumenthal also asked for a copy of the original briefing paper Nedd attached, and Nedd was agreeable but non-committal, saying he would take Blumenthal’s request back to the Department of the Interior. We already know that just a few months later, by late April of 2017, this briefing paper would have undergone enough revision so that the Karen Hawbecker could refer to “options we’ve identified for reversing action on the Twin Metals decision.” So that tells us what we need to know about the direction Nedd gave the group for “working together.” They were to reverse what the previous administration had done.

At whose direction? And why? We still don’t have satisfactory answers to these questions.

Here is Lowenthal’s first round of questioning on the Boundary Waters reversal, which includes his exchange with Nedd over his Briefing Paper. (The video here is cued to the start of his question.)

Later in the hearing, at around 1:26, Lowenthal questions Chris French of the US Forest Service on Secretary Perdue’s cancellation of the environmental assessment in Superior National Forest and about the false assurances Perdue gave Representative McCollum, and asks that French provide relevant documents. After that there is some back and forth with Representative Gosar, who complains of executive overreach by the Obama administration, claims the people of Minnesota want these mineral leases renewed, ends by arguing that polling questions can be misleading, and if we had polled people properly back in 1919, we wouldn’t have a Grand Canyon National Park today. I’m not exactly sure how that last argument is supposed to win the day at a hearing on public lands.

For his part, Lowenthal has a strong sense of what’s at stake throughout this hearing. Just consider this excerpt from his opening statement on the Trump doctrine of “energy dominance” that now informs policy at the Department of Interior:

America is not a company. It may seem like President Trump is trying to treat us like one, like many of his other companies, and let us run it into the ground. But America is a country, not a company, and America’s lands are not excess inventory that need to be disposed of. Our natural resources are not reserves that need to be booked, so our stock prices stay high and our investors stay happy. Our public lands are an investment that we’re holding for our grandchildren, and their grandchildren, and generations beyond. They’re an investment that pays off, by allowing them to know, our grandchildren, great grandchildren, what vast stretches of untainted wilderness look like. That lets them see with their own eyes polar bears, sage grouse, mule deer, and caribou, running wild and free. That lets them learn about ancient native cultures without having to go to a museum, and lets some cultures continue to observe and respect the same traditions that their ancestors have. These are all priceless. They’re irreplaceable. And these are all infinitely more important than whatever extra few dollars can line an oil baron’s pocket over the next few years. I just hope our land management agencies still understand that.

A New Boundary Waters FOIA Request

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On Tuesday of last week, the Washington, DC-based organization American Oversight filed a Freedom of Information Act request regarding the decision to renew Twin Metals Minnesota’s leases in Superior National Forest, on the edge of the Boundary Waters.

This March 5th request is much broader in scope than the FOIA request I made back in January of 2017, which has so far yielded about five-thousand pages in documents, with more still to come. Slowly but surely, a picture is coming into focus. American Oversight’s question about “outside influence” can already be answered with an unequivocal yes:

Nonetheless, this new request promises to deepen our understanding of how Interior went about reversing Obama era protections for the Boundary Waters, at whose direction they did so, and why the matter appears to have been a priority for the incoming administration.

Three things intrigue me about American Oversight’s request.

First, it extends from January 20th, 2017 to the present. My request for documents from the Office of the Solicitor runs only to December of 2017, when the Jorjani decision was released. So the new request will take us up to the present, and include actions taken by Interior and USDA in 2018.

Second, American Oversight has asked for any communications on this matter from Jared Kushner and Ivanka Trump, from their official White House accounts and from their personal ijkfamily.com email domain, and from anyone using their personal email domain. This will help clarify the role Kushner, Trump, and the Trump White House might have played in the Boundary Waters reversal, and what connections, if any, we can draw between their rental of the Luksic-owned Kalorama mansion and the renewal of Antofagasta’s mineral leases. That may involve a foreign emolument. This aspect of the new request also promises to inform a broader American Oversight investigation into Jared and Ivanka’s roles in the administration.

Third, and perhaps most intriguing of all, American Oversight’s request zeroes in on an April 28, 2017 meeting with Wilmer Hale’s Rob Lehman at the Department of the Interior. I added this meeting to the Twin Metals timeline after discovering it on the calendar of Chief of Staff Scott Hommel (which American Oversight obtained back in June of 2018).

A look at the timeline shows that this was an especially busy period for Interior officials working on — or should I say with? — Twin Metals: on April 27th, in preparation for a meeting between Deputy Secretary James Cason and Antofagasta CEO Ivan Arriagada, Raya Treiser of Wilmer Hale forwards some background materials. Among them, the Waxman letter to Solicitor Hillary Tompkins that Interior would use as a blueprint. The very next day, Lehman comes to meet with Kathleen Benedetto, an 11AM meeting. Who else was in the room? We don’t know. We do know that right after that meeting Benedetto briefed her colleagues at the Office of the Solicitor. The purpose of the Benedetto briefing, according to Associate Solicitor Karen Hawbecker, was “to get some feedback from [Benedetto] on the options we’ve identified for reversing action on the Twin Metals decision.”

So by late April, the course appears already set. The options on the table were all for “reversing”; and as if to seal the deal, one week later, Antofagasta CEO Ivan Arriagada and his entourage arrive at the Department of the Interior for a first meeting. What was discussed on that occasion, and whether any assurances were given to Mr. Arriagada, remains unknown. The actions Interior subsequently took speak for themselves.

What’s Up With the Kalorama Business License?

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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.

TracyDCRenewal

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.