Tag Archives: Boundary Waters

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

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

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

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

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

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

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

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

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

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

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

Selective Evidence and the Office of the Solicitor

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

Read more about the Boundary Waters reversal here.

 

 

 

 

Did Interior Abandon NEPA for Antofagasta?

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

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

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

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

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

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

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

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

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

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

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

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

Read more about the Boundary Waters reversal here.

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

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

We don’t know why.

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

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

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

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

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

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

The new documents are here.

Read more about the Boundary Waters reversal here.

A 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.

What’s Being Hidden?

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.

New Boundary Waters Document Releases Coming

This week offered some reminders of how little we still know about the Trump administration’s decision to allow copper-sulfide mining near the Boundary Waters.

On Tuesday, Friends of the Boundary Waters filed suit in US District Court in Minneapolis to compel the Bureau of Land Management to comply with the Freedom of Information Act, and made the case that BLM appears to be trying to keep its actions “secret.” The very next day, Representative Alan Lowenthal took up the same theme at a hearing on HR 5598, the Boundary Waters Wilderness Protection and Pollution Prevention Act.

Everything the administration has done on this issue raises serious questions. Why was the environmental review cancelled? Why is there a solicitor’s memo that is so at odds with the historical record? Who applied pressure to reinstate the leases? Did it have anything to do with the fact that Ivanka Trump and Jared Kushner are renting a house from the head of the mining company that’s developing the project? This committee has requested documents from both the Forest Service and the Bureau of Land Management, in an effort to get to the bottom of this decision-making. But instead of sending us what we requested, we got pages and pages of nonsense, with just a few relevant documents mixed in. I also directly raised the issue at a hearing with both the Bureau of Land Management and the Forest Service last year, and my questions were met with obfuscation and a supposed lack of knowledge on certain details.

Obfuscation is a polite way to describe the behavior of Interior officials at this very hearing. Take, for example, what happened when Lowenthal asked Chris French, Deputy Chief of the National Forest System, why Secretary Perdue had cancelled the planned two-year scientific study in Superior National Forest, after publicly committing to see it through. It’s a full five minutes of French repeating the same bureaucratic non-answer, and then failing to answer when the question is put to him as a yes or no. The video is cued to the exchange.

Just today, in response to my own FOIA suit, the Department of Interior all but admitted that they had failed to conduct an adequate search of records. From the very start, it appears, the scope of the search was deliberately narrowed, in a very specific way, but to what end I cannot say. It turns out their initial search, which produced about 6,000 pages of records, and which they claimed was complete, used only a few of the terms from my original request. Notably, the original search excluded references to Antofagasta Plc, Andronico Luksic Craig, and the Luksic family, as if to keep the Chilean mining conglomerate, its billionaire owner, and the Chilean side of this story entirely out of view. From today’s Joint Status Resolution:

as of February 6, 2020, nearly 22,000 pages have been received using the more expansive set of search terms, with searches still to be run against one custodian (whose records need to be processed by the Interior’s Office of the Chief Information Officer). This page number is therefore subject to change as Defendant awaits the final custodian’s records. The page count will also change, and is expected to decrease significantly, after the FOIA office completes de-duplication within the new search results and cross-checks against records that have already been produced to Plaintiff. The parties have agreed to monthly releases of 750 pages beginning March 15, 2020.

A slow trickle, but I’m cautiously optimistic that these monthly installments will fill in some more details of a picture that remains sketchy. I plan to share them on documentcloud as they arrive.

Update, 7 April 2020: The first of these releases was delayed due to the coronavirus emergency. Interior’s FOIA office began teleworking on March 13th, just two days before the first production was due. According to the Joint Status Report filed today, “two, approximately 700-page productions” are now scheduled for release “before April 15, 2020.”

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