Tag Archives: corruption

The Boundary Waters, Offshore: Luksic in the Pandora Papers

A chart of Luksic-connected offshore entities included with the CIPER report.

Last week, El Centro de Investigación Periodística (CIPER) published an investigative report on the offshore financial activities of Andronico Luksic Craig and the Luksic family, based on the Pandora Papers — a trove of over 11 million records leaked from tax havens in the British Virgin Islands. The investigation cast some new light on the elaborate network of offshore corporations, foundations, law firms, and corporate services companies involved in managing some of the Luksic family’s vast fortune, and brought me back to some of the records I’d uncovered in connection with Luksic’s purchase of the Washington, DC mansion where Jared Kushner and Ivanka Trump lived while serving in the Trump White House.

Luksic acquired that $5.5 million Kalorama property right after Trump won the 2016 election, right around the time Kushner-Trump were preparing for their move to the nation’s capital and at a critical moment when Antofagasta plc, the Chilean mining company controlled by Luksic, was counting on the Trump administration to reverse policies of the Obama administration (which it duly did). This neat arrangement may not have been a simple quid pro quo, a mansion provided in return for government approvals to mine copper and nickel on the edge of the Boundary Waters, but even to the casual observer it looks an awful lot like a foreign emolument. Unfortunately but not surprisingly, the matter never underwent a formal ethics review. (More on all that here, here, and here.)

While these new documents do not directly shed light on the Kalorama emolument, they provide some insight into how Luksic’s control of Antofagasta is connected to offshore schemes and how the Kalorama mansion might figure into a network of Luksic-controlled US property holdings.

One company called out in the CIPER investigation, FDMDA Corp, looks like a more elaborate version of a company I came across in Boston property records, LDMD Corp, which was registered as the owner of two Avery Street properties from 2011 to 2013. FDMDA carries the first initials of the names of Luksic’s five children, while LDMD appears to have been created solely for the male heirs. (I am assuming the L in LDMD stands for Andronico Luksic, the first-born son, with DMD representing Davor, Maximiliano, and Dax.) Two others, Beacon Eagle Corporation and Avery Eagle Corporation, also look like another iteration of Boston property-holding companies formed by Luksic attorneys, Avery Bicentennial Corp and The Avery Millennium Corp.

These corporations owned and still own condominiums on Avery and Beacon streets in Boston. The Beacon Street property includes a penthouse that Luksic (or, rather, Avery Bicentennial) purchased from quarterback Tom Brady in 2012 — which is right around the time that Luksic says he and Donald Trump “said hello” or exchanged a greeting at a New England Patriots’ game, where they would have been guests of Brady, a mutual acquaintance, or of billionaire owner Robert Kraft. So Brady connects Luksic to Trump — suggesting there might be a little more to the Kalorama mansion story than serendipity. What’s not clear is how the entities formed around the Boston properties, or even Luksic’s Miami and Washington DC properties, might be legally connected with the two Eagle companies mentioned in the Pandora Papers.

On April 28, 2017, FDMDA Corp and Beacon Eagle Corporation were relocated from the British Virgin Islands to Liechtenstein, where they were subsumed under an entity called The Lazare Tcherniak Foundation. (The disposition of Avery Eagle remains unclear.) The Lazare Tcherniak Foundation “provides for the economic furtherance of the descendants of Nadia Malvine Tcherniak” — Patricia Lederer Tcherniak is Luksic’s ex-wife and mother of his five children — “that bear the name Luksic as their first or second name and that are also biological descendants of Andronico Luksic Abaroa [Andronico Luksic Craig’s father]. They are all members of a generally defined and fully discretionary class of beneficiaries.”

While Beacon Eagle appears to be bound up with US-based real estate investments, FDMDA Corp. serves Lazare Tcherniak Foundation beneficiaries by managing and distributing stock dividends. Records reviewed by CIPER describe the source of FDMDA Corp’s funds as “mining activities in the Republic of Chile. The funds are mainly dividends indirectly received from Antofagasta plc, a public company listed on the London Stock Exchange.” Here, “indirectly” probably indicates that there is an entity — a partnership — to which the Antofagasta plc dividends are paid before they are distributed, in whole or in part, to the Liechtenstein-based FDMDA Corp.

Of course, all of this appears to be perfectly legal, as Andronico Luksic himself pointed out in a tweet responding to the CIPER report.

While technically true (“Liechtenstein is NOT a tax haven” because Chilean tax authorities don’t include it in their list of tax havens), this statement was rapidly ratioed. Along with President Sebastian Piñera’s own exposure in the Pandora Papers, Luksic’s exposure and his carefully lawyered response just provide more fodder for the debate over inequality in Chile.

Luksic’s  October 6 statement also prompts questions about corporate governance, the extent of the Luksic Group’s reach, and its attendant responsibilities. With a controlling interest in Antofagasta plc, the Luksic Group can easily thwart any shareholder resolutions not to its liking and effectively determine how the company and its subsidiaries are run, all from behind the scenes and with little accountability. That is shadow governance, and it’s the very model of corporate governance that Antofagasta brings to its Twin Metals project near the Boundary Waters.

Postscript. Oct 20, 2021. The same elaborate network of Luksic foundations, offshore companies, tax havens, and investment vehicles is evident in the disclosures filed by Antofagasta’s three lobbying firms: Brownstein Hyatt, Wilmer Hale, and The Daschle Group. I addressed the topic in this Twitter thread:

Read more about the Boundary Waters reversal here

The Latest Records in my Boundary Waters FOIA Case

This morning, after some prodding, Interior sent the 18th supplemental production of records in my Boundary Waters FOIA case. This release numbers only 108 pages. I reviewed the documents this morning in this Twitter thread.

At the moment, the biggest takeaway for me is that we still don’t know nearly enough about coordination among the Department of Interior, the Trump White House, and the USDA, and how politics — and pressure from the mining company — played into the Trump administration’s decisions around Antofagasta’s mineral leases near the Boundary Waters.

Today’s release shows that legal memoranda from the mining company on the mineral withdrawal circulated at Interior just days before Solicitor Daniel Jorjani met with David Bernhardt’s close associate Michael J. Catanzaro, then with the Executive Office of the President, and Stephen Vaden, an attorney at USDA who seems to have been charged with keeping Sonny Perdue apprised of developments on this front.

Perdue had promised Representative Betty McCollum in May of 2017 that “we are absolutely allowing [the mineral withdrawal study] to proceed.” By August of 2017, the mining company had offered a whole host of legal arguments that would help Perdue move away from that declaration. But remarkably enough, he didn’t take that route. Instead, in September of 2018, after a year-long pressure campaign, he abruptly cancelled the two-year mineral withdrawal study, then in its eighteenth month, and declared the Rainy River Watershed open to new exploration. Why? Probably because Trump had publicly fingered him, on a May 2018 visit to Duluth: “It’s now up to Secretary Perdue, and I know he’s looking at it very strongly.” It was clear enough what Sonny Perdue had to do. Where legal arguments had failed, coercion succeeded.

I still believe Secretary Vilsack ought to ask the USDA Inspector General to look into the matter, because there’s pretty clear evidence that Perdue acted corruptly, or at least arbitrarily and at the caprice of the president, but it’s seeming less likely Vilsack will do the right thing. Secretary Vilsack has steered clear of making any comments about mining near the Boundary Waters, citing ongoing litigation in Wilderness Society v. Bernhardt and the review of the matter that Interior is undertaking in connection with that litigation — which is now supposed to be completed by October 22, according to court filings. But as I have said repeatedly, the Secretary as head of a federal agency has an independent obligation to the American public and does not need permission from another agency to investigate corruption at the one he leads.

The new records are here.

And all the Boundary Waters FOIA records I’ve obtained to date are here.

Read more about the Boundary Waters reversal here.

Are We Ever Going to Find Out How the Boundary Waters Reversal Really Went Down?

I can make a few additions to the Twin Metals timeline based on the latest release of records in my FOIA case against the Department of Interior, and I hope to get around to that soon. For those who would like to review these documents for themselves, the 16th supplemental production in Galdieri v. Dept. of Interior is online here; and all the public records concerning the Trump administration’s actions on Antofagasta’s mineral leases I’ve obtained through Freedom of Information Act requests may be found here.

This new set of records dates from the final months of 2017, when attorneys at the Department of the Interior are drafting, editing, and preparing to release the M-Opinion that would reverse the Obama administration’s actions and grant Chilean mining company Antofagasta, Plc “non-discretionary right” to a third renewal of its Twin Metals mineral leases. The emails included here span the period from then-Deputy Secretary David Bernhardt’s briefing on the matter in early October 2017 to the release of the M-Opinion in late December.

We get a little more detail here about the Bernhardt briefing — or, at least, evidence of continued sensitivity around it. For example, DOI has redacted the phrase that Karen Hawbecker used to describe one of the briefing documents. 

Why the redaction? Why should this phrase be subject to Exemption 5?  It refers to a document dated August 9, 2017, and its title is clearly indicated in the list of attachments: “Draft Lease Renewal Scenarios w[ith] comment.” How did Hawbecker characterize these scenarios?* Or could this be a case of sloppy redaction, where the reviewer did not notice the paper title in the list of attachments? If so, why should the reviewer not want to indicate that David Bernhardt was presented with a list of “lease renewal scenarios” prepared in August 2017?

Clearly, legal issues as well as political sensitivities were at play, and still are. In December 2017, the Solicitor’s office brings Ron Mulach, Office of the General Counsel at USDA, into the loop; OGC makes some changes to the letter the Bureau of Land Management will send to the Forest Service, notifying them of the new disposition. Other communications with attorneys at the Department of Justice, most likely regarding ongoing litigation, were not included in this release because they will “require consultation” with DOJ, according to the letter accompanying these records. A December 5 note about comments received on the draft from the Environmental and Natural Resources Division and a query from an ENRD attorney asking when the new M-Opinion will be issued are among the traces of those communications.

These documents also heighten the impression that there might have been some tension between political appointees and career attorneys at DOI in that first year of the Trump administration. Duplicates of some previously released emails show Gary Lawkowski, the political appointee who was then serving as Counselor to fellow Koch alumnus Daniel Jorjani, running some kind of independent operation within DOI. Lawkowski asks to see the mineral leases in November. He then drafted, or announced that he was drafting, his own version of the M-Opinion, which appears to have created confusion. As we know, he also floated the idea that the new M-Opinion should be positioned as a critical minerals play. While Lawkowski is pushing that industry-friendly line, Richard McNeer, who has been with the Solicitor’s Office since 1998, suggests including some talking points about how the public can make its views known to the Bureau of Land Management and the Forest Service.

Overall, then, this latest release contributes to the impression that the Boundary Waters reversal was a political project from the get-go. We still don’t know enough about the forces behind that project or about the ways it connected with other schemes run behind the facade of government during the last administration. I remain convinced there is a larger, untold story here, but I am less confident than I was a few months ago that the current administration is going to pull back the curtain or investigate how this all went down.

Read more about the Boundary Waters reversal here

*Update, 23 June 2021: It turns out we know exactly how this email read before it was redacted this time around.

And among the documents I’ve obtained is a fully redacted copy of the scenarios paper. It’s entitled “Twin Metals Potential Scenarios for Lease Renewal.” The title almost suggests that Twin Metals (or, more likely, Antofagasta’s WilmerHale lobbyists) provided the scenarios or developed them with Karen Hawbecker.

Perhaps the “comments” included were Hawbecker’s comments on scenarios created by lobbyists or with them? It’s worth noting that these scenarios emerge in the workflow at the Solicitor’s office just a couple of weeks after a July 25, 2017 meeting with Antofagasta, as the timeline shows. Did Antofagasta executives and their lobbyists arrive with these scenarios in hand? Were the scenarios the subject of the meeting?

In any case, Karen Hawbecker worked on the scenarios and forwarded them as separate documents, as scenarios 1, 2A, 2B, and 3, on August 6 and 7 2017 to Jack Haugrud, correspondence shows. The scenarios were then combined into the scenarios paper. Haugrud offers his opinion (“Karen, I”) in some back and forth with Hawbecker on August 7, 2017 that is also redacted.

So the latest redaction only served to direct my attention to these documents and raise the question why there should be sensitivity around them now. It would be troubling if attorneys at Interior were now trying to cover their tracks after following Antofagasta’s lead during the Trump era.

Federal Agencies Need to Deliver Themselves from the Legal and Ethical Morass Trump and his Cronies Left Them In

The 15th supplemental release of Boundary Waters documents in my FOIA case against the Department of Interior arrived yesterday. I’ve added the documents to documentcloud. Were I to characterize these records as disappointing, I might only be admitting that I still expect too much from them. Still, this release looks especially untidy, and there may be something going on behind the scenes — some change in staffing, for example — that I am not aware of.

First, the attorney assigned to my case in US District Court contacted me a couple of weeks ago to let me know that this production would be a few days late. When it came, the response letter, which accompanies every release and describes how many pages were reviewed, how many withheld, what exemptions were used, and so on, was missing. (Someone just forgot to attach it to the email, which begins “Attached is the Solicitor’s 15th Production response letter….”). The documents come from Brianna Collier, a career attorney in the Office of the Solicitor — who has been the main custodian of records in this case. We only catch glimpses of what Trump’s political appointees were doing when Collier is in the loop.

The documents themselves are heavily redacted, with deliberative process (b)(5) claimed throughout. Excerpts from Hein’s Legal Research Guides are the only records not redacted. They would be available publicly anyway. What can only be an earlier draft of the 19 page M-Opinion by then-Solicitor Daniel Jorjani dated December 5, 2017 is completely redacted. We know from the timeline that the memo was nearly finished by then, but instead of taking time to redact just those phrases and paragraphs which were still under deliberation, the FOIA officer applied a very broad brush on all 19 pages.

The FOIA officer took a slightly less aggressive approach to an August 7, 2018 memo written by Ryan Sklar on the Forest Service’s application to segregate 234,328 acres of federal land within Superior National Forest. This is the land withdrawn from mineral leasing and development while the US Forest Service completed “the necessary environmental analyses under the National Environmental Policy Act (or NEPA).” The law is clear. Sklar explains in a footnote:

Just one month later, of course, then-Secretary of Agriculture Sonny Perdue would cancel the two-year assessment, claiming that “the analysis did not reveal new scientific information.” So far, we have had to take Sonny Perdue’s word for it; the findings of the cancelled withdrawal study still have not been released. The cancellation meant that any “final decision” on the application for mineral withdrawal would be made without a complete case file — without the complete NEPA document. And without a “final” NEPA document, review would likely be guided by political considerations, not scientific evidence.

Except for an intriguing closing sentence, the discussion section here is fully redacted:

There’s not much to go on here, except Sklar’s final note: discussions of “next steps” around the Rainy River Watershed withdrawal were “ongoing” just one month before Sonny Perdue abruptly cancelled the application. There were, at that point, five months to go in the review required by NEPA, and pressure on Sonny Perdue was at its peak, with Trump publicly directing Perdue to look at the withdrawal “very strongly” and reassuring Minnesota mining proponents that they would “do very well.” Tom Emmer, Pete Stauber, Rick Nolan, and Paul Gosar kept the pressure on Perdue behind the scenes.

It’s unlikely Sklar’s legal memo refers explicitly to that pressure campaign, but it’s also hard to believe that he or anyone working on this issue at Interior was unaware of it.

The agencies now need to deliver themselves from the legal and ethical morass Trump and his cronies left them in. Secretary of the Interior Haaland should ask BLM to request a complete case file from the US Forest Service, with the necessary NEPA analysis, so that BLM can evaluate and review the withdrawal and so that she can make a lawful decision. USDA Secretary Tom Vilsack should release the preliminary findings of the cancelled two-year scientific study, unredacted. He should also ask the USDA Inspector General to review Perdue’s decision to cancel the withdrawal application and NEPA analysis. And though it’s unlikely they will do everything they should to set things right — that’s a tall order, and they’ve inherited a mess —  we can expect some steps in this direction before the end of next month, when the stay in Wilderness Society v. Bernhardt expires.

Read more about the Boundary Waters reversal here.

A BLM Map of Critical Minerals Near the Boundary Waters

The latest release of Boundary Waters documents arrived today, a 14th supplemental production in response to my FOIA lawsuit v. the Department of the Interior. I’ve put them online here.

Two things caught my attention right away: first, an inventory of documents the Solicitor’s office at the Department of the Interior put together, apparently in connection with the Voyageur litigation. A short Twitter thread calls out some items of interest.

Also among the records I received today: a Bureau of Land Management map showing prospecting permits and preference rights leases in Superior National Forest.

There are already a significant number of active leases and many more in the application stage that could eventually come online.

The purple plume of inferred and hypothetical reserves of critical minerals is especially noteworthy here.

We know from other documents I obtained that political appointees in the Solicitor’s office intended to position Antofagasta’s mine as a source of critical minerals; and after the Trump administration published a new list of critical minerals in 2017, Antofagasta itself even flirted briefly (in its 2017 Annual Report) with the notion that Twin Metals had significant cobalt reserves.

The Biden administration is currently reviewing the actions the Trump administration took on Twin Metals and — maybe just as importantly — they are undertaking a review of the critical and strategic minerals supply chain. If it were to be fully developed, that purple plume of hypotheticals and inferences could become a real-world industrial corridor.

Update, 12 May 2021: According to a May 10 Settlement Agreement in Center for Biological Diversity et al. v. Mitchell Leverette et al. (a case in the US District Court of the District of Columbia), the Bureau of Land Management will review its May 1, 2020 decision authorizing the extension of 13 of the prospecting permits indicated on this map. The renewals were made without an Environmental Assessment under NEPA or an effects determination under the Endangered Species Act. These thirteen prospecting permits are for all intents and purposes suspended until BLM completes its review; Antofagasta agrees not to engage in any ground disturbing activities. Antofagasta’s two mineral leases are also under review at Interior and USDA, and we can expect some news on that front in the June 22 filing in Wilderness Society v. Bernhardt.

Time for A Review

A number of writers — pundits and news commentators, mostly, people with large public followings — have been announcing lately that they are launching substack newsletters. Substack is subsidizing many of these moves with fat advances, but to hear these writers tell it, that’s not what’s motivating them: they are moving from mainstream outlets or starting a newsletter in addition to their regular gig, they say, because they hope the new format will allow them to write more freely, get out from under their editors’ thumbs, break some rules, offend orthodoxies, and tackle a wider range of subjects than they might when writing for mainstream media outlets.

I am pretty skeptical of these claims and read them mainly as marketing ploys, but I can sympathize with the urge, the urgently felt need, to branch out, find a new groove, and explore new topics. That does not mean I plan to switch this blog over to substack. I don’t have many (non-paying) subscribers as is (but I am grateful for those I have); and lacking the big follower counts and public platforms these writers have before they stage their own deplatformings and moves to substack, I doubt I could attract enough paying customers for the move to make much sense, financial or otherwise.

I’m nevertheless longing to do new things with this blog, no matter how many people subscribe to or read it, and make it more than a chronicle of my FOIA adventures, which is essentially what it’s become over the past year or so. My focus on that topic has brought me a few new subscribers, but it’s also slowed me down — I’ve allowed the slow trickle of documents from my FOIA lawsuit to set the pace — and boxed me into a single story.

I am restless and claustrophobic, off the page and on, so I don’t like feeling boxed in, physically or intellectually. Besides, I’ve got other stories to tell and other projects that need my attention. Some of them have grown out of the work on industrial development around Lake Superior that began more than a decade ago with 1913 Massacre; some of them (like this post on tribal consultation) arise from new connections I see between my work on industrial development and my interest in models of power and consent (which I’ve talked about under the rubric of The Asking Project); and some of them, thank goodness, have nothing at all to do with those things.

Of course, that doesn’t mean I am done with the Boundary Waters and the Freedom of Information Act — not just yet. My FOIA case in DC District Court is still open; and this week saw some new developments.

First, to celebrate Sunshine Week, I put up a new version of the FOIA webinar I gave back in July. The version that Friends of the Boundary Waters posted on YouTube did not include the presentation slides, because I failed to notice a Zoom prompt asking me whether I wanted to record my desktop until the webinar was over. I synced the slides with the webinar audio and created this new version. It’s easier to follow.

Second, a motion to stay was filed on Thursday in Wilderness Society v. Bernhardt, the main lawsuit challenging the Department of Interior’s renewal of Antofagasta’s leases. It appears that newly confirmed Secretary of the Interior Deb Haaland is less than enthusiastic about the lawsuit she inherited from her predecessor, David Bernhardt. The motion asks for a stay of 90 days so that Haaland and Secretary of Agriculture Tom Vilsack, both of whom have publicly opposed sulfide mining near the Rainy River Watershed, can review the matter. The review looks to be pretty comprehensive, and will cover the government’s current position, the reinstatement of Antofagasta’s mineral leases, and the historical lease files.

A review of that scope is likely to bring a lot of suppressed evidence — the findings of the abruptly canceled mineral withdrawal study, the stipulation of a production requirement, and so on — to light. In a Twitter thread about the filing yesterday. I wagered the review would undo Jorjani’s work:

Or we’ll see the scientific study resumed. Whatever route the review takes, the new Secretaries should also ask their Inspectors General to look into the conduct of the Solicitor’s Office at Interior and the Secretary’s Office at USDA over the past four years. There is plenty of evidence of undue influence, regulatory capture, administrative sabotage, and all sorts of corruption and malfeasance, from contempt of Congress to perjury and violations of NEPA. We need accountability in order to set things right.

If any of the records I’ve published along the way can help reviewers get closer to the truth of what happened, or help bring about a reckoning, then maybe it will all have been worth it.

Secretary of Agriculture Tom Vilsack Should Promptly Review the Trump Administration’s Decisions around Mining in Superior National Forest

The 12th supplemental production of Boundary Waters documents in response to my FOIA lawsuit is now up on documentcloud. This Twitter thread calls out some highlights:

What’s most remarkable is just how consistent this release is with previous releases. The story remains the same: the Trump administration’s decisions around mining in Superior National Forest, on the edge of the Boundary Waters, were heavily influenced by a lobbying blitz, interference with regulatory review, and a coordinated, high-pressure campaign to cancel a planned scientific study.

This latest release offers some new details and color around the decision to reinstate Antofagasta’s mineral leases, as attorneys at Interior work on the official reinstatement letter and the news release that will become part of the public record. Most of the editorial decisions they take are heavily redacted; but the decision to opt for an “if-asked” statement over an official press release is exactly the strategy taken with the initial reversal or M-Opinion in December of 2017. Under the subject heading “Twin Metals Acquired vs. Public Domain Lands,” there is more discussion about the map drawn by mining engineer Timothy Howell, and how to reconcile its boundaries with Antofagasta’s Preference Right Lease Applications. And those PRLAs are also the subject of yet another meeting at Interior in March of 2018 with a gang of attorneys from WilmerHale and Twin Metals. Their objective is to press Interior on Antofagasta’s Preference Right Lease Applications and fix the scope and schedule for environmental review, prescribing the “regulatory scheme” officials at Interior should follow. As I noted in my Twitter thread, Chris Knopf and I called out a strikingly similar effort in regard to these PRLAs at another March 2018 meeting.

The story these records (and all the records I’ve received) tell inevitably arrives at then-Secretary of Agriculture Sonny Perdue’s decision to cancel the mineral withdrawal study in Superior National Forest. I’ve written about this critical decision before (here, here, and most recently, here). It was the product of a coordinated pressure campaign by WilmerHale lobbyists, top executives at Antofagasta, the White House, Republican legislators, and the Congressional Western Caucus.

From this release, we learn a little more about that decision.  In the Spring of 2018, for example, attorneys at Interior still assumed that Perdue would allow the mineral withdrawal study to proceed. In fact, in April of 2018, Secretary Ryan Zinke was prepared to reassure Representative Betty McCollum that the scientific study would help satisfy NEPA and protect Minnesota taxpayers from environmental and economic disaster. Perdue’s decision would break that promise in order to satisfy President Trump.

So these records from the Department of Interior appear to shed light on corruption at the USDA. It’s clear that newly confirmed USDA Secretary Vilsack should promptly review Perdue’s decision, publish an unredacted version of scientific findings to date, and open an ethics investigation into cancellation of the proposed mineral withdrawal. It’s time to repair the damage Perdue did, return the agency to science, and restore the integrity of USDA.

A Pressure Campaign: New FOIA Releases And A New Filing in Wilderness Society v. Bernhardt

Well past due, but yesterday the 11th supplemental production of Boundary Waters documents in response to my FOIA lawsuit arrived. You can find them here. All the Boundary Waters records I’ve received to date — now approaching about 10,000 pages — are here.

This release includes more records from Briana Collier, an attorney in the Division of Mineral Resources at the Department of Interior. The records show Collier and colleagues in summer of 2018 conferring over litigation around the decision to reinstate Twin Metals’ mineral leases near the Boundary Waters; other email threads show lawyers for Twin Metals at WilmerHale communicating with BLM attorneys about their upcoming motion to intervene and some discussion about whether Minnesota or DC would be the better venue. Pedestrian fare, maybe, but the impression is, once again, of WilmerHale and attorneys at BLM working in tandem to protect and advance the financial interests of Chilean mining giant, Antofagasta, Plc.

Another exchange relating to Twin Metals prospecting permits shows Dean Gettinger, a District Manager at the Northeastern States District of the BLM, trying to “get things moving.” The Forest Service is under pressure to make a determination on the Twin Metals prospecting permits; and this looks like yet another instance where the mining company is driving the calendar of agency review. (That was the subject of an OpEd I published this summer with Chris Knopf.)

The pressure is on: in May, 2018, the mining company even contests whether its Preference Right Lease Applications (PRLAs) fall within the boundaries of the proposed mineral withdrawal area.

These are the same PRLAs that were under discussion at a March 6, 2018 meeting where Twin Metals asked for a Categorical Exclusion — essentially no environmental review at all — but said it would settle for an Environmental Awareness review (which is exactly what it got). We don’t know whether Howell determined that they fell within the proposed mineral withdrawal zone, because his response to this email is almost entirely redacted. He apologizes for his delayed response, then continues: “Technically there” and the rest is redacted under deliberative process privilege. It is unclear why a cut and dry matter like this — the question whether the leases fall within the boundaries of the map Howell drew — merits this kind of protection.

These are not just isolated instances of the mining company raising questions about the status of its applications or expressing impatience because time is money. A loosely coordinated, well-funded, extensive lobbying and pressure campaign was launched the minute the new administration took office. Just this week, in fact, a new filing in Wilderness Society v. Bernhardt gave us new details about how extensive this campaign was, with Representatives Tom Emmer, Pete Stauber, Rick Nolan, and Paul Gosar running interference for the mining company. I put together a Twitter thread about it:

The prime target of this pressure campaign was none other than Secretary of Agriculture Sonny Perdue, who alone had the power to cancel the proposed mineral withdrawal. Emmer was trying to arrange a meeting between Perdue and the CEO of Antofagasta as early as July of 2017.

We don’t know when they first met, but Perdue and Ivan Arriagada would meet in May of 2018, just around the time those PRLAs and the borders of the mineral withdrawal map were under discussion. One month later, Trump prematurely on purpose blurted out in Duluth that the mineral withdrawal was on track to be cancelled. “‘It’s now up to [Agriculture] Secretary [Sonny] Perdue,'” Trump told local elected officials and mining advocates at a roundtable before his Duluth visit last week. ‘And I know he’s looking at it very strongly, and I think you’ll do very well.'” The quote is from a story by Dylan Brown in E&E News included in the collection of documents I just received.

Here is video of the moment. Andrea Zupancich, mayor of Babbitt, MN, tees it up:

Anyone who has been paying attention to the way Trump speaks understands that this was an instruction. “He doesn’t give you questions, he doesn’t give you orders, he speaks in a code,” his former attorney Michael Cohen told Congress. The code here is pretty easy to crack: look at it “very strongly” (not intently, not with a careful eye to the most responsible course, but from an attitude of strength) and make sure the people who want this withdrawal undone “do very well.”* Shortly after this, Perdue was warned that Gosar and others would be “pissed” if the Forest Service didn’t follow through.

Under pressure, it appears, Sonny Perdue folded.

*Postscript: The very next day, June 21, 2018, Sonny Perdue’s calendar shows a “Twin Metals Brief” just before the Secretary heads over to the White House for a cabinet meeting. It doesn’t take a whole lot of imagination to guess the content of that briefing.

Read more about the Boundary Waters reversal here.

Documents Delayed and Permits Accelerated: A Critical Minerals Play?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more about the Boundary Waters reversal here.

An Appeal to the State Department

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

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

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

I posted a copy of my appeal on Twitter.

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

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

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

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