Tag Archives: Department of Interior

Bernhardt, Biodiversity, and the Boundary Waters

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.

A Note on the Jorjani Confirmation Hearing

The way Interior has acted under the Trump administration is the textbook definition of a political cartel, using state resources to help the special interests. And it sure looks to me like Mr. Jorjani has been a key member of the cartel.
-Senator Ron Wyden

Jorjani_ConfirmationWhen asked by Senator Manchin whether he could set aside political allegiances and provide “forthright legal analysis,” Daniel Jorjani offered assurances, but his confirmation hearing on Thursday kept circling back to the question.

Senator Cantwell said she was “trying to get an understanding of your commitment to what is the law and whether you will help follow the law. That’s the key thing I’m after.” Senator Wyden wanted the other nominee in the room, Mark Greenblatt, to give him written specifics about how as Inspector General at Interior he would maintain his independence, “and keep these political appointments”  — people “like Mr. Jorjani,” he added — “from interfering with protecting the public.”  Senator King wanted to know whether Jorjani has had any contact with people associated with Freedom Partners or the Koch Brothers since taking his post at Interior. Jorjani was not prepared to say he had not, and at the end of the hearing promised to go back and check.

When her turn came, Senator Hirono said it was “hard to believe” that Jorjani’s work for the Koch Brothers between 2009 and 2017 “does not influence [his] opinions.” She cited his M-Opinion on “incidental take,” according to which oil companies that inadvertently kill migratory birds (in a spill, for instance) will no longer face penalties or prosecution. Hirono wanted to know why Jorjani issued that opinion.

Hirono: A lot of these challenges under this law have come from, have been lawsuits involving the oil and gas industry. So who benefits most from your opinion that totally stopped prosecutions for incidental take under this law? What industry most benefits from your opinion?

Jorjani: I’m not aware of any particular industry that benefits from this. I’d like to think that he American people benefit from a restrained approach.

Hirono: Yeah, I’d like to think so too. But you cannot escape the conclusion that the people you used to work for before, the Koch Brothers, this is one of their biggest issues that they wanted to have done away with….. I would say the oil and gas industries are the biggest beneficiaries.

Senator Manchin summed up what appeared to be the skeptics’ view:

as Acting [Deputy Solicitor General] you came in and overturned 7 of the 8 [Tompkins] opinions….Those things were basically approved as the previous administration was outgoing. We found also these had been exhaustively studied and Ms. Tompkins was well regarded and following the rule of law. And in all honesty the observance I have is that basically that your political ideology overtook…the rule of law.

For his part, Jorjani made the striking claim that a directive from the president’s Chief of Staff authorized him “to review every regulation and every opinion,” including previous M-Opinions by his predecessor, Solicitor Hillary Tompkins.

The directive in question appears to be the Memorandum for the Heads of Executive Departments and Agencies issued by Reince Priebus on January 20, 2017, which put in place a Regulatory Freeze, affording Trump’s political appointees “the opportunity to review any new or pending regulations” and specifically any “questions of fact, law, and policy they raise.”

This is the first time I have heard anyone at Interior publicly and directly connect the overturning of Tompkins’ M-Opinions with this directive. Jorjani seems to have read it expansively, virtually as carte blanche.  He called it the “catalyst” for his multiple reversals of Tompkins. It now has a place on the Twin Metals timeline.

Read more about the Boundary Waters reversal here.

David Bernhardt’s Briefings on the Boundary Waters Reversal

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?

Read other posts about the Boundary Waters reversal here

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

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

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

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

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

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

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

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

AprilXXSol

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

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

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

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

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

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

Further,

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

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

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

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

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

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

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

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

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

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

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

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

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

Read other posts about the Boundary Waters reversal here.

A New Boundary Waters FOIA Request

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.

A Standing Offer to Steve Kornacki

Last week, Richard Painter tweeted out this clip of an interview he did with NBC’s Steve Kornacki back in April of 2018. At the time, Painter was running against Tina Smith for Al Franken’s senate seat.

Notice what happens just before Kornacki pushes Painter on the credibility of Franken’s accusers — starting around the 1:07 mark here. Painter says that Smith should be “a lot stronger against” Trump on three fronts: first, she should have come out against his trade war; second, she should call for his removal from office, because he is unable to execute his constitutional duties; and

furthermore, we have serious problems in the state of Minnesota where out of state mining interests are coming into our state, large conglomerates, with the support of the Trump administration, seeking to destroy our Boundary Waters and other waterways in the state of Minnesota. Our establishment Democratic, Farm Labor, senators and members of Congress, most of them are not standing up to that. So we need to have — both parties to be fixed; both parties need to be fixed.

Kornacki sums up what he is “hearing”: “I’m hearing trade, I’m hearing impeachment,” and then he rushes headlong into the topic that will dominate the rest of the segment: whether Richard Painter believes Al Franken’s accusers. How is it possible Kornacki didn’t hear the bit about mining interests? It’s all the more remarkable because Painter spent the most time on the mining story, about twice as much time as he did on impeachment, and a lot more time than he did on trade. How could Kornacki simply skip over it? Why no follow up?

The most likely answer is, Kornacki already knew where this interview was heading — back to Al Franken — and the mining story looked like nothing more than a detour. In retrospect, however, it looks as if Kornacki missed a big political story, or several stories, details of which are only now coming to light.

To stick just to the Boundary Waters story for the moment: a foreign mining company and its lobbyists appear to have dictated decisions at the US Department of Interior. As documents obtained through FOIA make clear, these decisions were coordinated at the highest levels of the US government, with USDA, the White House and the State Department all in the loop. And it sure looks as if the fix was in from the very first days of the new administration, with a predetermined outcome guiding the moves federal government officials made behind closed doors, without public input, and with disregard for science, economics, and the law.

I’ve offered to buy Steve Kornacki lunch and walk him through the details of this story. That’s a good faith, standing offer. There is even more at stake here than the just administration of public lands and the protection of waterways. This is also a story about a coordinated effort to sidestep democratic governance and undermine our shared public life. That ought to be of some interest to a national political correspondent for NBC News.

Read other posts about the Boundary Waters Reversal here.

A Meeting in Santiago about Mining in Minnesota

I’d like to focus, in this post, on what is so far a unique entry in the Twin Metals timeline: an April meeting at the US Embassy in Santiago Chile, with Ivan Arriagada, the CEO of Antofagasta Plc, and Carol M. Perez, the US ambassador to Chile. We know about this meeting only through documents obtained by Freedom of Information Act requests, and specifically from just one email dated 26 April 2017, sent by Briana Collier to Jack Haugrud:

BrianaColliertoJackHaugrud

Intriguing: but for now, the best I can do is provide a little context.

As the timeline shows, the meeting at the US Embassy in Santiago, Chile in the week of April 26th took place during a period of intense activity around the Twin Metals project. It was held just a little over a week after Mr. Arriagada had written directly to then-Secretary of the Interior Ryan Zinke, requesting an in-person meeting in Washington, DC, on either May 2nd or 3rd. (Arriagada would come to Interior for the first time on the 3rd. Internal emails show that he met on that occasion with several officials at the Department of the Interior, but Zinke is not among them, at least not on the calendar entries I have seen; and if Arriagada met with Zinke separately on May 3rd, there is no entry for any such meeting on Zinke’s official calendar.) So perhaps the embassy in Santiago serves as a way station of sorts, a first stop for Arriagada on his American tour.

It was probably here, in Santiago, that Arriagada first started to make the case he would make in Washington, DC. The letter to Ryan Zinke lays out the appeal the mining company would make at Interior, and it also helps us gain an impression of what this meeting at the embassy was about. It opens with Arriagada declaring that he is “proud” to associate himself and his company — which has never operated a mine in the United States — with “the development of strategic minerals in the United States.” Here in the US, Arriagada clearly understands, minerals acquire “strategic” status when mining companies run into permitting delays and other difficulties. It is, as I’ve noted elsewhere, code for overriding and rolling back environmental regulations. (This leads me to suspect that Arriagada’s letter to Zinke was actually written by the lobbyists at WilmerHale. Whether they played a role in arranging the meeting at the US embassy is impossible to say, given the evidence we have.)

Arriagada’s letter goes on to explain that Antofagasta has already spent “upwards of $400 million in investment” on the “exploratory phase” of Twin Metals. The company frequently brandishes this figure, but I’ve never seen it broken down. Interior’s own Kathleen Benedetto will repeat the $400 million figure a week later, on April 25th, when she briefs Zinke in preparation for his 26 April meeting with Representatives Emmer and Nolan; and the number will be repeated in news stories as well. I am not sure what “upwards” means here, but it seems to be doing an awful lot of work. Principal Deputy Solicitor Jorjani seems to believe caution is warranted: near the end of his December 2017 memo, he notes only that the company “has asserted that it has spent over 400 million in exploration activity.”

For what it’s worth, $400 million is not a number Antofagasta uses in its communications with shareholders or in its financial statements. (See, e.g., here, here and here.) The number routinely associated with the Twin Metals project in these communications is black, not red: $150 million — the value PWC, Antofagasta’s auditor, assigns to the project as an “intangible asset.” When it comes to investments, both the 2015 and 2016 Antofagasta annual reports note a decrease in exploration and evaluation costs, reflecting a “general decrease” in exploration activity “at the Centinela District in Chile and the Twin Metals project in the United States.” There is the added minor discrepancy that this letter characterizes Twin Metals as a “mineral development project, currently in the exploratory phase,” while in the 2016 and 2017 annual reports, the project has already advanced from the Exploratory phase to the Evaluation phase. It appears shareholders and US government agencies are being told two different stories about Twin Metals. In any case, the big round $400 million number is the thing that sticks. It’s used to intimidate and spook. A year later, Zinke will tell Representative Betty McCollum that the Obama administration’s decision exposed taxpayers to “hundreds of millions of dollars” in takings litigation. He was probably recalling Arriagada’s number, or Benedetto’s spin on it.

We now know that Zinke and the Department of Interior were doing Arriagada’s bidding all along, and they’d gotten started well before this letter was written. (And if WilmerHale did in fact draft this letter, then it’s really just some stage business, to create a paper trail for a meeting to discuss an ongoing effort coordinated by WilmerHale.) Interior officials appear to have been less concerned about the exposure of US taxpayers than about the risk the mining company had taken on: “our past and future investment now hangs in the balance,” Arriagada writes in April of 2017. He asks to meet with Zinke to discuss “a viable path forward” for the Twin Metals project. The letter lists three obstacles the Obama administration put in Antofagasta’s way: the M-opinion issued by solicitor Hilary Tompkins; the decision by the Bureau of Land Management to rescind the Twin Metals leases, based on the M opinion; and the withdrawal of thousands of acres of Superior National Forest from mineral development initiated by BLM and the US Forest Service. Remarkably, before Zinke resigned in disgrace, he, Deputy Solicitor Daniel Jorjani, and other officials at the Department of the Interior (and the Department of Agriculture) came through for the Chilean mining company on all three counts.

How any of this work on the mining company’s behalf at Interior bears on the meeting in Santiago, Chile, and what any of it has to do with Carol Z. Perez, the US ambassador to Chile, is hard to say. It’s still not clear why Arriagada thought he should stop first at the embassy in Santiago. A courtesy? An opportunity to get some pointers on how to deal with the new administration? Or something even more specific? To get a better idea, I’ve filed two FOIA requests with the Department of State for communications and documents that will help illustrate the meeting Perez had with Arriagada, but the State Department has labeled the requests “complex,” and I have yet to receive any responsive documents.

We know that Briana Collier briefed Perez, so Perez was looking at the Twin Metals project through the lens of the briefing document Interior provided. And if this briefing was anything like the one page briefing prepared around the same time for Zinke by Kathleen Benedetto — if that April 25 briefing represents the general position of Interior at that point in time — we can observe one thing at least. By April, the US government had completely set aside the previous findings of the US Forest Service and any consideration of the serious environmental risks posed by sulfide mining operations on lands adjacent to the Boundary Waters. The Benedetto briefing makes no mention whatsoever of these concerns. In fact, when Doug Domenech took a briefing on the Twin Metals project for the White House a little over a month later, on June 1, 2017, he apparently read what Benedetto sent him and needed some clarification on this point. That much is clear from Benedetto’s reply:

Benedetto_to_Domenech1June2017

Sic. And with that sloppily written gesture, which barely manages to disguise its contemptuous disregard, Benedetto relegates all science and science-based policy that would caution against permitting sulfide mining in this region to what “people opposed to the project believe.” (The only risk Benedetto appears to consider worth mentioning is the exposure of the American Taxpayer — the initial capitals are hers — to takings litigation, adding that BLM values the Twin Metals deposit at $49.48 billion. The figure is based on a 2014 BLM report that assumes a 44% rate of return. That $400 million investment sure has grown.)

The meeting at the embassy in Santiago needs to be seen in the context of this coordinated push to overturn Obama era decisions, sideline science and environmental protections, and turn Antofagasta’s much-touted investment to a tangible asset — a working mine. Without some response to the Department of State FOIA requests, context will have to substitute for content. Why should the State Department have been asked to intervene in the Twin Metals matter?

Perhaps the aim of this meeting was not to involve the State Department at all. That may not make a whole lot of sense, on the face of it. Perez made her career in the State Department, serving in various posts around the world since the 1980s. She worked for Condoleezza Rice, did a brief stint in Italy, and coordinated State Department anti-drug trafficking efforts before President Obama appointed her US Ambassador to Chile in 2016. She appears to enjoy no special favor with the Trump administration, and she was slated to be replaced by a Trump nominee: Andrew Gellert, who was nominated to the post on January 4th, 2018. And Gellert would be much more closely aligned with the White House than with foreign service officials in the State Department.

This is one last piece of context to consider. We don’t know why Arriagada brought the US embassy in Santiago into the loop on the Twin Metals project. It seems tolerably clear, however, that the US embassy in Santiago would have remained in the loop, and in much closer communication with the Trump White House, had Andrew Gellert been confirmed as US ambassador to Chile. As was noted at the time of his nomination, Andrew is the son of George Gellert, a longtime business associate of Charles Kushner. The Gellerts and the Kushners have done business together for decades, often by nothing more than a handshake — no contracts. Andrew is President of the Gellert Global Group, a food importing conglomerate that does some dried fruit and nut business in Chile, and also counts among its holdings and investments “numerous real estate ventures” with the Kushner Companies. After Charles Kushner’s conviction and imprisonment a decade ago, George Gellert started working closely with Jared Kushner on a number of deals, including the disastrous 666 Fifth Avenue deal. It seems worth noting — even if it’s hard to figure out whether it amounts to anything at all — that back in August of 2018, just a couple of weeks after Brookfield Asset Management paid $1.3 billion to rescue Jared Kushner and George Gellert from 666 Fifth Avenue, Andrew’s nomination to be ambassador to Chile was quietly withdrawn.

Demagoguery in Duluth

Earlier this week, in Duluth, Minnesota, Donald Trump stated that the reversal of Obama-era protections for the Boundary Waters promised great things “for our amazing people and miners and workers and for the people of Minnesota.”  Bizarrely, the president went so far as to claim that mining the Duluth Complex would “make it from an environmental standpoint better,” though it’s impossible to say what exactly “it” might refer to here.

He framed these remarks as an announcement, but it’s also difficult to say what, exactly, he was so “proudly announcing.” Those like Daniel Dale who track the president’s speeches have noticed that he tends to present as new and exciting events and initiatives that are long past, or which in fact have failed or run into trouble. This is especially true when it comes to the president’s statements about blue collar jobs, factories, and the economy.

The timeline clearly shows that the Department of Interior started taking meetings with lobbyists and representatives of Antofagasta Plc and Twin Metals in April of 2017, worked closely and steadily with them through the summer and fall, and issued a legal memo favorable to the mining companies in December of that year. Secretary Zinke’s latest action — the reinstatement of Antofagasta’s mining leases in Superior National Forest on May 2, 2018 — was over a year in the making. Almost all of this work was done behind the scenes, without meaningful public participation. Announcements would only have drawn unwelcome attention.

In Duluth, the announcement of “first steps” that were in fact already taken might have been made to pre-empt or drown out the real news of this week: the filing of a Complaint in the US District Court for the District of Columbia by a group of ten Minnesota plaintiffs against the Department of Interior, the Bureau of Land Management, Secretary Ryan Zinke, and BLM’s Brian Steed.  The Complaint charges that the reinstatement of Antofagasta Plc’s mining leases in Superior National Forest “exceeds their authority under law and is arbitrary and capricious” and asks the Court “to enjoin them from further consideration of applications to renew the two leases.”

Filed yesterday, just hours after Trump’s Duluth rally, this Complaint is actual news. It will not get one tenth of the coverage Trump’s bluster receives.

There’s little if anything that’s new and even less of substance here. I include the video because it’s helpful to consider where Trump is clearly reading from prepared remarks (which might indicate some actual administrative policy step) and where he is simply wandering off on his own into vague promises of some “better” future. He did the latter for most of the minute he spent on the subject of Superior National Forest, veering off, at the end, into incoherence.

Here is my transcript of his remarks on the topic:

Under the previous administration, America’s rich natural resources, of which your state has a lot, were put under lock and key, including thousands of acres in Superior National Forest. You know what that is, right? Tonight I’m proudly announcing that we will soon be taking the first steps to rescind the federal withdrawal in Superior National Forest and restore mineral exploration for our amazing people and miners and workers and for the people of Minnesota, one of the great natural reserves of the world. And we’ll do it carefully, and maybe, if it doesn’t pass muster, we won’t do it at all, but it is going to happen I will tell you that. It’s gonna happen. And it’s happening fast. We’ve already taken it as you know a long way down the road. And it’s gonna make things better. It’s gonna make it from an environmental standpoint better. 

Here, as far as I can tell, is the substance of his prepared remarks.

Under the previous administration, America’s rich natural resources were put under lock and key, including thousands of acres in Superior National Forest. We [have taken] the first steps to rescind the federal withdrawal in Superior National Forest and restore mineral exploration [in] one of the great natural reserves of the world. 

The opening jab at Obama, who locked away riches that are rightfully ours, also makes a mockery of the very idea of conservation and environmental protection. But who’s really paying attention? The audience cheers at the mention of Superior National Forest: “you know what that is, right?” Trump clearly does not, but he tries to milk the cheer anyway; it’s a variation on the tired old comedian’s schtick: who here is from Jersey? Anybody? New Jersey!

Superior National Forest is seen here entirely through the lens of extractive industry: a “natural reserve,” a store of minerals. Just as importantly, the statement makes no mention of the risky mining that this will involve — sulfide mining, a kind of mining the amazing people of the Iron Range have never done before, and which has the potential to destroy the very things people in Minnesota prize about Superior National Forest and the nearby Boundary Waters area.

Marshall Helmberger sums it up in a must read article on the new Complaint in The Timberjay :

Former Forest Service Chief Tom Tidwell, in December 2016, issued detailed findings of fact concluding it was likely that acid mine drainage from the Twin Metals mine would contaminate the BWCAW and cause adverse effects on the water quality, fish populations, aquatic ecosystems, and animal species. Tidwell further considered the possibility of containment, mitigation and remediation efforts and found that very few would be compatible with maintaining the BWCAW’s wilderness character.

While it appears that the president’s prepared remarks also included some vague gesture toward environmental responsibility, Trump turns that bit into a meaningless jumble, saying at first that the mineral exploration of the Duluth Complex will only go forward if it passes muster, then assuring the audience that “it is going to happen…It’s gonna happen,” and when it does happen, “it” is going to make “it” better. “It” here can mean anything, or nothing at all: he’s not offering the crowd anything beyond the word “better,” which is pretty much all they came out to hear anyway.

Purdy on Public-Lands Populism

From the closing paragraphs of Jedediah Purdy’s Whose Lands? Which Public?

In its monuments proclamations, the Trump Administration asserts a sweeping power to reclassify fifteen million acres of protected federal land and hundreds of millions of marine acres. The proclamations already issued, which purport to strip more than a million acres of monument status, are redolent of this Administration’s illiberal and procedurally dubious tendencies. They elevate to federal policy the themes and goals of a strand of Western populism that is tainted with outlawry and racism. The proclamations also cater to extractive industries, particularly uranium, oil and gas, and coal, in ways that resonate with the Trump Administration’s relentless mixing of public wealth and private interest–in a phrase, its penchant for corruption….

Corruption is not a novel concern here. For well over a century, the field [of public-lands law] has been shaped by recognition that precipitate and opportunistic privatization is a perennial temptation in a body of law that governs nearly a third of the country’s acreage and a great deal of its natural wealth. The Executive branch’s capacity for rapid, unilateral, and obscure action makes it especially suited to this form of misappropriation. Recognition of these facts is built into public-lands law in the long-standing asymmetric preference for Presidential power to preserve lands over Presidential power to privatize them…. The kind of opportunistic favoritism that the Trump proclamations display is precisely what public-lands law has been structured over centuries to avert. These proclamations are paradigms of why unilateral Presidential reclassification toward privatizing natural resources would be anomalous in public-lands law. A Court would properly consider the anomaly in deciding whether the power to create national monuments should imply the power to unmake them.

In the case of the Trump proclamations, the question of opportunism and favoritism in reclassification decisions interacts with the influence of racially inflected nationalism and localist outlawry on the Administration’s priorities. Here too, as with corruption, these themes are not novel or alien to public-lands law. Extractivism, settler-colonialism, and the priority of property-style resource claims and local control are, in key ways, continuations of the themes that governed the first hundred years of public-lands law. Their constituencies have never left the field. It is partly because of these constituencies’ persistent opposition to preservation agendas that public-lands law has always been inflected by disputes over national identity, from the utilitarian nationalism of Gifford Pinchot and Theodore Roosevelt’s national forests to the national parks’ much-advertised status as the American answer to Europe’s cathedrals to the claim that wilderness preservation would keep the country from becoming a “cage.”

Here too, public-lands law has been shaped by grappling with the themes that the Trump proclamations raise. And here too its shape contains a good part of an answer. The public-lands populists’ claims on behalf of privatizing and extractive policies already have a specific legal expression that is deeply embedded in public-lands law: in long-standing public rights-of-way across the federal lands of the West, in mining and mineral-leasing regimes, in grazing rights, and in the default policy of extensive public recreational access — and, above all, in the private real estate that was substantially created under federal privatization schemes. In other words, these claims do not come from outside public-lands law. They are part of it, and they occupy a specific place in its structure. Where they have been vested, they tend to persist within new regimes that otherwise emphasize preservation over extraction and economic use. On multiple-use lands, they play a prominent part in the statutorily mandated planning process. Where, however, they are not vested but take the form of inchoate expectations of continued access, they yield on categorically protected lands: new privatizing and extractive claims are almost uniformly excluded under preservation regimes. For such claims to get traction again, the lands themselves must be reclassified. That reclassification is generally reserved to Congress. If the Antiquities Act authorizes the President to hand a victory to public-lands populists by reclassifying hotly contested lands, then it is a dramatic anomaly in public-lands law. It would authorize constant perennial and shifting reopening of precisely the disputes that the field exists to structure and resolve, and through a mechanism that is procedurally orthogonal to the rest of the field.

The Trump proclamations raise a novel question for interpretation of one of the most important public-lands statutes. Like much that this Administration does, however, it is not so much new as it is an effort to reopen questions that many of us had hoped were closed. In this case, they should remain closed.

McCollum Questions Zinke on the Boundary Waters Reversal

This morning, Interior Secretary Ryan Zinke appeared before the House Appropriations Committee at a hearing on the FY 2019 Budget.  The video below marks the moment when Minnesota Representative Betty McCollum questioned Secretary Zinke on the Boundary Waters reversal.

It begins with an exchange on Bears Ears and Grand Staircase, in the course of which Zinke says reporting in the New York Times based on U.S. Department of Interior memos is not “credible.” Fake news.

McCollum then moves the discussion to the Boundary Waters reversal. Her main question, which she asks in a few different ways, is whether Deputy Solicitor Jorjani met with any stakeholders other than lobbyists for Twin Metals Minnesota before issuing his reversal memo.

Zinke’s response that this is all part of the public record is at best disingenuous, given that nearly all the information we have to date about the reversal is the result of FOIA requests; and it’s also Trumpian in its post-truthiness, since Zinke just declared a few moments earlier that reporting based on Department of Interior records is not to be trusted.

At any rate, here is the full exchange: