Tag Archives: evidence

Selective Evidence and the Office of the Solicitor

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

Read more about the Boundary Waters reversal here.

 

 

 

 

A Brief Note to Close the Year

Having my research on the Boundary Waters reversal featured in a front page New York Times story ought to have been the highlight of my year. But whatever satisfaction I might have felt when the story ran back in June of 2019, or when some of the documents I obtained were cited in Congressional hearings, has now given way to more deeply felt concerns about the direction things appear to be taking and the inadequacy of my efforts to do anything about it, except, perhaps, to point to more evidence of corruption, undue influence, and administrative malfeasance.

Over the past year, my plans for a documentary film about the mischief I’d begun to uncover were sidetracked, and — who knows — maybe even fatally derailed by a complex paper chase, which at this point involves about a half dozen Freedom of Information Act requests and a pro-se FOIA lawsuit I brought. The detour is now the road. It happens more often than not. Maybe the best I can do, at present, is to keep following the story where it leads and report on what I find along the way.

With the outcome of my records requests and the larger project of which they are a part uncertain, and with other projects also needing my attention, I’ve got plenty to keep me busy. Besides, the frustration of my own plans counts for very little when you consider the bigger picture.

Having obtained a favorable legal opinion from the Department of Interior and put the kibosh on a planned two-year scientific study, the mining company and its government touts are charging ahead. In just the past few weeks, we have seen Twin Metals submit a mine plan to the Bureau of Land Management and the Minnesota Department of Natural Resources, and Republicans have worked together with Treasury, OMB, and the Executive Office of the President to strip language from the 2020 budget that would have funded a new study by the National Academy of Sciences. Representative Betty McCollum has asked the State Department to submit a report on how the US will meet its obligations under Article IV of the Boundary Waters Treaty of 1909 if sulfide mining in Superior National Forest should proceed; and Voyageur et al. v. US, the most serious legal challenge to the Twin Metals project, is ongoing. But right now the momentum appears to be with those who would refuse science, ignore history, and subvert the law.

On September 27 of this year, the Department of State informed me that a Freedom of Information Act request filed in November of 2018 will not be completed until April of 2022.

In this regard, the momentum around Antofagasta’s Twin Metals project describes what is by now a familiar pattern. Many aspects of this story fit the new mold of our dysfunctional politics. Two of my pending FOIA requests — one to State, the other to Interior — seek documents on the use of the United States embassy in Santiago, Chile as a business backchannel. We don’t know why or to what extent the State Department was involved in advancing the business interests of a Chilean conglomerate. Questions persist about Trump’s first nominee for ambassador to Chile — Andrew Gellert, a longtime business associate of the Kushners — and about the nominee who replaced Gellert after his nomination was quietly withdrawn: Leora Levy, a republican fundraiser and Trump campaign surrogate from Connecticut who donated $25,000 to Trump’s inaugural. The quid pro quo shenanigans revealed by the Ukraine fiasco suggest these foreign policy questions might be worth pursuing. With the State Department telling me that I should not expect any response to my FOIA request until April 2022, we may have to resort to reading the tea leaves of whatever Boundary Waters report the State Department releases in response to Congresswoman McCollum’s request.

We head into the new year with a lot of issues in this case still unresolved, and it’s not clear that resolving them — finding out the truth, or discovering exactly how this particular deal went down — will necessarily have much bearing on how things actually turn out. The destructive forces set in motion are not likely to be stopped or even slowed by some new fact or revelation — though there’s always the chance they might. Power may not now be “immune to truth-tellers”, as Dahlia Lithwick recently wrote, but the people currently in power are certainly impervious to truth, contemptuous of knowledge, and dismissive of evidence. The answer to their epistemological nihilism is not despair, or the fond hope that one day history will vindicate the truth-tellers (and on this point I depart from Lithwick). The answer, instead, is to reclaim and reconstruct power. That is the essential work of the next decade.