Tag Archives: FOIA

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.

A Return to Science and a Push for Responsible Mining — Whatever That Means

New Boundary Waters documents arrived yesterday. I posted a short thread on Twitter as I reviewed them.

These records traverse familiar ground. Most date from January, 2018, when attorneys at Interior were preparing letters notifying the Forest Service and Twin Metals that the Solicitor’s Office had reversed the Obama administration.

For Twin Metals, this would mean that the Department of Interior had rescinded its rejection of their application for lease renewal. Not a green light — that would come more than a year later, in 2019 — but an encouraging sign of new and friendly disposition. For the Forest Service, the reversal would send an early signal that the two-year mineral withdrawal study would either have to favor renewal of Antofagasta’s leases (unlikely), or it would have to be cancelled if it were going to stand in the way of renewal. The issue raised questions about compliance with NEPA, as one heavily redacted exchange suggests:

It would be helpful to know more about how these attorneys saw the problem with NEPA at this time, especially when evaluating the action then-USDA Secretary Sonny Perdue in September of that same year, when under political pressure he abruptly cancelled the planned study.

The document trail invariably takes us back to that critical decision. It deserves careful and comprehensive review. There was some movement in this direction yesterday, when Senator Tina Smith wrote to Perdue’s successor at USDA, Tom Vilsack, and Secretary of the Interior Deb Haaland to ask that the BLM and Forest Service to start a new mineral withdrawal and segregation process and resume the study Sonny Perdue interrupted.

Smith’s letter calls for a return to science but recommends a more limited review than the situation warrants. She wants the agencies to determine whether copper and nickel can be “safely” mined in this area, and she also wants to present herself as a champion of Minnesota mining. It’s a move she seems to have learned from Amy Klobuchar.

Be that as it may, Smith offers Vilsack and Haaland one way forward over the next few months, during the court-ordered 90-day stay in Wilderness Society v. Bernhardt.

We must protect our precious wilderness. At the same time, we must pursue opportunities for both recycling and responsible mining of important mineral resources in the United States. If you believe—as I do— that the United States should lead the way in creating a clean energy future, then we must support public policy which allows for responsibly mining the minerals that this future requires. It is irresponsible and unethical to outsource exploitive [sic] labor practices and environmental degradation to other places while we reap the benefits. However, copper-nickel mining is not right for all places. There are some places too sensitive to mine. This is why we the [sic] mineral segregation and withdrawal study is so essential.

The letter simultaneously recommends precautions for the Rainy River Watershed and “responsible mining” to build “a clean energy future.” Those two things aren’t necessarily incompatible, but it’s unclear how this statement translates to coherent rule-or decision-making. It’s also the same line on mining that Secretary of Energy Jennifer Granholm has taken in recent public statements. How will the new administration determine what responsible mining for the clean energy future looks like? That is going to take some difficult conversations, but it’s not an issue Granholm, Vilsack, and Haaland can or should put off for very long.

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.

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.

Read more about the Boundary Waters reversal here.

Two Sets of Boundary Waters Documents: The Fallout from the Reversal

Two sets of Boundary Waters documents arrived yesterday afternoon.

The first set of documents is the tenth supplemental production — the December production — in response to my FOIA litigation. It includes more records from Briana Collier, 411 pages dating back to 2018 and mainly to do with the fallout from the Boundary Waters reversal: attorneys at Interior prepare for litigation over the reversal and start to gather materials to respond FOIA requests (including mine). I’ve put these materials online here.

The Collier correspondence shows attorneys at Interior searching for and reviewing letters and lease files from 1966 forward to prepare for litigation in the Voyageur case, for instance. In one exchange, the litigation specialist at BLM is apparently trying to reconcile the current lease form with the historical leases. Her questions have been redacted:

This same collection of correspondence also offers a glimpse of attorneys at Interior processing multiple FOIA requests at around the same time that Solicitor Daniel Jorjani was putting the Awareness Review Policy formally in place. There appears to have been some confusion about how to run the records search and how to include custodians who had taken on new assignments, in different departments. At one point, Collier apologizes for the “mess”:

The second set of records in this release includes 126 pages of documents previously withheld until the White House and the Office of the Secretary could review them. These records are now online here. They consist mostly of regular briefings by White House Liaison Lori Mashburn — another political appointee who came to Interior via the Heritage Foundation and the Trump 2016 campaign. These briefings present roundups of news coverage, summaries of schedules and announcements, tweets by Zinke that Mashburn deems “notable,” and the occasional flattering detail — e.g, Zinke’s appearance on the History Channel program Navy Seals: Kill or Capture.

Pages 107-126 of this 126 page document present Daniel Jorjani’s email correspondence and a briefing prepared for “the Duluth trip” (Trump’s June 2018 trip to Duluth, which I wrote about here) by Mitch Leverette, Acting Eastern States Director. The part of Leverette’s memo dealing with “Federal permits, leases, and extension requests” has been fully redacted. The issue was still very much in the works:


One takeaway from these documents is that the Boundary Waters reversal — the Jorjani legal memo of December 2017 — ruled in Antofagasta’s favor but unsettled the regulatory picture for much of 2018. “Questions regarding how to interpret the original lease terms have also persisted,” notes Leverette in his memorandum; and Interior was dealing with other questions as well. An exchange in the December production shows Kevin Baker, Vice President for Legal Affairs at Twin Metals, trying to sort out some “confusion based on the recent approvals” from the Bureau of Land Management and US Forest Service.

Subsequent actions by Interior and USDA were intended to give Baker and executives at Twin Metals and Antofagasta the results they sought and the clarity they needed to proceed. Now, with the arrival of a new administration only weeks away, things may seem little less settled.

Read more about the Boundary Waters reversal here.

Another Political Appointee’s Calendar Among New Boundary Waters Documents

In response to my Boundary Waters FOIA case, the US Department of the Interior today released another 446 pages. I put them online here.

This release includes the 2017 calendar of Timothy Williams, a political operative who came to the Department of Interior via the Koch-backed Americans for Prosperity and Trump’s 2016 campaign in Nevada. “Although Williams doesn’t appear to have experience working on issues that fall within the purview of Interior,” notes the watchdog Department of Influence site, “the department’s press release announcing his hire advertises that Williams is an ‘avid sportsman and accomplished hunter and fisherman.'” Williams is now Principal Deputy Director at the Office of Intergovernmental and External Affairs at the Interior Department. Last year he was the subject of an ethics complaint filed by the Campaign Legal Center.

According to an email accompanying it, Williams’ calendar was scheduled to be released and posted (presumably to the Department’s calendar site) on August 31, 2018, but I don’t see it there and can’t find it elsewhere online. Maybe its release was held up for some reason. In any case it’s new to me, and even at first glance, Williams calendar will allow me to make some additions to the Twin Metals timeline. For example, a June 22, 2017 meeting Williams had with Chad Horrell of the DCI Group (on behalf of Sportsmen for the Boundary Waters) and a “quick huddle” on December 21, 2017 to discuss the Solicitor’s reversal of the M-Opinion along with the Migratory Bird Treaty Act and the signing of a Secretarial Order.

Taking a broader view, what I said the other day about the last release can also be said of this one: this looks more like a document dump than a meaningful and organized response to my request. The release includes another multiple page spread sheet of FOIA requests sent out for review by Justin Wilkinson from the Secretary’s FOIA Office under the FOIA Awareness policy. The only noteworthy thing about this item might be that it demonstrates, once again, that the claims about custody and control advanced by Interior in the initial stages of this case are claims of convenience, and the firewall between the Office of the Secretary and the Solicitor’s Office is a lot more permeable than they pretended.

The Office of the Solicitor is withholding 16 pages in full. It’s possible from the emails included here to guess what some of those documents are: for example, a “proposed agenda” attached to an August 28, 2018 email from an attorney at the DOJ’s Environment and Natural Resources Division is probably among the withheld documents. But I can’t be sure, of course, because the letter from the FOIA office specifies only that some documents are being withheld, not which documents. I’m also unsure whether these documents or other redactions and documents withheld under Exemption 5 will be covered by the Supreme Court’s pending decision in US Fish and Wildlife v. Sierra Club; and from what I am reading, it’s likely that decision will protect deliberative process at the cost of greater transparency.

Read more about the Boundary Waters reversal here

Some New Boundary Waters Documents, Many Others Still Under White House Review

Yesterday I complained about delays in document production; today a batch of delayed documents arrived. I’ve posted them to documentcloud here.

This appears to be the September production described in the October 6 Joint Status Report, which was held up because some pages required reviews by the White House and the Office of the Secretary. The letter that accompanies this release provides a little more information and tells a slightly different story.

Whereas the Joint Status Report said 6 pages were still awaiting White House consultation, this letter brings that number up to 111 pages. What’s in those pages, and who at the White House needs to review them, remains unclear; but it looks as if when it comes to Antofagasta’s leases near the Boundary Waters, White House involvement with the Office of the Solicitor is more extensive than previously acknowledged.

I’m just starting to review the 583 pages released. They include Gareth Rees’ 2017 calendar, which has already been released; a long list of FOIA requests attached to an email dated July 11, 2018, asking those whose names appear in the requests to review and comment within 72 hours, in keeping with the newly established Awareness Process for FOIA Productions. With the exception of that email, which is of some interest, given the controversy over the Awareness Process, these pages look more like a document dump than an organized and meaningful response to my request. But I plan to go through them and make what additions I can to the timeline.

And even a quick, initial review turns up a few highlights: a list of prohibited holdings (or investments) to prevent conflicts of interest, issued by the Department of the Interior Ethics Office, and which Doug Domenech appears to have greeted with some alarm: “Wow. These lists seem substantially longer than the one that was given to me before. Are they changing?” I posted the list on Twitter just a little while ago. I don’t understand why Antofagasta is not listed along with Duluth Metals and Franconia Minerals.

Doug Domenech counts as a person of interest in my investigation. He is one of the first people to brief the White House on Twin Metals, in June of 2017, just one month after Antofagasta executives fly up from Chile for meetings at Interior and the White House. He does not appear to have been in the White House loop in June of 2018, however, as the White House prepared for President Trump’s visit to Duluth, Minnesota. (More on that here.)

The only trace I’ve seen of those preparations is included in this document production: a June 15, 2018 email from Daniel Jorjani to David Bernhardt, forwarding the Twin Metals Information Memorandum that the Bureau of Land Management prepared for “the Duluth trip.”

The Information Memorandum is not included in this release; perhaps those are the 5 pages withheld in full. But sometime between June 15 and June 20, someone in the White House must have worked their way through it and developed talking points for the announcement Trump made on that trip: “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.”

The June 2018 Information Memorandum must have sketched out a plan to “rescind the federal withdrawal.” That wasn’t just a throwaway line, but one Trump read directly from the teleprompter to big applause. As we know, the rescission would not officially happen until September of that year, when Secretary of Agriculture Sonny Perdue canceled the two-year scientific study. His explanation that the study had yielded no new scientific information appears to have already been a foregone conclusion for a few months.

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).

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.