Tag Archives: FOIA

Sizing Up A Successful FOIA Litigation

Bill Moyers drafted this paragraph for President Johnson’s FOIA signing statement in 1966. LBJ rejected it, but it’s a good reminder of what FOIA is really all about, or should be about.

My Boundary Waters Freedom of Information Act case, Galdieri v. Department of  the Interior, is about to wrap up, with a Stipulation of Dismissal to be filed shortly.*

In my first outing as a pro-se FOIA plaintiff, I obtained over 6,500 pages of previously unreleased records. Some of these records made their way into congressional hearings, news stories public commentopinion pieces, and a webinar. Maybe they contributed to the public understanding of decisions the previous administration made; maybe they even helped change some minds. I’ll probably never know. Instead, I’m trying to sort through what I learned in the process and how these lessons might apply to my work in the future.

While there’s no formal judgment I can tout, a Settlement Agreement covers my litigation costs (a $400 filing fee), and I’m happy to take that as tacit admission that I “substantially prevailed,” in terms of the Freedom of Information Act. The statute says “a complainant has substantially prevailed” — and is therefore entitled to litigation costs and attorney fees — “if the complainant has obtained relief… through a voluntary or unilateral change in position by the agency.” That’s essentially what happened here, when the Department of the Interior agreed to review over 25,000 pages of records it had held back.

I might have pressed for even more than the filing fee, but I am not sure how strong my case would have been. In Cuneo v. Rumsfeld, the DC Circuit Court of Appeals offered this reasoning:

In enacting [The Freedom of Information Act,] Congress sought to lower the barriers facing the average person requesting information. Furthermore, successful FOIA litigants enhance the public interest by bringing the government into compliance with the law. As agents of the national policy of public disclosure it is equitable that they be awarded for their service. Under current federal attorney fee statutes when the social service rendered by the prevailing party is substantial, the courts have been willing to dispense with formal and rigid attorney and client requirements. … A successful FOIA litigant is entitled to similar consideration.

The question how I might value the time spent on this project doesn’t really come down to dollars and cents anyway. There’s another register of value in the language the court uses in Cuneo regarding “the public interest” and in the language about “good government” Bill Moyers uses in his draft of LBJ’s FOIA signing statement. These texts help hitch my efforts to a serious purpose, and I reach for them with that in mind.

I hope that doesn’t sound self-aggrandizing. This three-year-long episode started with an idea for a film, an investigative documentary that would travel from New York to Minnesota, Washington DC, and Santiago, Chile. That was ambitious. Instead, I ended up on a paper chase and locked down in Brooklyn during a pandemic. That was frustrating and humbling.

Along with what I learned during that period about the putative subject of my investigation, I am reminded (once again!) that there’s always meaningful work to be done after things fall apart or plans go awry.  A small consolation for mice and men.

*Update, 19 May 2022: A stipulation of dismissal was filed this morning and the judge ordered the case dismissed.

What’s Behind Some of the Redactions in my Boundary Waters FOIA Case?

I guess this is what winning looks like.

The b(5) FOIA redactions I contested back in November have all been released in full. I’ve added these unredacted documents to the collection of records from my Boundary Waters FOIA case on documentcloud.

There are no earthshaking revelations here. The emails sent from David Bernhardt’s iPhone turn out to have been sent from his official email account; I suspected the agency might have redacted them to cover his use of a personal account. The redacted paragraphs in the leasing renewal documents from 1987-2005 concern Forest Service consent (or “no objection”) to the lease renewals, with some stipulations about an unresolved reclamation issue. These were public records of past decisions that were treated as if they held closely-guarded secrets.

Then there is the unredacted version of the Twin Metals Talking Points put together by Gary Lawkowski, Counselor to Solicitor Daniel Jorjani and fellow Koch network alumnus. These Talking Points were to accompany the Jorjani M-Opinion, the legal memo that determined Chilean mining giant Antofagasta plc had a non-discretionary right to renewal of its leases near the Boundary Waters. I talked a little about this redaction in a 2020 FOIA webinar. If there is a showpiece among these unredacted documents, this is it:

It’s worth asking why any of this — the letters, the email address, the Talking Points — was redacted in the first place. In previous posts I characterized these assertions of privilege as heavy handed. Interior misused, or abused, Exemption 5 redactions. Some look like a hamfisted effort to protect political appointees, like the full redaction of Lawkowksi’s Talking Points.

Why were these redacted? The Talking Points position the Twin Metals project as a source of critical minerals, criticize the Obama administration, and argue that the Jorjani reversal is “a victory for the rule of law by affirming that the government means what it says when it enters into contracts.” That last claim may be hyperbolical, but hyperbole hardly merits a coverup, and the Talking Points were written for public consumption. Trump himself would repeat the criticism of the Obama administration when he spoke in Duluth. Arguments about regulatory certainty are common enough and would have gotten a friendly reception in the business press. And as we saw just last week, when President Biden issued an executive order and the Senate held a hearing on critical minerals, there is plenty of bipartisan support for onshoring critical minerals production.

So why the sensitivity around Lawkowski’s arguments? Maybe this is just a case of a FOIA reviewer applying Exemption 5 indiscriminately. But why not roll out these talking points, and try to build public consensus around them? I can only guess that it was some mixture of incompetence, or an inability to coordinate a coherent critical minerals strategy (remember infrastructure week?), and arrogance: a sense that they didn’t owe the public explanations.

There is a world in which this could have been a political win, had the administration taken the time to build public support and rally Congressional allies around mining for the energy transition, or a new energy mix, and — this is the kicker — had it found a more legitimate route forward for the lease renewals. Instead, at every turn, they schemed behind closed doors, and they failed.

A Final Batch of Boundary Waters FOIA Records

Last week, the Biden administration determined that Antofagasta plc’s mineral leases near the Boundary Waters had been improperly renewed in 2019.

Principal Deputy Solicitor of the Interior Ann Marie Bledsoe Downs found that changes made to the Bureau of Land Management’s standard lease form were irregular and amounted to giving the Chilean firm “special treatment.” She also withdrew the “flawed” Jorjani M-Opinion, M-37049; its specious claim that Antofagasta had a “non-discretionary right” to renewal of its leases, she wrote, “spurred the improper renewal decisions.” The Jorjani opinion led the agencies into a procedural and legal morass.

“As a consequence of the Jorjani M-Opinion,” Bledsoe Downs writes, the Department of the Interior ignored or sidestepped the Forest Service’s statutory consent authority. Jorjani all but eliminated this authority and swept aside the fact that the Forest Service did not consent to a renewal of the leases back in December of 2016. That determination was invalid, he claimed, because the mining company had a non-discretionary right to renewal. Not just the Forest Service, but “the United States” itself had no say. The leases had to be renewed; the Forest Service could make some stipulations, nothing more.

A small batch of Boundary Waters documents that arrived last night — the 19th supplemental release of records compelled by my FOIA lawsuit against the Department of the Interior — does not shed much new light on how these decisions were taken. This is probably the last batch of records, with the exception, maybe, of those records whose redaction I am contesting.

These records are almost entirely redacted. Nothing but black. I added them to the collection on documentcloud anyway, here.

The new records include three (totally redacted) drafts of a BLM News Release announcing the reinstatement in 2018 of Antofagasta’s mineral leases.

They also include two fully redacted memos from Mitch Leverette, Acting Eastern States Director at the Bureau of Land Management, to Tony Tooke, Chief of the US Forest Service. Even the dates are redacted on these! But we know that they must have been written between September 2017 and March 2018, during Tooke’s brief term as Chief.

The dates, but not much more than the dates, are not redacted on two DOJ communications from Lisa Russell, Chief of the Natural Resources Section of the Environment and Natural Resources Division. Russell’s July 10, 2018 memo is addressed to Karen Hawbecker in the Office of the Solicitor at the Department of the Interior; this is followed by a 14 page draft litigation report on the Voyageur v. United States and Friends of the Boundary Waters v. BLM cases. Those cases had just been filed. Another report, from Russell at DOJ to Jeffrey Prieto, General Counsel at USDA, dated January 18, 2017, deals with Franconia Minerals v. United States, the lawsuit brought by the mining company in September, 2016, claiming a right to renewal of the mineral leases.

Though their contents have been completely obliterated, these records still tell us a little something. Both Leverette at BLM and Russell at DOJ are consulting with the Forest Service; the memos may simply bring the Forest Service into the loop of the the legal work being done at these agencies; they might well address the critical issue of its statutory authority; and in Leverette’s case, at least, the memo might reiterate the Jorjani argument that the USFS 2016 non-consent determination was invalid. The redactions make it impossible to say for certain.

When it comes to the three drafts of the BLM News Release announcing the reinstatement of Antofagasta’s leases, we have very little to work with. The news release comes from Leverette’s Eastern States division. The headline in all three cases reads: “Bureau of Land Management reinstates Minnesota mineral leases. Consideration of application for renewal also re-started.” All three drafts are marked “for immediate release.” While one of the drafts is dated May xx, 2018, two of the drafts are dated “February xx, 2018.”

The official date of the reinstatement was May 2, 2018, but we know from records I’ve previously obtained that the February draft of the news release caused a flurry of activity at the Department of Interior. For example:

The language requested by Leverette might well have been some legal justification of the reinstatement along the lines prescribed by Daniel Jorjani: Antofagasta’s leases could be reinstated because, due to a legal error, the Forest Service’s non-consent determination was invalid. Consider this paragraph from Leverette’s May 2, 2018 official Reinstatement Decision memo:

Because the BLM’s prior request for Forest Service consent was based on the legal error that the United States had discretion to decide whether to renew the leases, we informed the Forest Service that its December 2016 non-consent determination was not legally operative. The Forest Service has not objected to that conclusion.

This just leads me back to the question I asked on Twitter. Why didn’t the Forest Service object? Why didn’t it stand by its earlier conclusion? Why didn’t it make an effort to protect the integrity of the scientific study then underway? Or was there an objection that took from February to May to settle? Was that the subject of the two memos from Leverette to Tony Tooke? Did Tooke’s resignation in March 2018 help resolve the matter?

Of course, there are other explanations for the February-May delay. The federal bureaucracy is a slow-moving beast. Tooke was under siege in the last months of his career at the Forest Service and in no position to dictate terms. And, as Bledsoe Downs points out in a footnote to her legal memo, the decision to reinstate the leases was “concurred in by Joseph Balash, Dep’t of the Interior Assistant Sec’y for Land and Minerals Mgmt.” It may have taken from February to May of 2018 to obtain that concurrence.

What we do know for certain is that on May 2, 2018, on the very day the Bureau of Land Management reinstated these mineral leases, the CEO of Antofagasta plc met with Secretary of Agriculture Sonny Perdue. The pressure only mounted from that point on. Though Jorjani had asserted back in December of 2017 that the US Forest Service had no power to say whether the Chilean mining company’s leases should be renewed, the mining company, the agencies, the White House, and several members of Congress dedicated significant resources over the next year to making sure of that and getting Sonny Perdue to cave to their demands.

You can find all the Boundary Waters records I’ve received to date here.

Read more about the Boundary Waters reversal here.

The Latest Records in my Boundary Waters FOIA Case

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

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

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

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

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

The new records are here.

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

Read more about the Boundary Waters reversal here.

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

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

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

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

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

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

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

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

Read more about the Boundary Waters reversal here

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more about the Boundary Waters reversal here.

A BLM Map of Critical Minerals Near the Boundary Waters

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

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

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

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

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

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

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

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

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.

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

Read more about the Boundary Waters reversal here.