Tag Archives: Freedom of Information Act

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

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

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

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

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

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

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

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

AprilXXSol

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

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

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

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

Read other posts about the Boundary Waters reversal here.

“America is Not a Company”: Lowenthal Questions Nedd on the Boundary Waters

Nedd7Feb2017Email

“…documents that have already been released”: the February 2017 email from Michael Nedd that Representative Lowenthal used for today’s line of questioning.

One of the documents I obtained from the Department of Interior through a Freedom of Information Act Request came up for discussion at this morning’s Energy and Mineral Resources Subcommittee Hearing.

Representative Alan Lowenthal of California kicked off the question and answer period by asking Michael Nedd of the Bureau of Land Management when he first discussed the issues of the Twin Metals mineral leases in Superior National Forest with the incoming administration. Nedd was evasive (as he was throughout the entire hearing, prompting Representative Jared Huffman to remind him, at one point, that he is “not a potted plant”).

A second question from Lowenthal: “do you recall who from the incoming Trump administration first discussed the issue with you?” got an equally vague reply: Nedd said he did not have “a specific recollection.” So Lowenthal offered a reminder:

Well from documents that have already been released, we know that in early February of 2017, you sent out a briefing memo on this topic, which was entitled “Withdrawal Options.”

As the timeline shows, this email is — so far — the first time the Twin Metals matter is raised at Interior after the new administration takes office. It indicates that Nedd was following up on a discussion he had with staff either that day or before that day; and it raises the question why this matter appears to have been a Trump administration priority. Nedd wanted an updated briefing paper, pronto, by close of business on Thursday, February 9th. Why was this matter top of mind for him? Why the quick turnaround? Why the urgency?

Blumenthal also asked for a copy of the original briefing paper Nedd attached, and Nedd was agreeable but non-committal, saying he would take Blumenthal’s request back to the Department of the Interior. We already know that just a few months later, by late April of 2017, this briefing paper would have undergone enough revision so that the Karen Hawbecker could refer to “options we’ve identified for reversing action on the Twin Metals decision.” So that tells us what we need to know about the direction Nedd gave the group for “working together.” They were to reverse what the previous administration had done.

At whose direction? And why? We still don’t have satisfactory answers to these questions.

Here is Lowenthal’s first round of questioning on the Boundary Waters reversal, which includes his exchange with Nedd over his Briefing Paper. (The video here is cued to the start of his question.)

Later in the hearing, at around 1:26, Lowenthal questions Chris French of the US Forest Service on Secretary Perdue’s cancellation of the environmental assessment in Superior National Forest and about the false assurances Perdue gave Representative McCollum, and asks that French provide relevant documents. After that there is some back and forth with Representative Gosar, who complains of executive overreach by the Obama administration, claims the people of Minnesota want these mineral leases renewed, ends by arguing that polling questions can be misleading, and if we had polled people properly back in 1919, we wouldn’t have a Grand Canyon National Park today. I’m not exactly sure how that last argument is supposed to win the day at a hearing on public lands.

For his part, Lowenthal has a strong sense of what’s at stake throughout this hearing. Just consider this excerpt from his opening statement on the Trump doctrine of “energy dominance” that now informs policy at the Department of Interior:

America is not a company. It may seem like President Trump is trying to treat us like one, like many of his other companies, and let us run it into the ground. But America is a country, not a company, and America’s lands are not excess inventory that need to be disposed of. Our natural resources are not reserves that need to be booked, so our stock prices stay high and our investors stay happy. Our public lands are an investment that we’re holding for our grandchildren, and their grandchildren, and generations beyond. They’re an investment that pays off, by allowing them to know, our grandchildren, great grandchildren, what vast stretches of untainted wilderness look like. That lets them see with their own eyes polar bears, sage grouse, mule deer, and caribou, running wild and free. That lets them learn about ancient native cultures without having to go to a museum, and lets some cultures continue to observe and respect the same traditions that their ancestors have. These are all priceless. They’re irreplaceable. And these are all infinitely more important than whatever extra few dollars can line an oil baron’s pocket over the next few years. I just hope our land management agencies still understand that.

A Standing Offer to Steve Kornacki

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

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

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

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

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

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

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

Read other posts about the Boundary Waters Reversal here.

A New Set of Boundary Waters Documents

In response to a Freedom of Information Act request I made back in January of 2018, the Department of Interior has released over 5,000 pages related to the Trump administration’s rollback of federal protections for the Boundary Waters. These and other documents have allowed me to put together this timeline, which tells a pretty clear story. From the very first days of the new administration, Interior Department officials and mining company lobbyists worked closely together, and with blatant disregard for science and the environment, toward a predetermined outcome that served the business interests of a foreign mining company, and not the public interest.

The latest release arrived on Friday afternoon. It’s a collection of email correspondence and attachments from Briana Collier, an attorney in the Division of Mineral Resources. These documents are now published here.

An email from Collier included in an earlier release had tipped me off to a previously undisclosed meeting at the US embassy between the CEO of Antofagasta PLC and the Carol Z. Perez, the US ambassador to Chile. Any hopes that this latest release would shed more light on that meeting, or make other equally significant disclosures, were quickly dashed when I opened the PDF. About 400 of the 650 pages included here are redacted, many of them entirely, on the basis of attorney client privilege or deliberative process. Almost all date from December of 2017, when the Office of the Solicitor at Interior was finalizing the Jorjani memo — the memo that cleared the way for Antofagasta PLC to renew its mineral leases in Superior National Forest.

In these documents, we mainly see officials crossing ts and dotting is in the memo before its release. There are some emails exchanged at the last minute regarding the first footnote in the memo, on the Weeks Act, which establishes the Secretary of Interior’s statutory authority for the disposition of minerals. The footnotes for an important section of the memo (pp. 11-13), arguing that BLM previously renewed the leases on 1966 terms, are the subject of another last minute exchange. One footnote in particular, which is number 65 in the draft under discussion (but not necessarily in the final version, given all the last minute changes) “raises issues we do not want to address.” What issues are those?

Twin Metals continues to work closely with Interior. When Bob McFarlin, Government Affairs Advisor for Twin Metals, comes to DC with Anne Williamson, Twin Metals Vice President of Environment and Sustainability. for a “quick meeting” on December 15th with Tony Tooke, the new US Forest Service Chief, he writes to see whether he might arrange a “short visit” while he’s in town with Kathleen Benedetto. Benedetto and Williamson had met — when exactly, we don’t know — during the summer of 2017. McFarlin asks that Mitch Leverette, Eastern States Acting Director, Bureau of Land Management, join them.

There is ongoing concern over coordination with the Forest Service, from the drafting of a letter announcing that BLM will no longer consider the Forest Service’s non-consent to lease renewal valid, to the very minute the memo is released. Correspondence with the Forest Service’s Kathleen Atkinson is almost entirely redacted. And Interior’s efforts to coordinate with Forest Service only add to the confusion around plans for a news release. At what appears to be the direction of David Bernhardt’s office, work was done on a “relatively short” Minnesota-only press release. Even that is eventually cancelled, and it’s decided that Interior will deal with this only “if asked.”

Before that, however, and at the request of Interior Communications, Gary Lawkowski, Counselor to the Solicitor of the Interior and another Koch veteran, forwards a “one-pager of talking points on the Twin Metals opinion” to Daniel Jorjani and Jack Haugrud for review. He has put them together “given [or with an eye to] today’s focus on critical minerals.” (Recall that “strategic minerals” were a central theme of Ivan Arriagada’s April 17, 2017 letter to Secretary Zinke as well.) In a second email circulating the talking points to Deputy Director of Communications Russell Newell, Lawkowski elaborates: “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….Cobalt and platinum are on the list of 23 critical minerals released by USGS earlier this week.” Eureka.

As I continue to comb through this latest release, I will add more details to the Twin Metals Timeline. If something here catches your eye, let me know in the comments below, or send me an email (my Twitter handle is also my gmail address). And if you have documents that can add color or contrast or depth to the timeline, please get in touch.

You can read all my posts about the Boundary Waters reversal here.

Another Look at the Twin Metals Timeline

Rees20170502AntofagastaIn response to a FOIA request I made back in April, the Department of the Interior has released Gareth Rees’ 2017 work calendar. Rees has served as Executive Assistant to the Deputy Secretary of the Department of the Interior since George W. Bush’s first term. He did not arrive with the so-called “beachhead” teams brought in by the current administration with the express mission of sabotaging and dismantling the government agencies entrusted to their care. Still, his calendar (which I’ve put up here, on DocumentCloud) adds more pieces to the puzzle.

Rees’ calendar drew my attention to a couple of meetings I hadn’t noticed before and which are now represented on the timeline. There is a June 15, 2017 meeting at Interior with a group called Jobs for Minnesotans — a front for the building trades that is currently lobbying for both the Twin Metals project near the Boundary waters and the Polymet project to the south, near Hoyt Lakes. Jobs for Minnesotans is a 501c4 “social welfare” or dark money organization of the kind I’ve written about in connection with mining projects in Michigan and Wisconsin. As a 2016 Pro Publica report suggests, these organizations are designed for those who prefer backroom deals to sunlight. 501c4s like Jobs for Minnesotans are used to channel money from private interests into public process, and coordinate localized efforts to remove environmental protections and undo regulation through regional and national networks.

A May 2, 2017 meeting with Antofagasta plc has also been added to the timeline. This meeting brought together representatives of the Chilean conglomerate with a large group of officials at the Department of the Interior just one month after Interior appears to have taken up the matter. Apparently meeting with Antofagasta was a priority. The company’s subsidiaries Twin Metals Minnesota and Franconia Minerals had sued the Department of Interior in February of 2017. The complaint makes the mining companies’ position abundantly clear. And yet administration officials seem to have been anxious to sit down with the Chilean parent company and discuss its leases. Why? (It’s not likely that the same courtesy will be extended to the ten Minnesota plaintiffs now complaining that in reinstating Antofagasta’s leases the Department of Interior exceeded its lawful authority and acted in an arbitrary and capricious way.)

The first meeting with Antofagasta, in early May, appears to have set the agenda; the second meeting with Antofagasta, on July 25th, looks as if it were called to reach an agreement. The July meeting with Antofagasta includes all Interior officials present at the May 2nd meeting as well as some important decision makers: Deputy Solicitor Daniel Jorjani, Acting Director of the Bureau of Land Management Michael Nedd, and Edward Passarelli, Deputy Chief at the Natural Resources Section of the Department of Justice.

It is difficult to avoid the conclusion that the Department of Interior worked steadily and closely behind closed doors with lobbyists and mining executives to renew Antofagasta’s mineral leases in Superior National Forest. This would conform to the general pattern at Interior under Zinke’s leadership. “A deeply problematic culture of secrecy…has taken root in the Department of the Interior,” the organization Earthjustice charges, “keeping the American public in the dark about major decisions, important records, and meetings with industry that affect the lands and resources the agency holds in trust for the American people.”

In this case, the mining company ran a full court press; the public was kept almost entirely out of the process. The deed appears to have been done well before the end of summer 2017. The legal review that would result in the Jorjani Memo of December 22nd appears to have been nothing more than an exercise in a foregone conclusion — a sham.