Tag Archives: Freedom of Information Act

How did the DFC Handle Human Rights Concerns about Alto Maipo? A FOIA Request

An aerial view of the Alto Maipo Hydroelectric Project

Before the Trump years, few Americans had heard of Chilean mining giant Antofagasta plc or the powerful Luksic family who control it. Today, Antofagasta’s controversial plan to mine copper and nickel on the edge of the Boundary Waters and the scandals associated with it are not exactly common knowledge, but at least better known. Congressional hearings, activism, and investigative reporting helped bring the previous administration’s reckless, clumsy, and corrupt handling of Antofagasta’s permits into focus. (Maybe some of the records I obtained through the Freedom of Information Act helped, too.) But despite steps taken by the Biden administration to set right some of what the Trump administration did wrong in this case, the Antofagasta file is far from closed. The lobbying for reversals and permits continues apace* and important aspects of the story are still obscure.

A FOIA request I made on June 3, 2021 promises to shed some light on one aspect of the story, maybe nothing more than a minor detail, involving the Development Finance Corporation. The first set of records arrived last Friday. Nothing much so far, just some innocuous looking office email correspondence, but I’ve posted the records on documentcloud and will continue to put them up as they arrive. Here, I just want to set these records in context.

The story takes us back to 2013, the first year of Obama’s second term. That’s when Twin Metals Minnesota filed its mineral lease renewal application at the center of the current Boundary Waters controversy, and it’s also when the Overseas Private Investment Corporation, or OPIC, made a $250 million investment in the Alto Maipo Hydroelectric Project in Chile. At the time, the Luksic Group, owners of Antofagasta plc, held a 40 percent share in the mega-project.

This looks like nothing more than a coincidence. Antofagasta would not formally acquire Twin Metals until 2015; and the company would decide to get out of Alto Maipo in 2016 (though it took until 2020 to divest fully from the project). At most, the OPIC deal might have helped persuade Antofagasta that the Obama administration would look favorably on its North American plans.

In 2018, the Development Finance Corporation, or DFC, took over the OPIC portfolio of projects, investments that aim to alleviate poverty, combat corruption, and promote sustainable as well as low-carbon and no-carbon development. DFC also shares OPIC’s stated commitment to “respect the environment, human rights, and workers rights.” Its Environmental and Social Policy and Procedures document, produced in July 2020, shows remarkably little sign of the crude transactionalism that dominated foreign affairs, including foreign aid and investment, during the Trump administration.

Just one month later, on August 18, 2020, DFC’s statements of principle would be put to the test. The DFC was informed of serious human rights challenges at Alto Maipo Hydroelectric Project. Five UN Special Rapporteurs on Human Rights sent a five page letter to Adam Boehler, Jared Kushner’s friend and college roommate and the Trump-appointed CEO of the Development Finance Corporation, warning of possible human rights violations at Alto Maipo.

The letter is included as an Annex in written comments for the June 9, 2021 meeting of the DFC.

The UN Rapporteurs express concern that the Alto Maipo project hoards water for mining interests, hurts local communities, and is proceeding without adequate concern for human rights and the environment. The letter says the mega-project would reduce “the availability of water for human consumption and domestic use, in contexts already characterized by climate change and water scarcity.” The shortages could also affect subsistence agriculture, “resulting in violations of the right to food and other rights related to the right to an adequate standard of living.” The project appears to be proceeding without participation of the affected communities and with significant damage to biodiversity and the environment, and “multiple human rights violations” are likely to result.

Unable to find Boehler’s response to these claims, I filed a Freedom of Information Act request for “all DFC communications regarding the 18 August 2020 letter from UN Special Rapporteurs to DFC CEO Adam Boehler regarding the Alto Maipo Hydroelectric Project in Chile, including any and all communications to or from Mr. Boehler about the topic.” The few records included in the first FOIA production do not include anything from Boehler; they are a small set of emails to and from Catherine Andrade, DFC Corporate Secretary, in preparation for the June 9, 2021 DFC Board Public Hearing.

Alto Maipo was on the agenda for the day, as it was again at this year’s meeting. Groups that have monitored human rights and environmental issues around Alto Maipo were slated to participate: Juan Pablo Orrego, president of the organization Ecosistemas, and Carla Garcia Zendejas from the Center for International Environmental Law were among the presenters. Observers included representatives of BNP Paribas, Oxfam, US Small Business Administration, Accountability Council, and the Wildlife Conservation Society.

All indications are that this was a meeting Boehler’s DFC wasn’t especially eager to have. In April 2020, the DFC declared itself exempt from the Sunshine Act, which requires federal agencies to open meetings for public observation.

In response, the Center for Biological Diversity and other plaintiffs sued:

They say the rule change means that [DFC] no longer faces any obligation to provide communities with information that could later impact their environments and livelihoods.

The Center for International Environmental Law, a co-plaintiff on the suit, spent years working with communities affected by the Alto Maipo Hydroelectric Project, which Chilean activists argue would threaten the drinking supply of more than 6 million people in the Santiago Metropolitan Region. The OPIC granted $250 million in funding to the project in 2013.

“For many years, we worked to hold OPIC…accountable,” Carla Garcia Zendejas, the organization’s director of people, land and resources, said in an email, “ensuring that communities affected by the institution were able to secure access to information regarding the institution’s decision-making processes and to utilize the accountability mechanism when adversely affected….

Garcia Zendejas emphasized that the DFC’s new exemption “had very practical implications for communities on the ground who are seeking information about the projects that could upend their lives.”

Bill Snape, Senior Counsel of the Center for Biological Diversity, added that he could see little reason for the agency to try to exempt itself from the Sunshine Act, “unless you have things to hide.” The plaintiffs did not prevail, however, and in February of this year, Judge Christopher Cooper granted DFC’s motion to dismiss, writing that the Sunshine Act does not apply to the DFC. For now, at least, FOIA does.

* I looked at Q2 2022 lobbying for the Twin Metals project here:

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.

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.

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).

A New OpEd and an Upcoming Webinar on FOIA and the Fight for the Boundary Waters

In today’s MinnPost, Chris Knopf and I discuss one finding of the documents I obtained through FOIA: Chilean mining company Antofagasta set the terms — the calendar and the scope — of environmental review for the renewal of its mineral leases near the Boundary Waters. The OpEd is here.

On Wednesday, I’ll be presenting some of my research (and talking about the Freedom of Information Act and good government) in a free online webinar hosted by Friends of the Boundary Waters. You can register here.

Update 9 July 2020: here is a recording of the webinar.

Update 18 March 2021. Zoom did not record the desktop during my presentation back in July, so for Sunshine Week I restored the slides. Watch the full presentation with slides here.

Heavy-Handed Assertions of Privilege

 

With Aaron’s encouragement, I wrote on June 23 and again yesterday to Lance Purvis, Office of the Solicitor FOIA Officer at the Department of the Interior, asking about the redaction of what are essentially public relations exercises: Talking Points and a “brief blurb” drafted by Gary Lawkowski in December of 2017 to explain the reversal of the Obama administration’s legal opinion on Antofagasta’s mineral leases near the Boundary Waters.

The redacted documents, which I posted on Twitter and included in a previous post, are marked with Exemption (b) (5). This covers attorney/client, attorney work product, or deliberative process privilege; and it is intended to protect documents that are pre-decisional, or unfinalized, where someone at an agency seeks legal advice for formulating policy, or where agency officials deliberate about a policy or decision.

Though Gary Lawkowski is an attorney and was at that time working for Solicitor Daniel Jorjani — they are fellow travelers from the Koch Brothers-backed Freedom Partners — these public-facing communications do not constitute legal advice for formulating policy. Can they be withheld as internal agency deliberations? Only if they are pre-decisional and their release would confuse the public about steps the agency decided not to take; and that would be a real stretch, as these documents explain a decision already taken, namely, the new legal opinion. So how can communications of this kind, talking points and blurbs intended for public consumption, be covered by Exemption 5?

The most relevant case in the Justice Department’s own archive of court decisions on Exemption 5 appears to be Fox News Network LLC v. Dept of Treasury. This was a 2012 case that dealt directly with the assertion of Exemption 5 to withhold public relations documents and communiques. The outcome was mixed: the court granted and denied motions for summary judgment in part for both the plaintiff and the defendant.

The documents at issue relate to press releases, inquiries from the press, and related e-mails, which were withheld because “they reflect ‘how best to present Treasury’s position.’  In an earlier decision [a 2010 decision on Fox v. Treasury which Judge Frank Maas refers to as Fox I], the court explained “that communication concerning how to present agency policies to the press or public, although deliberative, typically do not qualify as substantive policy decisions protected by the deliberative process privilege.” The court states: “Drafts of public relations documents therefore may properly be withheld if their release would reveal the status of internal agency deliberations or substantive policy matters.” Applying these principles, the court finds that disclosure of drafts of certain press releases and related e-mails would “reveal the evolution of Treasury’s thinking regarding the proposed restructuring of the AIG investments.” However, where it cannot be “shown that the materials relate to anything other than past events…[and] there is no indication that the ‘public response’ about which the author speaks involves policy action, rather than mere messaging[,]…documents are not entitled to protection under the deliberative process privilege.” [emphasis mine]

 A full week has gone by without reply or even acknowledgement. These documents are being released as part of an agreement reached in my pro se FOIA lawsuit against the Trump administration, so the issue will need to be addressed. And while these heavy-handed assertions of privilege may seem small and not worth arguing over — what are we going to learn from those talking points that we don’t already know? — they are part of a larger pattern of abuse.

 

A Small Set of Jorjani Boundary Waters Documents

A new set of documents released yesterday in response to my Freedom of Information Act lawsuit offers a little more insight into the role high-level political appointees at the Department of Interior played in the Boundary Waters reversal.

This latest release is the smallest I’ve received to date: 197 pages, whittled down by reviewers from 1,000 potentially responsive pages. As always, the documents are pretty thoroughly redacted, with most of the redactions made under Exemption 5, which covers attorney-client, attorney-work product, and deliberative process privilege.

Most of the documents appear to be email correspondence to and from Daniel Jorjani, who was then Principal Deputy Solicitor at the Department of Interior. I’ve written about Jorjani before (see, e.g., 1, 2, 3, 4). Some of these documents have already been made public. But even these duplicates can be revealing. For example, an exchange between Daniel Jorjani and David Bernhardt mocking Governor Dayton includes the Principal Deputy Solicitor’s approving reply (“perfect”) to Bernhardt’s sneer, which I had not seen before:

perfectSalazar

Or consider this example, which I posted on Twitter yesterday:

Lawkowski thought it might be a good idea, for public relations purposes, to make it seem that Chilean mining giant Antofagasta’s copper and nickel mining operation in Minnesota would deliver critical minerals: “the Forest Service has indicated that they believe there are potentially cobalt and platinum deposits underneath Superior National Forest,” he writes on December 20th, 2017, noting that cobalt and platinum were included on the new list of “critical minerals” published by the US Geological Survey earlier that same week.

He may have shared the same line of thinking with Downey Magallanes, another political appointee, at around the same time. “Are you working on twin metals [sic],” she writes, asking if Lawkowksi can “do a blurb for the weekly report much like you did for MBTA [the MIgratory Bird Treaty Act, subject of another controversial December 2017 Solicitor’s opinion]?”  Lawkowski is ready to help, and runs his (here, wholly redacted) effort by Haugrud and Jorjani:

lawkowskimagallanes

At the time, Magallanes was Deputy Chief of Staff for Policy at the Department of the Interior. (She now works in Government Affairs at BP.) As the timeline indicates, she had been in the Twin Metals loop since at least April of 2017. In December, as Deputy Solicitor Jorjani prepared to release a new legal opinion that would clear the way for the reinstatement and renewal of Antofagasta’s mineral leases near the Boundary Waters,  it would have been Downey’s job to integrate the legal opinion into a broader policy framework. Invoking the new list of critical minerals would have helped her do that.  Platinum and cobalt deposits in the Duluth Complex would provide a policy rationale — or at least a convenient pretext — for allowing Antofagasta to mine copper and nickel on the edge of the Boundary Waters. 

You can explore the new set of documents here, and all the Boundary Waters records I have received to date here

Read more about the Boundary Waters reversal here.

An April Set of Boundary Waters Documents, or, Mr. Altikes Comes to Washington

Back on February 7th, in a Joint Status Report filed with the US District Court of the District of Columbia, the Department of Interior agreed to conduct additional searches in response to my Freedom of Information Act request regarding the renewal of mineral leases near the Boundary Waters held by Chilean conglomerate Antofagasta, Plc. This was a tacit admission that the initial searches the Office of the Solicitor conducted (and which produced about 6,000 pages of records) were inadequate, as I complained to the court. Specifically, those first records searches appear to have deliberately excluded any search terms having to do with the Chilean side of this story. Now a new release of documents — just over 1,000 pages, and the first in what is supposed to be a series of monthly releases — helps us fill in the Chilean picture just a little more and add more detail to the timeline.

These documents (in five parts, 1, 2, 3, 4, 5) are now posted on documentcloud.org along with the other Boundary Waters documents I’ve obtained through FOIA.

The new records are mostly emails, all very thoroughly redacted, from the files of Karen Hawbecker, Acting Deputy Solicitor, Energy and Mineral Resources. They include some documents that came along as attachments — briefings, drafts of letters, and so on. As the timeline shows, Hawbecker was in the Twin Metals loop as early as February 7, 2017, just a little over two weeks after the inauguration, and, as these new records remind us, she stayed in the loop.

In fact, one of the more striking records included in this new release takes us well beyond the 2017 decision timeline I’ve been tracing (and beyond the scope of my initial records request). It’s a Building Admittance Request form dated May 8, 2018, that shows Hawbecker meeting with Daniel Altikes, Vice President of Antofagasta, Plc. Along with him is Kevin Baker, Vice President of Legal Affairs, Twin Metals Minnesota, and two lobbyists from WilmerHale.


This meeting comes less than a week after Mitchell Leverette of the Department of Interior notified Kevin Baker that he was reinstating the leases near the Boundary Waters, on May 2, 2018.

Up until now, we knew that Antofagasta had a couple of meetings with high level officials at the Department of Interior about their mineral leases in Minnesota. Now it appears that Altikes and the Chilean company had much easier and more frequent access to Trump administration officials than I ever realized. So, for example, we find Altikes on the calendar of then-Assistant Secretary of Land and Minerals Management Joseph Balash, meeting with Interior officials on October 3, 2018 along with Twin Metals CEO Kelly Osborne.

Altikes3Oct2018

This was just about a month after Secretary of Agriculture Sonny Perdue announced that USDA had cancelled a two-year scientific review of a proposed mineral withdrawal for the Rainy River Watershed, removing “a major obstacle to mineral leasing in Minnesota.” The topic of this October 2018 meeting with Altikes and Osborne was: “to share our hopeful schedule/milestones for the next 24 months.” Interior and Antofagasta are now working in synch.

A profile of Altikes in Vanguard magazine gives him all the credit:

…it was the challenge posed by American regulatory regimes that proved the most daunting. Five years after laying the legal groundwork for a massive mining venture, the project — totaling hundreds of millions of dollars of investment — got challenged by U.S. regulators.
For foreign-born lawyers like Altikes, such circumstances — navigating one of the world’s most confounding and complex regulatory structures — would’ve been reason enough to quit and cut the losses.
Owing to his extensive experience working with American firms, Altikes knew that his only recourse was to immerse himself in the head-spinning legal waters of Washington, D.C.
In time, he started interfacing directly with governmental representatives….

Another, earlier example also leads us to Sonny Perdue’s decision to cancel the two-year scientific study. On September 28, 2017, Altikes met with Vincent DeVito, who was then Counselor to the Secretary for Energy Policy. The April documents suggest how this meeting may have come about.

On June 15, 2017, Karen Hawbecker drafted a letter to Ian Duckworth, Chief Operating Officer of Twin Metals Minnesota, and circulated the draft internally for comment. It is a reply to a letter Duckworth sent on May 26, 2017, the contents of which we can infer from Hawbecker’s reply.* Duckworth had complained about the proposed mineral withdrawal of Superior National Forest and asked, or demanded, that the US Forest Service cancel its application for withdrawal, or that the Bureau of Land Management deny the Forest Service’s application. In her response, Hawbecker also acknowledges Duckworth’s request for a meeting with then-Secretary of the Interior Ryan Zinke and directs Duckworth to contact the administrative assistant for Vincent DeVito and schedule a meeting with him.

DeVito’s 2017 public calendars are not searchable, so they have to be scanned one day at a time. I have not yet come across a meeting with Duckworth on them, but the September 28 meeting with Altikes — the top lawyer for Duckworth’s Chilean boss — obviously followed from Duckworth’s complaint. (As if to prepare for the meeting with Altikes, DeVito also met with Twin Metals lobbyists from WilmerHale three days earlier, on September 25.)

What prompted Duckworth to complain about the proposed mineral withdrawal on May 26 is also clear and worth pointing out: the testimony of Secretary of Agriculture Sonny Perdue, just one day earlier, at a hearing on the US Forest Service Budget held by the House Committee on Appropriations.

At that hearing, Representative Betty McCollum asked Perdue along with US Forest Service chief Tom Tidwell whether the Forest Service would let the two-year federal scientific study of sulfide mining in Superior National Forest go forward. Secretary Perdue reassured Representative McCollum that he and Secretary Zinke had “already met about this” and he would “absolutely” allow the scientific study to proceed.

He did not, of course, and the Forest Service still refuses to release the findings of the incomplete study. They’ve issued a wholly redacted copy, and now they claim the study includes only “deliberative pre-decision materials” that are not suitable for public release and would only create confusion if they were released.

It remains unclear why Perdue went back on his word and abruptly cancelled the US Forest Service study in September of 2018. We can see that Hawbecker cc’d USDA on her June 2017 reply to Duckworth. Just months later, an executive from Antofagasta would have the high-level meeting Duckworth sought the day after the Secretary of Agriculture said he would listen to the scientists.

*CORRECTION 26 April 2020. In my latest review of the documents produced so far, I found a copy of the Duckworth letter, written the day after Sonny Perdue testified that he would allow the scientific study to go forward. The letter is addressed to both Ryan Zinke and Sonny Perdue. (Hawbecker’s reply mentions only Zinke. We don’t know if USDA replied, or if Hawbecker’s was the only reply.)

The letter accompanied a four-page Twin Metals legal memorandum.

Read more about the Boundary Waters reversal here.

What’s Being Hidden?

McCollum Fong

“One page after another. Nothing.”

This is what science looks like under the Trump administration. Just imagine what’s happening with the coronavirus outbreak.

Here is Representative Betty McCollum at a February 11th hearing holding up the USDA report on the nearly-completed two year Forest Service study of sulfide mining near the Boundary Waters. Every single page of the report except the cover was completely redacted under deliberative process privilege before it was released. That’s nearly two full years of scientific study, obliterated and kept from public view.

“That begins to beg a question,” McCollum says. “What’s being hidden?”

Update, 12 March 2020. Senator Martin Heinrich asked Secretary David Bernhardt about these redactions at a March 10th Committee on Energy and Natural Resources hearing.

“Having sat on the Intelligence Committee,” he noted, “I’ve never seen something so fully redacted in my life.”

Bernhardt was simpering and evasive.

Read more about the Boundary Waters reversal here.

New Boundary Waters Document Releases Coming

This week offered some reminders of how little we still know about the Trump administration’s decision to allow copper-sulfide mining near the Boundary Waters.

On Tuesday, Friends of the Boundary Waters filed suit in US District Court in Minneapolis to compel the Bureau of Land Management to comply with the Freedom of Information Act, and made the case that BLM appears to be trying to keep its actions “secret.” The very next day, Representative Alan Lowenthal took up the same theme at a hearing on HR 5598, the Boundary Waters Wilderness Protection and Pollution Prevention Act.

Everything the administration has done on this issue raises serious questions. Why was the environmental review cancelled? Why is there a solicitor’s memo that is so at odds with the historical record? Who applied pressure to reinstate the leases? Did it have anything to do with the fact that Ivanka Trump and Jared Kushner are renting a house from the head of the mining company that’s developing the project? This committee has requested documents from both the Forest Service and the Bureau of Land Management, in an effort to get to the bottom of this decision-making. But instead of sending us what we requested, we got pages and pages of nonsense, with just a few relevant documents mixed in. I also directly raised the issue at a hearing with both the Bureau of Land Management and the Forest Service last year, and my questions were met with obfuscation and a supposed lack of knowledge on certain details.

Obfuscation is a polite way to describe the behavior of Interior officials at this very hearing. Take, for example, what happened when Lowenthal asked Chris French, Deputy Chief of the National Forest System, why Secretary Perdue had cancelled the planned two-year scientific study in Superior National Forest, after publicly committing to see it through. It’s a full five minutes of French repeating the same bureaucratic non-answer, and then failing to answer when the question is put to him as a yes or no. The video is cued to the exchange.

Just today, in response to my own FOIA suit, the Department of Interior all but admitted that they had failed to conduct an adequate search of records. From the very start, it appears, the scope of the search was deliberately narrowed, in a very specific way, but to what end I cannot say. It turns out their initial search, which produced about 6,000 pages of records, and which they claimed was complete, used only a few of the terms from my original request. Notably, the original search excluded references to Antofagasta Plc, Andronico Luksic Craig, and the Luksic family, as if to keep the Chilean mining conglomerate, its billionaire owner, and the Chilean side of this story entirely out of view. From today’s Joint Status Resolution:

as of February 6, 2020, nearly 22,000 pages have been received using the more expansive set of search terms, with searches still to be run against one custodian (whose records need to be processed by the Interior’s Office of the Chief Information Officer). This page number is therefore subject to change as Defendant awaits the final custodian’s records. The page count will also change, and is expected to decrease significantly, after the FOIA office completes de-duplication within the new search results and cross-checks against records that have already been produced to Plaintiff. The parties have agreed to monthly releases of 750 pages beginning March 15, 2020.

A slow trickle, but I’m cautiously optimistic that these monthly installments will fill in some more details of a picture that remains sketchy. I plan to share them on documentcloud as they arrive.

Update, 7 April 2020: The first of these releases was delayed due to the coronavirus emergency. Interior’s FOIA office began teleworking on March 13th, just two days before the first production was due. According to the Joint Status Report filed today, “two, approximately 700-page productions” are now scheduled for release “before April 15, 2020.”

Read more about the Boundary Waters reversal here.