Tag Archives: Galdieri v. Department of Interior

Another Political Appointee’s Calendar Among New Boundary Waters Documents

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

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

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

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

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

Read more about the Boundary Waters reversal here

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

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

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

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

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

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

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

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

The Information Memorandum is not included in this release; perhaps those are the 5 pages withheld in full. But sometime between June 15 and June 20, someone in the White House must have worked their way through it and developed talking points for the announcement Trump made on that trip: “we will soon be taking the first steps to rescind the federal withdrawal in Superior National Forest and restore mineral exploration for our amazing people and miners and workers and for the people of Minnesota, one of the great natural reserves of the world.”

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

Documents Delayed and Permits Accelerated: A Critical Minerals Play?

Is the Trump administration preparing to invoke emergency powers in order to accelerate permitting for Antofagasta’s sulfide mining project near the Boundary Waters? Listen to what Pete Stauber and Mike Pence were saying in Hibbing the other day.

It has been over two months — 78 days, in fact — since the Department of Interior has released any documents in response to my FOIA lawsuit, despite a February 7, 2020 court order requiring regular monthly releases of 750 pages. While I consider options to get the process back on track, I am also trying to figure out what the delay might mean.

An October 6, 2020 Joint Status Report set out some reasons for the delay.

It’s hard to know what to make of these representations. Let’s start with the September releases, since the reviews mentioned in the connection with the October releases sound a little more standard (and are for that reason even more opaque).

In a letter dated October 31, 2019, I was told by Department of Interior Counsel that all requests for agency records related to Secretary Zinke “must” go through the Secretary’s office, so the Secretary’s records were not, and would not ever be, included in searches the Office of the Solicitor. How, then, does the Office of the Secretary claim “equities” in documents from the Office of the Solicitor? It looks as if the firewall they tried to erect between the two offices didn’t hold up or was nothing more than a temporary blind. The back and forth we had over Tax Analysts v. Department of Justice, a landmark case regarding “custody” and “control” of responsive records, probably needs revisiting.

That leaves the six pages being sent to the White House for “consultation.” What’s in those six pages, and who is undertaking the review? One guess is that they concern communications between Daniel Jorjani and Michael Catanzaro, who until April 2018 was Special Assistant to the President for Domestic Energy and Environmental Policy. Catanzaro met regularly with then-Deputy Secretary of the Interior David Bernhardt, and he appears to have acted as a sort of White House liaison on the Twin Metals matter.

A front page story in the June 26, 2019 New York Times has Catanzaro meeting with Antofagasta executives as early as May of 2017, and the timeline shows him meeting with Daniel Jorjani about the “Minnesota project” in August of that same year. Stephen Vaden, a political appointee at USDA, also attended that meeting and Vaden appears to have stayed in the Minnesota loop to keep Secretary of Agriculture Sonny Perdue apprised of legal developments. (For the next year or so, Perdue would bide his time, lie and equivocate, before abruptly canceling a planned two-year scientific study to determine whether federal lands bordering the Boundary Waters should be withdrawn from mineral development.)

Catanzaro has returned to lobbying for oil, gas, and mining clients, and it seems a little far-fetched to think the hold up might be due to White House sensitivities around Vaden, whose nomination to the United States Court of International Trade is now awaiting a vote in the Senate. Why, then, the consultation at the White House?

Consider that this delay might not less about protecting persons, or political appointees, and more about protecting a position that the White House, the Solicitor’s Office, the Secretary of the Interior, USDA and Antofagasta Plc have jointly developed — seemingly in tandem with their efforts to renew Antofagasta’s leases in northern Minnesota. The position is simply that Twin Metals will be a source of critical minerals.

Only two days after Daniel Jorjani met with Catanzaro and Vaden in August of 2017, the Department of Interior hosted the CEO Critical Minerals Roundtable; and though Antofagasta was not among the mining companies represented on that occasion, the company changed the description of its Twin Metals project to include cobalt — on the list of “critical minerals” — for its 2017 Annual Report. (The 2015 and 2016 Annual Reports make no mention of cobalt.) Immediately after Interior published its list of critical minerals, Gary Lawkowski, who is now Deputy Assistant Secretary for Land and Minerals Management and was then Daniel Jorjani’s Deputy, recommended a public relations strategy that positioned Twin Metals as a critical minerals play. “One thing you all may want to note — the Forest Service has indicated that they believe there are potentially cobalt and platinum deposits underneath Superior National Forest.” And, as I mentioned in the FOIA webinar I gave in July, Interior has now started to redact Lawkowski’s use of the phrase “critical minerals” in Twin Metals document releases, which indicates some new sensitivity on the point.

This might help explain the legal reviews holding up the October production as well. But the real issue here doesn’t have to do with the documents I’m expecting. It has to do with how the White House, the Department of Interior, and other agencies are developing the critical minerals position on Twin Metals. We can get a sense of where things seem to be heading from the speech Representative Pete Stauber gave to warm up the rally crowd in Hibbing, Minnesota for Vice President Mike Pence just the other day:

Plaid jacket jingoism. But note especially the way Stauber deliberately conflates “copper-nickel mining” with “strategic metals mining,” and organizes the Twin Metals project under emergency powers the president arrogated to himself in the September 30 Executive Order on critical minerals. Pence softened things a bit when he elaborated on the theme, but he told the crowd that the Executive Order “cuts burdensome regulation and eliminates permitting delays.”

The argument Stauber and Pence were starting to make in Hibbing appears to be that the White House can invoke emergency powers in order to accelerate or even sidestep environmental review on behalf of Antofagasta, because Twin Metals is a source of critical minerals and therefore covered by Executive Order.

The Order asks the Secretary of Energy to identify “all such regulations that may warrant revision or reconsideration in order to expand and protect the domestic supply chain for minerals” and to propose changes within 90 days. That puts us at the end of December, and, if current polls hold, right near the end of Trump’s presidency. In the meantime, the order also authorizes the Secretary of the Interior and other agency heads to “use all available authorities to accelerate the issuance of permits and the completion of projects in connection with expanding and protecting the domestic supply chain for minerals.” If Trump loses Tuesday’s election, they’ll have just a couple of months to get this done.

Read more about the Boundary Waters reversal here.

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.