Tag Archives: public interest

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.

 

New Boundary Waters FOIA Complaint Filed Against US Department of Interior

Yesterday, I submitted my complaint against the United States Department of interior to the US District Court in the District of Columbia, asking the court to compel DOI to comply with the Freedom of Information Act and release documents I’ve requested about the Boundary Waters reversal.

As a pro se litigant, I had to petition the court for leave to use the Electronic Case Filing system, so for now I am in the slow lane, waiting for my paper filing to be assigned a case number. [Update, August 2, 2019: Galdieri v. US Department of the Interior has been assigned Case No: 1:19-cv-02253 and Judge James E. Boasberg has also granted my motion for pro se access to Electronic Case Filing.] In the meantime, I thought it would be helpful to post the complaint online.

There have been a number of reports lately about the efforts to hobble FOIA at the Department of Interior; and just this week, Gail Ennis, the Acting Inspector General at the Department of Interior, announced an investigation of the department’s FOIA Awareness Process.

Ennis is taking this step after several watchdog groups, including American Oversight and the Western Values Project, charged that the awareness review policy at Interior was instituted to protect Trump political appointees from public scrutiny. (EPA instituted a similar policy last month.)

In my complaint, I mention the expansion of that policy in February, 2019, to cover Ryan Zinke and other officials. It seems to have played into Interior’s abrupt cessation of all communications with me, and its apparent decision to withhold responsive documents.

After corresponding with me fairly regularly for almost a year about my FOIA request, providing two document releases, and promising “additional documents” as part of a “rolling response,” Interior went silent on me as soon as I put the documents I obtained online. Since February, when I first published those documents, they have failed to respond to multiple emails and phone calls requesting a status update on forthcoming releases. They even failed to respond to several emails asking whether I had, in fact, exhausted all administrative remedies. I guess their silence is the answer to my question.

I suspect I’ve been blacklisted, or, if that’s too strong a word, at least singled out. My argument here is not just post hoc propter hoc. About a month after I first put the Interior documents online, something else happened to deepen my suspicions.

On March 26th, the Solicitor at the Department of the Interior began to follow me on Twitter.

Jorjani1

This account — which was created in February of 2017, never tweeted, and has since been taken down — appears to have belonged to Daniel Jorjani (DJ). In February of 2017, Daniel Jorjani was Principal Deputy Solicitor (PDSOL) at the Department of Interior: DJ, the PD, at SOL. (I have no idea what the 9999 is about.) He’s now Acting Solicitor and — let’s not forget — he also serves as the Department’s Chief FOIA Officer.

Back in March, the DJPDSOL9999 account was following a number of environmental organizations, like EarthJustice, the NRDC, the Center for Biological Diversity, Defenders of Wildlife, Western Environmental Law, Wilderness Watch, Cultural Survival, and Indian Land Tenure. DJPDSOL9999 was also following Jenny Rowland Shea, who writes about public lands for American Progress, Anna Massoglia, who researches dark money, Aaron Weiss from the Center for Western Priorities, and climate scientist Katherine Hayhoe. The list went on.

At the time he followed me, @DJPDSOL9999 had “liked” only one thing, and that was on March 21st of this year: a retweet with comment by “Matilda Williams” (@katherinewill27) of a tweet by Swing Left of a Washington Post article.

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The article in question is by Julie Ellperin: “Federal Judge Demands Trump Administration Reveal How Its Drilling Plans will Fuel Climate Change.” It’s about a ruling by U.S. District Judge Rudolph Contreras that the Department of Interior “violated federal law by failing to take into account the climate impact of its oil and gas leasing in the West.” Judge Contreras ordered the Bureau of Land Management “to redo its analysis of hundreds of projects in Wyoming.” It was a big loss for BLM. Jeremy Nichols of Wild Earth Guardians is quoted as saying that the ruling “calls into question the legality of the Trump administration’s entire oil and gas program” — which is, of course, Daniel Jorjani’s responsibility.

The lazy false equivalence drawn by Matilda Williams — Obama too! — misses the entire point of Ellperin’s article. “While the Interior Department began to take into account the climate impacts of federal oil, gas and coal leasing toward the end of Obama’s second term, administration officials jettisoned those plans when President Trump took office.” Zinke, Pruitt, and Jorjani himself were enlisted in this fight, and back in March, DJPDSOL9999 apparently felt that they got a bad deal.

In theory, there’s nothing wrong with the Chief FOIA Officer at the Department of Interior operating a stealth account on Twitter. If, however, he’s using it to track people who are making public records requests, that is going to raise serious ethics concerns, especially if he is denying or withholding records on the basis of what those people publish.

Perhaps the Inspector General’s report will shed further light on the matter.

Read other posts about the Boundary Waters reversal here

A Note on the Jorjani Confirmation Hearing

The way Interior has acted under the Trump administration is the textbook definition of a political cartel, using state resources to help the special interests. And it sure looks to me like Mr. Jorjani has been a key member of the cartel.
-Senator Ron Wyden

Jorjani_ConfirmationWhen asked by Senator Manchin whether he could set aside political allegiances and provide “forthright legal analysis,” Daniel Jorjani offered assurances, but his confirmation hearing on Thursday kept circling back to the question.

Senator Cantwell said she was “trying to get an understanding of your commitment to what is the law and whether you will help follow the law. That’s the key thing I’m after.” Senator Wyden wanted the other nominee in the room, Mark Greenblatt, to give him written specifics about how as Inspector General at Interior he would maintain his independence, “and keep these political appointments”  — people “like Mr. Jorjani,” he added — “from interfering with protecting the public.”  Senator King wanted to know whether Jorjani has had any contact with people associated with Freedom Partners or the Koch Brothers since taking his post at Interior. Jorjani was not prepared to say he had not, and at the end of the hearing promised to go back and check.

When her turn came, Senator Hirono said it was “hard to believe” that Jorjani’s work for the Koch Brothers between 2009 and 2017 “does not influence [his] opinions.” She cited his M-Opinion on “incidental take,” according to which oil companies that inadvertently kill migratory birds (in a spill, for instance) will no longer face penalties or prosecution. Hirono wanted to know why Jorjani issued that opinion.

Hirono: A lot of these challenges under this law have come from, have been lawsuits involving the oil and gas industry. So who benefits most from your opinion that totally stopped prosecutions for incidental take under this law? What industry most benefits from your opinion?

Jorjani: I’m not aware of any particular industry that benefits from this. I’d like to think that he American people benefit from a restrained approach.

Hirono: Yeah, I’d like to think so too. But you cannot escape the conclusion that the people you used to work for before, the Koch Brothers, this is one of their biggest issues that they wanted to have done away with….. I would say the oil and gas industries are the biggest beneficiaries.

Senator Manchin summed up what appeared to be the skeptics’ view:

as Acting [Deputy Solicitor General] you came in and overturned 7 of the 8 [Tompkins] opinions….Those things were basically approved as the previous administration was outgoing. We found also these had been exhaustively studied and Ms. Tompkins was well regarded and following the rule of law. And in all honesty the observance I have is that basically that your political ideology overtook…the rule of law.

For his part, Jorjani made the striking claim that a directive from the president’s Chief of Staff authorized him “to review every regulation and every opinion,” including previous M-Opinions by his predecessor, Solicitor Hillary Tompkins.

The directive in question appears to be the Memorandum for the Heads of Executive Departments and Agencies issued by Reince Priebus on January 20, 2017, which put in place a Regulatory Freeze, affording Trump’s political appointees “the opportunity to review any new or pending regulations” and specifically any “questions of fact, law, and policy they raise.”

This is the first time I have heard anyone at Interior publicly and directly connect the overturning of Tompkins’ M-Opinions with this directive. Jorjani seems to have read it expansively, virtually as carte blanche.  He called it the “catalyst” for his multiple reversals of Tompkins. It now has a place on the Twin Metals timeline.

Read more 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 Note on the Boundary Waters Reversal

Jorjani Calendar

A 25 July 2017 entry from Daniel Jorjani’s calendar shows a meeting with Antofagasta Plc on the Twin Metals project.

One point I hoped to get across in Monday’s post about the Boundary Waters reversal has to do with journalism, or, more broadly, with storytelling. Just to highlight: scandal-mongering that generates clicks doesn’t necessarily get at the more prosaic and more complex truth of the story, and may end up doing a disservice. In the case of the Boundary Waters reversal, it is tempting to focus on the story of Chilean billionaire Andronico Luksic Craig and his Washington, D.C. tenants, Ivanka Trump and Jared Kushner. Was Luksic Craig’s purchase of the mansion where Jared and Ivanka now live an opening bid? Was the reversal connected to the rental?

This story of the rich and famous still merits investigating, but it carries with it a whole set of ideas — exaggerated and somewhat cartoonish ideas — of what corruption looks like: foreign billionaires, mansions, nepotism, winks and nods (remember what Luksic Craig said about meeting Trump at the Patriots’ game: “lo saludé.” “I said ‘hi’”).  All of those elements are certainly in play here, and they are part of what makes this administration appear so unabashedly corrupt and downright villainous.

At the same time, the story of Luksic Craig and his D.C. tenants could turn out to be a red herring, or what nowadays people call a nothingburger or fake news. Besides, there’s another, more immediately credible story that’s just there for the telling. What it lacks in tabloid glamour it makes up for with evidence. It unfolds among the banalities of meeting rooms, conference calls, memos, and after work events. This is the story Jimmy Tobias pursues in an excellent piece in the Pacific Standard, which I had not read before writing my post (and which, after reading, I linked to in a postscript).

Tobias beat me to the punch on the FOIA request, and obtained Principal Deputy Solicitor Daniel Jorjani’s calendar from May through December of 2017. He identifies two meetings about the Twin Metals project. The first is on June 14, 2017, with Raya Treiser and Andy Spielman of WilmerHale, the law and lobbying firm, on behalf of Antofagasta Plc.

Spielman is the Chair of WilmerHale’s Energy, Environment and Natural Resources Practice, and his name appears on the calendar heading, so we know that this is a high priority matter for the lobbying firm and presumably for the Department of Interior. And Treiser comes directly from the Department of the Interior, where she served under President Obama. She helped to “streamline” permitting on large infrastructure projects, and worked on the reform of offshore drilling regulations and energy development in Alaska. Now, as her biography on the WilmerHale site informs us, she has “successfully leveraged her substantive knowledge and insight into government processes.”

The second meeting is directly with Antofagasta Plc: the Chilean mining company comes to the Department of Interior to discuss its Minnesota claim, and it appears the Department rolls out the red carpet. WilmerHale had done its work. In addition to Principal Deputy Solicitor Jorjani, thirteen administration officials are in attendance, representing the highest reaches of the Department of Interior, the Bureau of Land Management, and the Environmental and Natural Resources Division of the Department of Justice. As Tobias notes, no conservation groups were invited to discuss the reversal with the Department of Interior. This was a conversation for insiders only.

At the center of this story is not a mansion, but a revolving door (and if you are not familiar with Bill Moyers’ short video essay on the subject, you should be). This feature of the story becomes even more apparent when we look at a couple of other meetings on Deputy Solicitor Jorjani’s calendar that Tobias didn’t flag but are connected with the Boundary Waters reversal. One is a Friday, May 26 call with Rachel Jacobson of WilmerHale, regarding a “DC Bar Event”; this call or this event might well have provided an opportunity to tee up the Twin Metals issue. It is the first contact WilmerHale makes with Principal Deputy Solicitor Jorjani— and who should they choose for that task but Jacobson, who held Jorjani’s job of Principal Deputy Solicitor under the Obama administration.

Then on Thursday, September 7th, when work on the reversal memo is presumably well underway, there is an internal meeting on Twin Metals: Jorjani with Jack Haugrud, who was Acting Secretary of the Interior until Zinke’s appointment, and Joshua Campbell, an Advisor to the Office of the Solicitor. Campbell is profiled here, on Western Values Project “Department of Influence” site, documenting the revolving door between special interests and the Department of Interior.

In these meetings, the public interest does not even come into play.

Postscript: Today, as I was writing this post, the Washington Post reported that the Forest Service will cancel a planned environmental impact study and instead conduct an abbreviated review of the Obama-era proposal to withdraw the Superior National Forest lands near the Boundary Waters from minerals exploration for up to 20 years. The story also appears in the Star Tribune. Things are moving fast now, and pressure is mounting.

Hazards of the Copper Antimarket

A couple of weeks ago, I wrote a post connecting Chinese urbanization with the new mining around Lake Superior. Chinese demand for copper — which is used in everything from large scale infrastructure projects to new housing construction — is likely what brought Rio Tinto to the Upper Peninsula in the first place. But the copper extracted by Rio’s successor Lundin Mining, which took ownership of the controversial Kennecott/Eagle Mine in Michigan’s Upper Peninsula just last week, or Polymet, which is developing a mine in Minnesota near the Boundary Waters Canoe Area Wilderness, won’t be shipped directly from the US to China. Instead, it will travel a long and circuitous route from Lake Superior through a tightly-controlled system of warehouses, and now the copper those warehouses hold will be the property of big financial firms.

This new arrangement — copper’s new holding pattern — entails new risks for the global financial system, the American economy and the places where copper is mined.

A story in the Times this past weekend reported that Goldman Sachs, Morgan Stanley and other big Wall Street players are already manipulating the market for aluminum, and developing Bank Holding Companies that will mix finance with global commerce in new ways. By hoarding aluminum and exploiting the rules of the London Metals Exchange — which the banks owned until just last year, when the LME was sold to a group of Hong Kong investors — Goldman and other banks are set to make billions of dollars without actually moving aluminum into the market. Copper, as the story noted, is “next up.”

Last winter, the SEC approved two new copper-backed Exchange Traded Funds, one from JPMorgan, which was the first of its kind, and a second from BlackRock. These new Copper ETFs not only permit but require JPMorgan and BlackRock to take possession of and physically store tons of copper in warehouses. It’s an audacious plan that will “ultimately allow JP Morgan, Goldman Sachs and BlackRock to buy 80 percent of the copper available on the market on behalf of investors and hold it in their warehouses.” A few firms will essentially control the world copper market — or to establish what rightly deserves to be called an antimarket. (The term is historian Fernand Braudel’s, and has been popularized by Manuel DeLanda).

Big copper consumers like Southwire and Encore registered their dissent, but SEC officials capitulated after heavy lobbying by too-big-to-fail finance. The SEC even said it shared the view put forward by the banks, that the new funds would “track the price of copper, not propel it, and concurred with the firms’ contention — disputed by some economists — that reducing the amount of copper on the market would not drive up prices.” Robert B. Bernstein, an attorney representing the copper consumers, suggested in a letter to the SEC last year that this took too narrow a view, and that copper prices were not the only thing to worry about. Bernstein argued that the investment houses’ hoarding of copper will disrupt the copper market, impede economic recovery, and work “contrary to the public interest.”

The public interest had some defenders at yesterday’s Senate Banking Committee hearing on Financial Holding Companies, where ETFs and the banking practices behind them came under scrutiny. Chaired by Senator Sherrod Brown and featuring expert testimony from Saule Omarova, Joshua Rosner, Timothy Weiner and Randall Guynn, the hearing touched several times on how the control of metals markets by financial players like Goldman and JPMorgan will affect the American consumer and greatly heighten the risk of another financial crisis like the one in 2008 — and necessitate another bailout by American taxpayers of firms that are too big to fail (but seem, oddly, hellbent on failure).

At the hearing’s end, Sherrod Brown said we need “to ask ourselves what it does to the rest of our society when wealth and resources are diverted into finance.” It was a good summary comment, because the hearing raised a whole host of questions about the social hazards this diversion entails.

For instance, what effect will these ETFs and financial manipulation of the global copper market have on the communities where copper is mined? Yesterday’s hearing didn’t directly address the point. Randall Guynn tried to suggest that a bank-controlled mine in a bank-controlled market where the bank warehoused and manipulated the price of the metal being mined would create a reliable and steady labor market. But others warned that the speculative bubble will inevitably burst, and that will leave both investors and communities in the lurch. Even while the boom lasts, workers and communities are likely to be powerless against giant commodity-extracting, -holding and -trading financial conglomerates with lobbying power, friends in high places and apologists like Randall Guynn.

Will the cornering and squeezing of the copper market by big finance exert new pressures to relax environmental controls? Why not, especially since multinational miners already complain about the delays caused by prudent environmental assessments? Both Omarova and Rosner asked us to imagine a scenario in which the Deepwater Horizon catastrophe happened on an oil rig owned by JPMorgan; now, with banks moving aggressively into copper, a mining catastrophe like the Bingham Canyon collapse (which I wrote about here) could send shockwaves throughout the entire financial system. “If we saw a catastrophic event at non-financial facility,” Joshua Rosner told the Committee, “the impact to the [financial] institution and the Fed would be catastrophic.”

Omarova stressed the complexities of these commodity markets, and expressed serious doubts that regulators “can oversee risks caused by Bank Holding Companies and this mixture of commerce and banking.” Rosner echoed these concerns: “to suggest regulators have ability to manage holding companies is to ignore all the areas regulators failed to oversee in 2008,” he said. Worse, the banks themselves would be incapable of predicting, controlling or even appreciating the risks to which they are exposed.

I made a similar point about JPMorgan’s inability to manage its exposure to human rights risks in the wake of the London Whale episode.

The new mix of banking, speculation and holding of commodities, said Saule Omarova, may make another London Whale more likely, and worse. So history may be about to repeat itself. Omarova went on to suggest that in making their moves into the commodities markets, Goldman, JPMorgan and the other firms playing this dangerous new game seem to have adopted a business model pioneered just a little over a decade ago, by Enron. That observation prompted Senator Elizabeth Warren’s dark comment: “This movie does not end well.”