Tag Archives: regulatory capture

Did Interior Abandon NEPA for Antofagasta?

New documents show top officials at the Department of the Interior planned to review Antofagasta’s mineral leases near the Boundary Waters under the National Environmental Policy Act, or NEPA, before renewing them. That plan appears to have been abandoned after meetings with Chilean mining company executives in spring of 2018.

The latest Boundary Waters documents in response to my FOIA lawsuit come from Daniel Jorjani, who was Deputy Solicitor at the Department of the Interior when these records were created. The release consists of 122 heavily redacted pages, mostly emails and briefings that circulated as the Department of Interior was preparing to announce that it had reinstated Antofagasta’s mineral leases on May 2, 2018.

These records show that the Bureau of Land Management decided against any “proactive” statement (like a press release) on the reinstatement, and opted instead to create an “if-asked” statement for the press. Russell Newell drafted the if-asked statement and Associate Solicitor Karen Hawbecker reviewed and edited it on Monday, April 30. Deputy Solicitor Jorjani approved Hawbecker’s edits at 5:30PM the same day.

Newell’s draft and Hawbecker’s edits of the if-asked statement are both fully redacted, but we know what the if-asked statement said because Dylan Brown, a journalist writing for E & E News, asked.

Lori Mashburn, White House Liaison at the Department of the Interior, included the official response to Brown’s query in her May 4 Daily Update for Cabinet Affairs. The Update went to Jorjani, David Bernhardt, Doug Domenech and other political appointees as well as Russell Newell. 

At the end of April, 2018, the Department understood that the lease renewals would require “review under the National Environmental Policy Act.” That is also the understanding of the law set forward by the plaintiffs in a lawsuit over the lease renewals currently before the US District Court for the District of Columbia: 

The National Environmental Policy Act (“NEPA”) requires that agencies take a “hard look” at the environmental impacts of their actions before the actions occur, and that they prepare an Environmental Impact Statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976). Courts have clarified that in the mineral leasing context, an agency must prepare an EIS analyzing the ultimate effect of mineral development when it issues a lease without reserving absolute authority to prevent development on the lease. 

But when it came to renewing Antofagasta’s mineral leases, one year later, the Department of the Interior set NEPA aside. Instead of taking a hard look, as required by NEPA, they issued an EA or Environmental Assessment — which is really only a first step in determining whether a project will have significant environmental impact. 

Why the change of plan? As I’ve written here and elsewhere, the Department of the Interior seems to have abandoned plans for an EIS after meetings with executives from Antofagasta in spring of 2018.

In a March 6 meeting summary included with a previous release of documents, Antofagasta officials explicitly stated that an EIS would interfere with their plans. They wanted a Categorical Exclusion; they would settle for an EA. That is exactly what they got.

So it is difficult to avoid the conclusion that top Interior officials knew renewing the leases would require review under NEPA, but they deliberately set aside US law in order to do the bidding of Chilean mining executives.

The August documents are now online here, and all the Boundary Waters documents I’ve obtained to date are here.

Read more about the Boundary Waters reversal here.

More Evidence Foreign Mining Company’s Interests Were Top Priority at Trump’s Interior

This month’s release of Boundary Waters documents in response to my FOIA lawsuit may only number 19 pages, but it helps highlight an important point, one I have repeatedly made when writing and speaking about this issue: reviving Antofagasta’s expired mineral leases in Superior National Forest was a top priority for the incoming administration.

We don’t know why.

The July release shows officials at BLM revisiting the proposed mineral withdrawal in Superior National Forest much earlier than previously known. On January 25, 2017, Richard Cardinale and other Interior staff meet to discuss a correction to the Federal Register. The original notice of the proposed two-year mineral withdrawal incorrectly stated January 21, 2017 as the end date (which would amount to a two-day, not a two-year segregation period). This seems like straightforward, conscientious work.

Two days later, on January 27, 2017, just one week after the inauguration, political appointee Daniel Jorjani seizes on this briefing and forwards it — at 4:48AM — to Katharine MacGregor and Kathleen Benedetto.

It’s clear that the trio has been discussing Antofagasta’s Twin Metals project in northern Minnesota. Why the routine publication of an errata notice in the Federal Register should have excited them, or how it might have served their ends, remains unclear.

But this Jorjani email appears to have gotten the ball rolling. MacGregor requests a list of all public land withdrawals and segregations made in the last year of Obama’s presidency, which Michael Nedd dutifully prepares and delivers on Monday, January 30.

We know from the timeline that by Thursday of that same week, February 2, Kristin Bail is putting together a briefing for MacGregor on Antofagasta’s leases near the Boundary Waters. I am unable to say whether other segregations and withdrawals on Nedd’s list were dealt with so zealously.

It seems safe to say that the business interests of a Chilean conglomerate took precedence over a whole lot of other matters at the Department of the Interior in the first weeks of the Trump administration.

The new documents are here.

Read more about the Boundary Waters reversal here.

A Debate Over Environmental Review? New Boundary Waters Documents

“Again pinging BLM”: in 2017, the US Forest Service appears to have been concerned over what standards of environmental review applied to the proposed mineral withdrawal in Superior National Forest.

A new set Boundary Waters documents arrived yesterday. This is the latest monthly installment in a “supplemental production” of responsive records the Department of Interior agreed to make after I sued for failure to comply with FOIA. This batch includes 378 pages, pretty thoroughly redacted. I’ve put them online (1,2, 3, along with the rest of the Boundary Waters documents I’ve obtained) and started to go through them.

Their arrival might be timely. Some of the records show officials at the Department of Interior trying to decide on appropriate standards of environmental review as they work on renewing Chilean mining giant Antofagasta’s mineral leases in Superior National Forest. That is a question at the heart of a new lawsuit filed at the start of this month in US District Court for the District of Columbia.

Wilderness Society et al. v. David Bernhardt et al. says the Bureau of Land Management failed to comply with the National Environmental Policy Act (NEPA) in renewing Antofagasta’s mineral leases. It also charges that the US Forest Service acted in an arbitrary and capricious manner (in violation of the Administrative Procedure Act) when it reversed course and promoted mine development, despite having previously found that allowing sulfide mining near the Boundary Waters would pose unacceptable risks.

Hopefully this case is going to shed light on the question why Interior rushed to renew Antofagasta’s mineral leases, and at whose direction, and why Secretary of Agriculture Sonny Perdue abruptly cancelled the scientific study of sulfide mining near the Boundary Waters.

While the new documents don’t answer those questions directly, they conform to the pattern we’ve seen in previous document releases. They paint a picture of nearly complete regulatory capture, with Interior officials meeting and working closely with executives from Antofagasta and their Twin Metals Minnesota subsidiary as well as lobbyists from WilmerHale.

There are, for example, records here of a March 6, 2018 meeting and another on March 22nd. Daniel Altikes (the Antofagasta executive I discussed in a previous post) flies up “from Chile” for that one:

The documents also show Antofagasta/Twin Metals weighing in on what standards of environmental review should apply to the renewal of their mineral leases as well as their preference right lease applications (or PRLAs). According to the meeting summary prepared by Ryan Sklar of the Office of the Solicitor, the mining company recognizes “that there is debate about the type and scope of review that is necessary/appropriate.” Not surprisingly, they would prefer a Categorical Exclusion (CX: meaning the renewal would essentially be exempt from environmental review!), but they will settle for a “limited EA” (which is essentially what they got).

The meeting with Altikes and the lobbyists from WilmerHale on Thursday, March 22nd appears to be the follow up Sklar mentions here. It’s unclear from the documents I have whether there was much debate on that occasion or any dissent in the room at all.

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.

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

A March 1, 2019 motion filed in Voyageur 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 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.

Update, 22 March 2019. One day after I posted this, on March 15th, 2019, attorneys for the defense filed a brief in opposition to the plaintiff’s March 1 motion.

Writing for the DOJ, Deputy Assistant Attorney General Jean E. Williams maintains that documents obtained through FOIA are not necessarily part of the administrative record. These are merely “internal transmittal emails, deliberative documents, and privileged attorney work product” that the plaintiffs “offer…exclusively in an improper attempt to prove the subjective motivation or mental processes of the decisionmaker.” The federal government cites plenty of case law to support this point.

Further,

this Court should deny Plaintiffs’ belated motion because Plaintiffs have not met the heavy burden of overcoming the presumption of administrative regularity that attaches to an agency’s designation of the administrative record and because the this  [sic] Court’s review of any reviewable, final agency action challenged by the Complaints should be limited to consideration of whether the agencies’ stated reasons are arbitrary and capricious.

To the layperson, it would seem that the arbitrary and capricious nature of those “stated reasons” is exactly what the FOIA production suggests. The Jorjani memo appears to have been an exercise in a foregone conclusion, written from a blueprint set out in 2016 by Seth Waxman, the mining company’s attorney. There are those meetings with the CEO of Antofagasta Plc at the US Embassy in Santiago, Chile, at the Department of Interior, and at the White House. There is abundant evidence that Interior worked hand in hand with mining company representatives to reach its conclusions.

None of that should enter into determining whether the FOIA production is part of the administrative record, the federal government argues. The court should look at the emails arranging these meetings, and determine only whether they are rightly considered part of the administrative record. The emails were not themselves “considered in reaching the decisions to reinstate the leases,” they assert. Or, as they put it at the end of their brief, the emails were not “actually before the decisionmaker.”

Finally, Plaintiffs’ motion should be denied because Plaintiffs offer these documents for an impermissible purpose. Plaintiffs admit that they intend to use the documents to attempt to show Federal Defendants’ subjective intent in reaching the challenged decisions. But the law of this Circuit is clear that APA review is limited to an agency’s stated justifications, not the mental processes or subjective motivations that may underlie a decision. For this reason, this Court should deny Plaintiffs’ motion because the proposed supplement is irrelevant to the questions before the Court.

The Court is not going to guess at mental processes or motivations, but can it really come to a decision about the arbitrary and capricious nature of the Jorjani opinion without considering what the plaintiffs call “the why and the how” of the Jorjani opinion? Or without taking into account the fact that the CEO of Antofagasta himself was “actually before the decisionmaker,” several times? That is what these documents show.

Update, 23 March 2019. Yesterday, as I was writing the previous update, the Plaintiffs filed a reply to the DOJ brief.

In this latest filing, the attorneys for Voyageur et al. argue that the documents produced by Interior in response to my FOIA request cannot be dismissed on the grounds that they are just “deliberative” or covered by attorney-client privilege. The agency has already redacted these documents to protect deliberative process and preserve attorney-client privilege, and “plaintiffs only seek to include the documents as redacted.”

They also make clear that their real complaint has to do with the Department of Interior claiming that they were merely correcting an error in the M-Opinion issued by Solicitor Tompkins. “Under the banner of error correction,” Jorjani smuggled in a new policy. “The documents…are relevant to establishing whether the stated rationale was pretextual,” in which case, they would be relevant to the plaintiffs’ claim that the agency did not have the proper authority to issue the new opinion.

Finally, they take up the DOJ’s argument that the documents in question were not “before the decisionmakers.” As I mentioned yesterday, this argument essentially amounts to saying that the decisionmakers did not have the emails themselves before them as they worked. Here, the plaintiffs cite case law to the effect that “a document need not literally pass before the eyes of the final agency decision maker to be considered part of the administrative record,” as a 1996 case, Miami Nation of Indians v. Babbitt, reads. But that is not even the major flaw in DOJ’s argument, they say. 

The documents were “to and from” the decisionmakers themselves, “generated by, and circulated between” them; and “agency decisionmakers considered them directly or indirectly” in reaching their decisions. Some of the documents show decisionmakers running their work by the White House and other policymakers. Looking at the Twin Metals timeline, it is hard to deny that “influential officials responsible for domestic and international policy concerns discussed Twin Metals with the agency decisionmakers in the lead-up to the challenged decisions,” as the Plaintiffs assert here.

Still others show requests coming directly from Antofagasta Plc, and internal discussions at Interior about the meeting between CEO Arriagada and high-level officials. The DOJ has already introduced into the administrative record the April 17, 2017 letter from Ivan Arriagada to Ryan Zinke (which I discuss here). So they admit that’s relevant and part of the record. Why admit that and exclude other correspondence that shows the extent of Antofagasta’s influence over the Office of the Solicitor, its meetings with the State Department, or the Trump White House?

If I may venture a summary: this appears to be a case of high-level public officials blatantly serving the private interests of a foreign mining conglomerate, and pretending all the while to be scrupulous about the law.

Update, 8 April 2019. Today, Judge McFadden issued an order denying the Plaintiffs’ motion to admit documents produced through my January 2018 FOIA request. The court relied for its decision on the “strong presumption” that an agency has properly compiled the administrative record. So “the Court finds that the Federal Defendants have compiled the administrative record here in good faith.” This is a setback for the plaintiffs, and, for what it’s worth, a good occasion for me to think about the record I am producing here.

Read other posts about the Boundary Waters reversal here.

Is Corruption at Interior Putting the Boundary Waters At Risk?


On the afternoon of Friday, December 22nd, with Congress in recess and most Americans already starting their holiday celebrations, the Department of the Interior issued a 19-page legal memorandum reversing hard-won, eleventh-hour Obama-era protections for the Boundary Waters Canoe Area Wilderness in northern Minnesota. Signed by Interior’s Principal Deputy Solicitor Daniel Jorjani, Memo M-37049 allows Twin Metals, a wholly-owned subsidiary of the Chilean conglomerate Antofagasta Plc, to renew its leases of Superior National Forest lands where it proposes to mine copper, nickel, and other minerals for the next 100 years.

Even one year of mining would scar the land, destroy wetlands, wreck the forest and fill it with industrial noise, and pollute the water. And this kind of mining — sulfide mining — always risks major environmental catastrophe, long after a mine is closed and the land reclaimed. After a brief reprieve, the Twin Metals project is again threatening this unique public wilderness area, along with the thriving tourist and outdoor economy that has grown up around it.

The reversal was immediately met with allegations of corrupt dealing. In a statement calling the move by Interior “shameful,” Minnesota Governor Mark Dayton cried foul.

A December 22nd headline in the Wall Street Journal offered what appeared to be a straightforward explanation: cronyism. “Trump Administration to Grant Mining Leases That Will Benefit Landlord of President’s Daughter Ivanka Trump.” But Chilean billionaire Andronico Luksic Craig, whose family controls Antofagasta Plc, and who only after Trump’s election purchased the Washington, D.C. mansion Ivanka Trump and Jared Kushner rent for $15,000 a month, claims never to have met his tenants, and says he met Donald Trump only once, at a New England Patriots game.

It’s unclear whether Luksic Craig’s denials can be taken at face value and whether they are enough to dispel the notion that the reversal was made directly to benefit Antofagasta or the Luksic family. What prompted the action? Who directed it? Who contributed to the memo, and who reviewed it? What conversations did Interior Secretary Ryan Zinke, Deputy Solicitor Jorjani, and other administrators have about the reversal, and with whom?

The public deserves clear answers to these questions, and last week, I submitted a FOIA request to the Solicitor’s Office at the Department of the Interior, to see if I might gain some insight into the process behind Memo M-37049. At the same time, it’s worth noting that these are not the only questions worth asking. Luksic Craig and his Washington, DC mansion may make good headlines, tabloid fodder, and Twitter snark, and there is no ignoring the whiff of impropriety about his real-estate dealings with the president’s daughter and son-in-law, who also happen to be senior White House advisors. But that’s not the whole story here. A scandal involving Luksic-Craig and his tenants, or some direct dirty dealing between Antofagasta and Interior, might eventually come to light, but the prospect of such a scandal might also serve to distract us from other, large-scale corruption that continues to put the Boundary Waters — and other public lands and waters — at serious risk.

Put the reversal in context. Consider, for example, the Executive Order, entitled “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals,” that was issued just two days before the Boundary Waters reversal, and which, like the Interior memo, sets the stage for exploitation of mineral resources on public lands. The EO appeared to be the policy outcome of a U.S. Geological Survey of the country’s critical minerals resources published on December 19th; but Trump’s December 20th order was years, not one day, in the making.

The EO revives Obama-era legislative battles over so-called strategic and critical minerals and declares victory by executive fiat. Back in 2013, pro-mining measures introduced in both the House (HR 761) and the Senate (S 1600) promised to “streamline” the permitting process for multinational companies mining on federal lands, like Superior National Forest. The Obama administration opposed them on the grounds that they would allow mining companies to circumvent environmental review. Proponents of HR 761 called it cutting red tape; the resolution actually tried to shut the public out of the process. It touted jobs, but, as critics pointed out, provided no real strategy for creating them; and it hawked anti-Chinese hysteria of the kind that candidate Trump regularly advanced. (Tellingly, House Republicans rejected a motion that would have barred export to China of strategic and critical minerals produced under the HR 761 permit, in tacit acknowledgment that China drives global demand for copper and nickel.) Coming just two days after this EO, the Boundary Waters reversal looks less like a one-off favor to a Chilean billionaire, and more like a coordinated move in a broader campaign.

This subversion of public process is not just the dirty dealing of a few bad actors. It’s also the consequence of weakened institutions; and institutional sabotage — or what Steve Bannon pretentiously called the deconstruction of the administrative state — is the precursor to large-scale corruption. Scott Pruitt might still be the poster boy for putting the fox in charge of the henhouse, but Ryan Zinke appears to be pursuing a similar brief at Interior. Though his bungling of the offshore drilling announcement made him appear incompetent, he is making big changes to favor big mining. The Secretary has made it one of his agency’s top ten priorities to “ensure access to mineral resources” and committed to minimizing “conservation objectives” that interfere with extractive industrial development. His plan to shrink Bears Ears followed a map drawn by a uranium mining company. At Grand Staircase-Escalante and Gold Butte National Monuments, Zinke has virtually surrendered vast swaths of public lands to extractive industry.

The Boundary Waters reversal, too, looks like the work of institutional saboteurs. It settles a lawsuit against the Department of the Interior by conceding that the government should not have discretion over public lands when commercial interests are at stake. Its author, Deputy Solicitor Jorjani, did a brief stint at Interior during George W. Bush’s second term, but it was his high profile job as Executive Director of the Koch Institute that distinguished him as the right man for Ryan Zinke’s Interior. As Polluter Watch, a project of Greenpeace, notes, Jorjani was the Koch Institute’s very first hire, and among the five most highly compensated employees at the Charles Koch Foundation. Now, along with Scott Cameron and Benjamin Keel, Daniel Jorjani works with the team at Interior charged with “reviewing rules their previous employers tried to weaken or kill,” according to reporting by the New York Times and Pro Publica. Similar deregulation teams, “connected to private sector groups that interacted with or were regulated by their current agencies,” were formed at all administrative agencies. The teams put public institutions at the service of powerful patrons, subordinating public protections to private interests.

This capture and sabotage of government agencies compounds and multiplies risk, removing public safeguards and compromising appointed guardians. In the case of the Boundary Waters, the risk of irreversible damage and environmental catastrophe would extend far beyond the mining location, because mining in Superior National Forest would also significantly intensify the cumulative effects of the recent boom in leasing, exploration, and drilling throughout the Lake Superior watershed.

All around the greatest of the Great Lakes, the industrial footprint of sulfide mining operations is expanding rapidly. Just to the southwest of the Boundary Waters, for example, Polymet, a company that has never operated a mine before, proposes building an open pit copper and nickel mine that will require water treatment and tailings dam maintenance “in perpetuity” — that means forever. Meanwhile, Scott Pruitt is dismantling federal rules requiring hardrock mining companies to take financial responsibility for cleanup.

State regulatory agencies are poorly equipped to oversee these new projects. They often fail to give the public a meaningful voice in permitting, or obtain the required prior consent from the region’s Indigenous nations. For their part, many state politicians are racing to deregulate, or at least accommodate, the mining companies. Just this past October, Wisconsin republicans repealed the state’s Prove it First law, which required copper, nickel and gold miners to prove that they could operate and close a sulfide mine without producing acid mine drainage. (They never proved it.) In Michigan, where Canadian mining companies are moving aggressively into the Upper Peninsula, State Senator Tom Casperson has just proposed giving mining companies and other representatives of industry “disproportionate clout” in the review of environmental rules.

Obviously this all goes way beyond doling out favors to billionaire friends or cronies at Mar-A-Lago, and it didn’t start when the Trumps came to town. Until it is called out, voted out, and rooted out, corruption at this scale – coordinated, institutionalized, systemic – will make a mockery of rule-making and oversight, and put our public lands, as well as our public life, at risk.

Postscript: This January 10th article by Jimmy Tobias in the Pacific Standard takes a careful look at Daniel Jorjani’s calendar, which was obtained through a records request, and identifies two meetings with representatives of the Twin Metals mining project: a June 14, 2017 meeting with Raya Treiser and Andy Spielman of WilmerHale on behalf of Twin Metals, and a July 25th meeting with Antofagasta Plc. I discuss these meetings in this follow up post.

Read more posts about the Boundary Waters reversal here.

Three Questions for the Michigan DEQ on the Back Forty Project

Earlier this month, the Michigan Department of Environmental Quality announced its intention to permit the Back Forty Project, an open-pit gold and zinc sulfide ore mine that Aquila Resources, a Canadian company, plans to develop near the headwaters of the Menominee River. In response to the MDEQ’s request for public comment by November 3rd, I’ve submitted these three questions. I’m posting them here so that others might consider them in the run up to the public meeting with the MDEQ in Stephenson, Michigan on October 6th.

  1. In determining that the Back Forty Project application meets the requirements for approval under Part 632, did MDEQ take into account the cumulative effects of sulfide mining throughout the Lake Superior watershed? We know that the Back Forty project poses a significant risk to the Menominee River all by itself. With the mine in close proximity to the river, a flood, berm collapse, subsidence or a slide could destroy the Menominee River; to answer these serious concerns by asking the company to add a “synthetic, manmade liner under their waste/tailing rock facility,” as the DEQ has proposed, is to trivialize them. Other development that the mine will inevitably bring, including haul routes, power lines, lights, fueling stations, exhaust and machine noise, will leave a large industrial footprint and disturb the Menominee River and its environs in countless ways. At the same time, this mine will heighten the risk, in the long term, of large-scale environmental destruction posed by the resurgence of sulfide mining not just in Michigan’s Upper Peninsula, but in Minnesota and Canada as well — all around the lake and throughout the Lake Superior watershed. Has the DEQ completed or participated with neighboring state agencies and tribal authorities in a scientific study of the cumulative impacts of sulfide mining around Lake Superior? Has the DEQ issued guidance on how cumulative environmental effects should factor into its decision-making process for permitting new mines in Michigan?
  2. Has MDEQ made any determination about the human rights implications of its decision to allow the Back Forty project to go forward? Human rights are not outside the DEQ’s bailiwick, no matter how hard it may try to exempt itself. Witness Flint. In the present case, the DEQ’s oversight is inextricably bound up with the state’s obligation to protect human rights abuses by third parties. Aquila’s Back Forty project is sure to disturb, and likely to desecrate, lands traditionally belonging to the Menominee and still held sacred by them; and making provisions for archaeological recovery and preservation of mounds and other sacred sites does not adequately address the basic human rights issues involved here. The headwaters of the Menominee River are central to the tribe’s creation story, marking the place where the Menominee people originated. Their very name derives from manoomin, or wild rice, which will not survive changes in sulfate levels or degradation of overall water quality. As tribal member Guy Reiter has said, “It’s no different than if an open-pit sulfide mine was put in Bethlehem for the Christians.” Seen from this perspective, the Back Forty is not only an affront to Menominee history; it also puts the cultural survival of the Menominee people at risk. How will the DEQ factor such human rights considerations into its decision-making process?
  3. What has the DEQ done to restore trust in its authority, and reassure the Menominee and people living downstream from the Back Forty project in Michigan and Wisconsin that it will exercise appropriate care? The Flint water crisis cast a long shadow, and reinforced the perception that “politics and poverty are big factors” in DEQ decision making. “The same attitude of disregard for citizens and the environment has repeated itself in DEQ decisions across our state for well over a decade,” said Marquette attorney Michelle Halley after news of the Flint water crisis broke; controversy over the renewed Groundwater Discharge Permit issued by MDEQ at Eagle Mine and legitimate concerns about lax oversight at Eagle East help make her case. Like all government agencies, the Michigan DEQ should operate in sunlight. Already, however, troubling questions have been raised about the transparency of the Back Forty permitting process. For example, Al Gedicks, Executive Secretary of the Wisconsin Resources Protection Council, asks why the DEQ appears to be in a “rush” to grant the Back Forty permit. So as things now stand, the DEQ enjoys de jure authority in Michigan under Part 632, but it is unclear whether the DEQ still enjoys de facto authority, which could only derive from demonstrations of regulatory competence. How does MDEQ intend to quell public concern that it is compromised or incompetent, and reassure the public that it is a responsible steward?