In this July 29th Fox 9 “Investigators” segment about sulfide mining near the Boundary Waters, I make a brief appearance at around the 7:30 mark.
Read more about the Boundary Waters reversal here.
It appears the FOIA department of the Solicitor’s Office at the Department of Interior has gone quiet on me, and has made it a practice if not a policy no longer to reply to emails or return phone calls about the status of my outstanding FOIA request. I should not like to think that they are giving me the cold shoulder because I published the first two batches of documents they produced, or that they are deliberately withholding or delaying the release of more documents. But with each passing day it’s getting harder to avoid a conclusion along those lines.
While trying to figure out if I’ve constructively exhausted administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i), which would give me grounds for a legal complaint, I thought I would look at the calendar entries recently posted online by the Department of the Interior for David Bernhardt, and see what I could learn about the role he played in the Boundary Waters reversal.
Before his nomination to be Secretary of the Interior (which the Senate Energy and Natural Resources Committee just advanced), Bernhardt served as Deputy Secretary of the Interior under Ryan Zinke. Before that, he was the head of the energy, environment and resources division at the lobbying firm Brownstein, Hyatt, et al; he represented many oil, gas and mining companies, and it remains unclear whether, or to what extent, he has severed ties with former private sector clients.
Bernhardt has balked at the requirement that he keep an official calendar, which would at least allow the American public to see who he’s been meeting with. The closest we have are typed agendas or “daily cards,” which list appointments and calls. The agenda items offer little detail, rarely specifying the subject of a meeting. This looks like more than just laziness or negligence. Bernhardt seems to believe the rules do not or should not apply to him, and he appears to be contemptuous of administrative process, norms, and law.
Much the same can be said for the PDF of Bernhardt’s calendar entries the Department of Interior released. There was no attempt to fill or even call out gaps in the record. Pages and entries are out of chronological order, November mixed with September, 2017 with 2018. Adding to the confusion, the PDF is not searchable; it is simply an image of the daily cards. Fortunately, my friend Michael Miles was able to perform a little software magic, and — voila! — we now have a searchable version of the 439 pages of daily cards that Interior produced. It’s online here.
We knew before this that Bernhardt was scheduled to be briefed on the Twin Metals matter sometime in August of 2017. As the timeline indicates, on Sunday, August 6th, Associate Solicitor Karen Hawbecker forwarded a briefing paper to her colleague Jack Haugrud “about the Twin Metals litigation in preparation for a briefing with David Bernhardt.” This was probably some version of the one page briefing that Kathleen Benedetto had prepared for Ryan Zinke back in April of 2017, and which had been adapted and forwarded to the US Embassy in Santiago, Chile at around the same time, in preparation for meetings with Antofagasta’s CEO, Ivan Arriagada. Bernhardt’s briefing would have reflected the progress that the Solicitor’s office had made since that time on the effort to reverse Solicitor Tompkins’ 2016 M-Opinion, following Seth Waxman’s blueprint.
It’s difficult to say whether this August briefing ever took place. Bernhardt’s daily cards show a meeting with Kathleen Benedetto on August 28th, 2017; and Benedetto at the time was carrying the Twin Metals brief. So perhaps that’s it. The daily cards also help us establish a little context for Bernhardt’s August briefing. We can see from his calendar that Bernhardt was in constant and regular contact with Michael J. Catanzaro, who was Special Assistant to the President for Domestic Energy and Environmental Policy before leaving in April, 2018. Bernahrdt and Catanzaro have a weekly call; sometimes they have lunch together. No surprise, as the two men come from the same world of lobbying for oil, gas, and mining interests; but what’s interesting about their regular contact is that it establishes a clear line of communication between the White House, or the Executive Office of the President, where Catanzaro served, and the highest levels of the Department of the Interior.
The revolving door puts one powerful lobbyist in the White House and another at Interior, and the two of them get together regularly, no doubt to discuss a shared agenda.
About a week before Bernhardt met with Benedetto, on August 22nd, 2017, Catanzaro meets to discuss the “Minnesota Project” with Principal Deputy Solicitor Daniel Jorjani. Joining them to discuss the reversal is Stephen Vaden, an attorney from USDA. Two days after that, August 24th*, Bernhardt along with other high level Department of Interior officials hosts the CEO Critical Minerals Roundtable, with the CEOs of 16 mining companies. I’m unable to determine who those 16 CEOs were, but minutes from the annual meeting of the Women’s Mining Coalition on September 1, 2017, tell us that Pershing Gold was among the invitees, and the focus of the roundtable was “how to remove barriers to critical minerals, concerted focus at high level to improve permitting conditions.” Was anyone there to talk about removing barriers to mine the Duluth Complex? The CEO of Twin Metals? Polymet? Antofagasta? Glencore? I’ll do a little more poking around to see if I can find out who the CEO attendees were, and if I can’t come up with anything, I suppose I’ll have to file yet another FOIA request.**
Among the documents already produced by Interior, the earliest reference I’ve found to the Twin Metals matter is a February 2, 2017 Information/Briefing Memorandum [page 4390] prepared by Kristin Ball, Acting Director of the Bureau of Land Management, for Katherine MacGregor, who at that time was Assistant Secretary of Land and Minerals Management. (Michael Nedd’s February 7th, 2017 email has been superseded in this regard; and it makes sense that the initiative appears to have come from MacGregor, not from Nedd. The timeline now reflects MacGregor’s role as prime mover.) In her memo, Ball notes that in the Superior National Forest area proposed for withdrawal, there are deposits of “Copper, nickel, palladium, platinum, gold, and silver” and adds, “Deposits contain critical minerals, due to technological applications.” This early memo establishes a theme that will run through Bernhardt’s arrival at Interior and culminate in the December 19, 2017 release of a new list of critical minerals by the United States Geological Service. That comes just three days before the Jorjani M-Opinion is made public. As I noted in an earlier post, emails show political appointee Gary Lawkowski recommending the Office of the Solicitor spin its December 22nd release with talking points about critical minerals.
Bernhardt was next briefed on the Boundary Waters reversal on October 4, 2017. His daily cards show the meeting at 11AM on that day. It was timely. Just one day before, Bernhardt spoke with Representative Tom Emmer, the Minnesota Republican who, along with Rick Nolan and Arizona’s Paul Gosar, has been working steadily to open the Duluth Complex to mining. This phone call now appears on the Twin Metals timeline. What Emmer and Bernhardt discussed is not specified. Gareth Rees was in the meeting, but the 10:30AM call with Emmer does not appear on his calendar [page 192], which on that day starts at 1PM. Curious that he should have omitted or forgotten to note this call with a member of Congress and the Deputy Secretary.
In any case, Bernhardt comes off that call with Emmer on Tuesday and into his Wednesday briefing equipped with three background documents: the widely circulated one page briefing and scenarios papers prepared back in April, and a July 24 BLM paper on the withdrawal. Correspondence shows that Bernhardt asks to see the 1966 and 2004 leases, along with the M-Opinion prepared by Solicitor Tompkins. It’s clear from Karen Hawbecker’s response that the focus of the discussion at this juncture are the renewal terms in the 1966 leases. Hawbecker directs him to them: Section 5, page 8.
Why this focus? Section 5 will be critical to a legal argument Jorjani ultimately makes in his memo, which is that according to the 1966 leases, production — actually getting a mining operation up and running — is not a precondition for renewal: “the commencement of production is…not a condition precedent to the right to a renewal.” This is another argument Jorjani borrows from Antofagasta’s lawyer Seth Waxman; and for Waxman, reading a production requirement into the 1966 leases counts as one of the “overarching errors” in Solicitor Tompkin’s M-Opinion. “Section 5 instead creates a production incentive” (cf. Jorjani page 6). As Representative Alan Lowenthal pointed out in a congressional hearing back in March, this argument may be ingenious, but it flies directly in the face of a 1966 BLM press release specifying a production requirement for renewal.
Regardless, by autumn of 2017, David Bernhardt had been briefed on the Waxman-Jorjani legal strategy. He had coordinated with Catanzaro and the White House and with Republican political operatives. He had hosted mining company CEOs behind closed doors to discuss the disposition of America’s public lands. He was fully on board.
*Bernhardt’s daily cards date this roundtable August 23rd, 2017. But Katharine MacGregor’s calendar (page 24) shows the event on the 24th, and a walk through or rehearsal of the event on the 23rd. I am inclined to trust MacGregor’s calendar over Bernhardt’s sloppily compiled cards. It is entered correctly on another Bernhardt calendar for August, 2017. Why the discrepancy?
**UPDATE, September 5, 2019: Though I have not yet received a response to my April FOIA requests regarding the CEO Critical Minerals Roundtable, another request has turned up a list of attendees. Lydia Dennett’s excellent investigation of the CEO Roundtable for the Project on Government Oversight drew my attention to it. Here is the list of attendees, as of August 18, 2017:
Read other posts about the Boundary Waters reversal here.
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.
Karen Maidlow, Property Analyst, Minerals Management
Michigan Department of Natural Resources (DNR)
P.O. Box 30452
Lansing, MI 48909
Dear Karen Maidlow,
This letter is with regard to land owned by the State of Michigan on the Yellow Dog Plains and next to the Yellow Dog River in Michigamme Township, Marquette County (40 acres, NE1/4 SE1/4, Sec.13, T50N, R29W).
As you know, in a 2003 review, this 40-acre parcel was designated “non-development” by former Fisheries Chief Kelley Smith. Fisheries biologist George Madison, who works out of the Baraga office of the DNR, reversed Smith only this year. It is unclear why, and I urge you to look thoroughly into the matter as part of your review and clarify for the public whether and on what grounds the DNR thinks Fisheries’ reversal of its position on this parcel should stand.
Madison himself says that he was unable to tell why Smith had placed the non-development restriction on the parcel in the first place.
For some reason Kelley Smith (former Fisheries Chief) had placed a non-development restriction recommendation on this parcel during an 8-21-2003 review. Indeed while there is no water or aquatic resources on this parcel, with care and respect for the 2003 review I carried Mr.Smith’s recommendations forward in case there was an element of uniqueness to this parcel that we are not aware of.
For this 8-12-2014 review, I have changed Fisheries Division’s recommendation to “development” with no restrictions.
What reason did Kelley Smith have for restricting development on the parcel? Madison cannot say, and in May of this year Forestry Supervisor Jeff Stampfly admitted he, too, was “at a loss” when it came to accounting for Smith’s review. But then they both recommend its reversal. Both Stampfly and Madison seem to suggest that Smith was simply mistaken, or at least they see his 2003 review as problematic. What exactly did Smith say? Isn’t it possible that Smith discerned some “element of uniqueness” here that Madison and Stampfly are unable to appreciate? The prudent thing would be to find out.
To that end, the DNR should publish Smith’s August 2003 review — undertaken before the mining boom had really gotten underway — and take what Smith says there under advisement. To help clarify things, Smith himself (now in retirement) should be interviewed about the parcel and what, if anything, makes it unique or deserving of non-development status, and his statement entered into the public record. If Smith and Madison still disagree on the status of this parcel, then that disagreement should be aired publicly and accounted for in whatever report you file. The public deserves this measure of transparency.
For his part, Madison could state more clearly why he reversed Smith in this 2014 review and did not do so previously. Why proceed with “care and respect” for Smith’s review, then suddenly change course after Lundin Mining shows interest in the parcel? Madison seems to be arguing in his comment that Fisheries should place no restrictions on the parcel because he can identify “no water or aquatic resources” directly on the parcel; this seems to be Stampfly’s position as well. But the Yellow Dog River is only a few hundred feet away from the boundary of the proposed site. Maybe, for Smith, that proximity was enough.
As Smith may have known, there are a number of ways in which industrial development on this parcel might seriously compromise the Yellow Dog River. Groundwater flow in the glacial aquifer underlying the Yellow Dog Plains would make it difficult to limit water contamination from drilling to the parcel itself. Even a well-run drilling operation will see lapses: Yellow Dog Watershed Preserve has “photo documentation of ripped sump pit liners, drill bit wash basins that are overflowing, and broken fences” from the exploratory drilling done for the Eagle Mine. Exploratory drilling is also bound to require some roadwork and other infrastructure build-up on the Yellow Dog Plains, and it will increase traffic to and from the parcel. That, too, puts the Yellow Dog River at risk.
As you are no doubt aware, just this past summer, a road crew working on the Eagle Mine haul route ruptured a perched groundwater seep, dumping sediment and releasing turbid water into the Salmon Trout River, in violation of the Natural Resources and Environmental Protection Act. Mining’s risks never end at the mine’s gate.
In closing, I urge you to take your time looking into the confusion over Smith’s 2003 review and all other questions and comments you receive regarding this parcel. One newspaper account I read has you saying that you intend to finish your analysis by January, having received written comments from the public only a month before that. Wouldn’t it be better to allow time for follow-up interviews or requests for further information? I trust that you and the DNR do not want to give the impression that this request for public comment is merely pro forma, and want to do the right thing by the public you serve.
Louis V. Galdieri
Here’s my transcript of what I consider one of the more striking moments in the conversation with Steven Pinker and Daniel Dennett moderated by Alex de Waal at the “Unlearning Violence” conference held at Tufts’ Fletcher School in February. (A video of the discussion in its entirety follows.) Daniel Dennett is speaking:
Something’s happened, which is absolutely unprecedented in the history of civilization, which is a major — I think a major change. And yes it’s the internet and electronic communication. But what it has done, it has rendered the epistemological atmosphere in which we live transparent in a way it never was before.
There’s a lovely book — speculative book by Andrew Parker, a zoologist in Oxford, who [in In The Blink Of An Eye: How Vision Sparked The Big Bang Of Evolution], argues, very plausibly, that the cause of the great Cambrian explosion, this huge outpouring of new life, that the trigger for that was the transparency, the sudden, relatively sudden growing transparency of the oceans and the air, making sunlight available and making vision possible for the first time. And it was the immediate evolution of eyes which changed everything, because now predator could see prey, prey could see predator, and if you didn’t have eyes you were sunk. And this set off a five million year arms race of sort of guerilla warfare enhancements, defense and offense, and that’s what created all the remarkably different body types and behavioral types and defense types that mark this great explosion.
Well, he may or may not be right about that, I — I — it’s one of those evolutionary ideas that I am very fond of but I haven’t committed to it because it hasn’t been shown yet. But it’s a plausible and pretty well researched theory. Whether he’s right or wrong, I think something exactly like that has happened now.
All the institutions in human culture, not just religions but armies, governments, banks, relig- uh, corporations, clubs — they have all evolved in a relatively murky epistemological atmosphere where people could be relatively ignorant of things at a distance around the world and even about a lot of their own, the features of their own organizations. And organizations evolved to exploit that ignorance, cause it was — you could rely on it. That ignorance is evaporating at a colossal rate, and we see it, we see it in Edward Snowden. We see it where the security experts are now saying there’s no such thing as a firewall, um, because people, you have to rely on people’s fidelity, because people’s fidelity is infinitely malleable by memes, by all of the information that is floating around in the internet.
Religions: what this new transparency does is, it renders knowledge not just widespread but mutual: it’s not just that everybody knows that p, it’s that everybody knows that everybody knows that p.
Fifty years ago, I’m sure, there were millions of Catholics that knew of a priest who had molested some boys. Millions of them. But nobody knew there were millions of them. Now, millions of Catholics know that millions of Catholics know. And that changes everything. Now, you have a Bishop giving a press conference where he makes a big point of saying you’ll note how I never, whenever there’s a young boy around I’ll always have my hands in front of me. Can you imagine a bishop of the church saying anything like that fifty years ago?
This is an awkward and gauche and ineffective response to the new transparency. Well I think that in itself is going to force every institution in the world to evolve very quickly or go extinct.
And what that does for violence is — it’s not clear. In some ways it may be a great diminution in violence; on the other hand it may unleash forces that we don’t even imagine yet, and make new inroads into violence more likely.
The phrase “human rights” is nowhere to be found in the Oyu Tolgoi Investment Agreement, a document [pdf] that will play a critical role in guiding Mongolia’s development over the next decade. The Agreement sets the terms for the $6.2 billion investment in the Oyu Tolgoi gold and copper mining project, which promises to account for no less than one-third of Mongolia’s GDP by the year 2020. Rio Tinto has a 66 percent stake in the project through its subsidiary, Turquoise Hill Resources Ltd; the Mongolian government owns the rest.
Along with the serious environmental concerns cited by the United States when it abstained, in February of this year, from a World Bank investment scheme in Oyu Tolgoi, there are a host of human rights issues to address — from migrancy to land seizures, rights to the scarce water resources of the Gobi desert region, conditions in Ulaanbaatar’s Ger camps, and the survival of Mongolia’s herder communities. (The Bank Information Center provides an overview of these concerns, here and here.) The Investment Agreement briefly addresses some of these points, but it resorts, in all instances, to what I would call the language of corporate benevolence.
So the Investor agrees to abide by the Extractive Industries Transparency Initiative (a voluntary agreement to publish payments made by the Oyu Tolgoi mine to the government); in another place (section 4.13; but cf. also section 4.6) the Investor consents to “build and maintain productive working relationships, based on principles of transparency, accountability, accuracy, trust, respect and mutual interests, with non-governmental organizations, civic groups, civil councils and other stakeholders.” Beyond this, there is not much else to guide or govern the company’s conduct vis a vis civil society and its responsibility to respect human rights.
Given the high stakes, the scale of Oyu Tolgoi and the involvement of the World Bank and IFC in the project, it is surprising the Agreement does not explicitly incorporate — or reference — the UN Guiding Principles on Business and Human Rights. Instead of creating binding agreements or even practical mechanisms to ensure that Oyu Tolgoi and the government of Mongolia meet their respective human rights obligations as the economy accelerates and the social terrain continues to shift, the Investment Agreement relies on the language of corporate social responsibility to smooth things over.
Part of the trouble with CSR isn’t just that it tends to replace binding agreements and articulated responsibilities with vague sentiments, the language of corporate benevolence, and promises of sustainability and shared prosperity. That’s bound to happen when social responsibility meets public relations. A bigger problem is that the commitments companies voluntarily make to contribute to economic development and social progress — and to respect human rights — will last only as long as the business requires them.
For an example of how abruptly a company can ditch stakeholder communities, what happened in Michigan yesterday with another Rio Tinto project may turn out to be more instructive than what’s happening right now in Mongolia. In the face of serious environmental and human rights challenges to its Eagle Mine project over the last several years, Rio Tinto all along touted its good corporate citizenship, promising to “leave more wood on the woodpile” and to take an active hand in the long term, “sustainable development” of the Upper Peninsula. That is just part of “The Way We Work,” as the title of a Rio Tinto CSR publication would have it — or at least it was the Way We Worked. Yesterday, the company announced that it had sold the Eagle Mine project to Toronto-based Lundin Mining for the tidy sum of $325 million cash — part of CEO Sam Walsh’s strategy to divest from “non-core” assets and protect the single-A credit rating the company currently enjoys. A community of stakeholders whose future Rio Tinto promised to make happy, bright and prosperous became, overnight, a disposable asset.
For now, this can be only a short postscript to what I had to say earlier today about the CNN Money article by John Hagel and John Seely-Brown on “the hardware revolution.” It has to do with a question that occurred to me as I read, and to which I don’t yet have anything like an adequate answer. That will take some research. But I at least want to articulate the question.
Startups and smaller companies can now play in the hardware space in part because the barriers to entry have been lowered, Hagel and Seely-Brown observe. There are a number of factors at work here. New and cheaper technologies from 3D printers to more user-friendly software put the design and manufacture of hardware within reach of smaller companies. And “a new class of factories” will produce the smaller orders that new entrants and entrepreneurs typically require:
New infrastructural elements have also helped new hardware products move from the hobbyist’s basement to the startup garage. Before, to get a contract manufacturer’s attention, you had to commit to producing high volumes (say 50,000 or more units). But a new class of factories — mostly in China and Mexico — will manufacture batches as small as 5,000 units. By filling low-volume orders, these factories have filled an important structural hole in the market: They allow entrepreneurs to launch new products for small consumer groups with little investment.
My question is whether conditions and, for that matter, sourcing practices in this new class of factories, and the more fluid hardware market they serve, are not going to be terribly difficult to monitor. We’ve seen how challenging it is even to ensure fair labor practices in large-scale manufacturing facilities in China used by major global technology brands; now, as smaller-scale manufacturing facilities proliferate and Mexico becomes a technology “quicksourcing” destination for American companies, the problem will no doubt be aggravated.
The reasons for this are probably obvious. I would frame the issue in a few ways. First, how much visibility do these smaller players actually have into their supply chains? Second, how much leverage do they actually have with their manufacturers, since they are only placing small orders, and, depending on their success, may or may not be repeat customers? Third, there’s a question about whether these small businesses — the small hardware startups placing orders and, for that matter, the manufacturing facilities taking them — have the capacity to take on the human rights challenges that seem inevitably to accompany outsourcing.
In other words, the social costs of the hardware revolution deserve some careful consideration.