Tag Archives: Twin Metals Minnesota

David Bernhardt’s Briefings on the Boundary Waters Reversal

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:

***UPDATE, April 21, 2020. Those first items on Bernhardt’s October 4, 2017 calendar — departure for Trump Hotel, remarks at NMA Board of Directors Meeting — are the subject of an October 5, 2017 report in the Washington Post. On the same day he received his scheduled briefing, Bernhardt opened the National Mining Association Board of Directors meeting at Trump International Hotel. After suing under FOIA, Citizens for Responsibility and Ethics in Washington obtained a copy of Bernhardt’s remarks. He praised the Trump Hotel, promised that he and Zinke would be “relentless in trying to minimize regulatory and permitting uncertainty,” and criticized “proposed withdrawals” by the Obama administration: “nothing short of uninformed, arbitrary, and frankly senseless. They might have made great press, but to do so they had to ignore the facts of their own experts in the record.” According to the Post report, “Commerce Secretary Wilbur Ross headlined a general session,” and “in the afternoon, Labor Secretary Alexander Acosta spoke with NMA members during a lunch.” CREW notes that Energy Secretary Rick Perry attended as well. A footnote in Andrea Bernstein’s American Oligarchs: The Kushners, the Trumps, and the Marriage of Money and Power pointed me to the article.

Update, 11 May 2020. Today in response to a FOIA request filed on April 15, 2019, I received a list of the Interior Department attendees at the August 2017 CEO Critical Minerals Roundtable. (The names of corporate attendees had already been released; see the Sept. 5 update to this post.)

Note especially the participation of Murray Hitzman, who would resign in protest along with Larry Meinert after Ryan Zinke pressured them to share sensitive information about energy potential within the National Petroleum Reserve-Alaska prior to official publication. Hitzman is the distinguished scientist at the Roundtable. His resignation serves as a reminder of just how politicized and how disrespectful of scientific authority Interior has become under the current administration.

Update 18 May 2020. The indefatigable Jimmy Tobias has obtained yet another list of CEO attendees at the Critical Minerals Roundtable. This adds a few new names to the list: Niocorp Developments; Doyon, Ltd; and Rare Earth Resources.

Read other posts about the Boundary Waters reversal here.

The Architect of the Boundary Waters Reversal

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“Extrinsic evidence” from the 1980s: one of the files from the Milwaukee District Office of the Bureau of Land Management appended to Waxman’s 2016 letter to Hilary Tompkins.

Principal Deputy Solicitor Daniel Jorjani signed the December 2017 Department of Interior memo that re-opened the door to sulfide mining near the Boundary Waters, but he probably should not be considered the legal architect of the Boundary Waters reversal. That dubious honor appears to belong to Seth P. Waxman. Or at least the key arguments in Jorjani’s memo seem to be largely derived from a letter Waxman wrote on behalf of Twin Metals to Department of Interior Solicitor Hilary Tompkins back in July of 2016.

Waxman’s name may ring a bell. He has had a distinguished legal and political career. Under President Clinton, he served as Solicitor General of the United States. In the last year of the Bush administration, he made oral arguments before the Supreme Court in Boumedienne v. Bush, to uphold habeas corpus rights for Guantanamo detainees. During the Obama years, his name was even floated as a Supreme Court nominee. Waxman is also a partner at WilmerHale, the powerful DC firm that has led both the lobbying and litigation efforts for Antofagasta, Plc in its bid to renew its mineral leases in Superior National Forest.

Waxman sent his 24 page letter to Hilary Tompkins on July 1, 2016. On the same day, he sent a letter to Secretary of Interior Sally Jewell. Those letters are included among Department of Interior documents obtained through FOIA. The letter to Tompkins appears to have been the most widely shared. It was attached to an April 27, 2017 email from Raya B. Treiser of WilmerHale to Cathy Gulac, secretary to James Cason, confirming a May 2nd meeting with Antofagasta CEO Ivan Arriagada at Interior. You can follow it from there as it gets attached to other email exchanges and forwarded around.

A handoff from Interior’s Jack Haugrud to a political appointee: Gary Lawkowski, Counselor to the Solicitor. Attached is Seth P. Waxman’s 2016 letter to Solicitor Tompkins.

Waxman’s argument in the letter to Solicitor Tompkins is that Twin Metals has a non-discretionary right to renewal, as dictated by the terms of the leases negotiated by the International Nickel Company and the Bureau of Land Management back in 1966. This is also the conclusion at which Jorjani arrives, and he appears to do so by carefully following Waxman’s lead. Here, I’m going to highlight several places where Waxman’s influence on Jorjani seems undeniable. (To make it easier for others to follow along, I’ve posted the Waxman letter. Jorjani’s memo can be found here.)

To the layman — and I am one, so anything I say here should probably be read in light of that — the very idea of a non-discretionary right to renewal might seem paradoxical, or at least puzzling. Apparently the federal government, and specifically BLM, can “grant” and has twice granted (in 1989 and 2004) the renewal of these mineral leases, but it has no discretion to deny renewal (as long as the company complies with the law). Hobbled, BLM can say yes but not no. Waxman’s argument easily and cleverly explains why this is so. The terms of the 1966 lease, he says, are both “comprehensive” and “unique”, and those unique terms still “govern” (to use the phrase Jorjani prefers) or (in Waxman’s words) “control”:

One of those terms is a right to renew the lease (in fact, to successive renewals). This right is critical to the parties’ overall bargain: The investment required of the lessee under the leases is enormous. But because of recognized operational problems in the area, producing minerals in the short term would have been impossible. The leases thus would serve no rational purpose absent a non-discretionary right to renew; no company would undertake the necessary investment for exploration and development knowing that it could be unilaterally deprived of any ability to recoup that investment. (p. 1)

Of course, it’s possible to think of a rational purpose mineral leases could “thus” serve absent a non-discretionary right to renew. The leases might afford the company an opportunity to explore a mineral resource on public lands within a specified period of time and on certain terms, assess the feasibility of developing the resource, and provide a right to negotiate successive renewals. We can easily imagine circumstances in which the federal government might reserve discretion, and renewal might be contingent on all kinds of things, like changes in environmental conditions, advances in scientific knowledge, evidence of responsible stewardship, or commensurability with other rights. That all sounds perfectly reasonable. There’s no need to insist that a “non-discretionary right” is the only appropriate arrangement, or buy into the view that preserving discretion over renewal confers on government the power to “unilaterally [deprive]” the company of “any ability.”

This is lawyer’s hyperbole, affecting sobriety and marking out an extreme position: the only “rational” course appears to be one that protects the investment of the mining company, from exploration through development. Having entered into a lease agreement with a mining concern, the federal government is now bound to help the company realize a return on its investment. And that would require going way beyond providing incentives. Surrendering all discretion, the government defers entirely to private interests and agrees to relieve the mining company of business risk.

This Extractive Industry First approach is perfectly congruent with Trumpism and its doctrine of Energy Dominance. We see it reflected not just in the Jorjani memo but in some of the changes Ryan Zinke and David Bernhardt brought to the Department of Interior. Perhaps Mr. Waxman is a man ahead of his time — by about a year, it seems. But let’s grant, for the moment, Waxman’s position that this non-discretionary right is indeed the “unique” arrangement the 1966 leases set out, and focus instead on the area where Jorjani’s memo relies most heavily on Waxman: in reaching the conclusion that the 1966 leases “govern.” Here is Jorjani’s brief restatement of Waxman’s argument:

Twin Metals is entitled to a third renewal. First, the renewal terms of the 2004 lease form do not govern. The form is ambiguous, and the intent of the parties to keep operative the terms of the 1966 leases becomes clear once the BLM’s decision files are examined. (p. 8)

Jorjani adds in a footnote (number 38) that Solicitor Tompkins’ memo did not examine this “extrinsic evidence” — 1980s decision files from the BLM’s Milwaukee office, which Waxman attached as exhibits to his letter to Hillary Tomkins — “because of its underlying premise that the 2004 lease forms were unambiguous.” This, too, echoes Waxman, and builds on an argument about ambiguity and how to resolve it that Waxman sets out repeatedly in his 2016 letter to Tompkins: “Because the renewal provision in the 2004 standard forms is ambiguous,” he writes, “extrinsic evidence [namely, the 1989 BLM decision files] must be considered” (pp. 22-3). Jorjani returns to the theme several times: “the meaning of the 2004 leases is ambiguous” (p. 11), but those Milwaukee files from the 1980s clear everything up.

Waxman discusses what should be done in such cases of ambiguity: “Where a provision in a contract is ambiguous, courts resort to extrinsic evidence to resolve the ambiguity by ‘determin[ing] the intent and meaning of the parties” (p. 23). Jorjani is on exactly the same page: “where contract terms are unclear or ambiguous, an examination of extrinsic evidence is appropriate to properly interpret the contract in accordance with the parties’ intent” (p. 10). Waxman maintains that “extrinsic evidence must be considered, and it confirms that the parties’ intent in executing the 2004 forms was to re-confirm that Twin Metals has a non-discretionary right to renew” (p. 3). Jorjani, too, discovers the “intent” of the 1966 parties in the 1989 files:

…the meaning of the 2004 leases is ambiguous. Given this ambiguity, extrinsic evidence beyond the ‘four corners’ of the document may be considered to ascertain the intent of the contracting parties. Examining the decision files of the BLM resolves the ambiguity. The record shows that the BLM renewed the leases in 1989 under the same terms as the 1966 leases, and did so again in 2004. (p. 11)

Though both Jorjani and Waxman seize on the same Milwaukee documents to prove intent, neither entertains the possibility that there might be other extrinsic evidence to consider in this case — to illuminate historical context, help clarify why the Milwaukee office took the actions it did in 1989, or throw into relief the different economic and environmental conditions, or different assumptions about public lands and private industry, that obtain in 1966, 1989, 2004, or for that matter now. This isn’t a historical inquiry, after all: it is, instead, a search for proof of intent that will shore up the mining company’s claim. It’s just a little unsettling to see the vast resources of the Department of Interior being marshaled to that purpose, following the lead of Antofagasta’s counsel.

Let’s go back, once more, to this issue of ambiguity. One of the main reasons why the 2004 leases are ambiguous — and why the 1966 leases control, and why the Milwaukee documents are necessary in the first place — is that the 2004 leases lack what is known as an integration clause. A written contract is “integrated” when the parties consider it to constitute their full and complete agreement. Or, as a Jorjani footnote (49) explains, “Integration clauses, also known as merger clauses, are contract provisions that generally state that the agreement as written constitutes the entire agreement between the parties and supersedes any prior representations.” Jorjani cites Corbin on Contracts for his authority; Waxman, Williston on Contracts: the standard lease forms used in 2004 do not “supersede or annul” the 1966 leases (Waxman, p. 11).

As Waxman states at the outset of his letter, this lack of an integration clause is a point Solicitor Tompkins does not “acknowledge” in her M-Opinion (p. 2). Both Waxman and Jorjanil will go to town on this point.

Waxman:

the Opinion asserts (p.6) that the 2004 standard forms are “complete, integrated documents,” and thus their renewal provision governs the analysis here. In making this assertion, the Opinion does not acknowledge the lack of any integration clause in the 2004 standard forms. (p. 7)

And again:

…the 1966 leases control. The Opinion’s contrary view depends on its assertion (p.6) that the 2004 forms are “integrated” contracts. But they are not; the 2004 forms lack any integration clause (a point the Opinion does not acknowledge), and there is no other basis on which to conclude that the 2004 forms— divorced from the 1966 leases that the parties attached—were integrated contracts. In light of this, the Opinion’s refusal to consider extrinsic evidence conflicts with established law. (p. 2)

Jorjani picks up on the same phrase (“complete, integrated documents”) in Tompkins’ Opinion, and appears to paraphrase Waxman:

Rather than being “complete, integrated documents,” the leases attach without full explanation the entirety of the 1966 leases and do not include an integration clause that states that the 2004 lease forms are the complete expression of the parties’ agreement. These facts alone warrant an examination of extrinsic evidence to determine the intent of the parties. (p. 10)

Here, in a footnote (number 50), Jorjani cites a 1999 Second Circuit case Waxman uses in his letter (p. 9): Starter Corp. v. Converse, Inc.. “When a contract lacks an express integration clause [courts] must ‘determine whether the parties intended their agreement to be an integrated contract by reading the writing in light of the surrounding circumstances.” That’s Waxman. Jorjani cites the exact same sentence, using brackets, as Waxman does, to substitute “courts” for “district court” in the original text, and putting the word “must” in italics for emphasis.

jorjaninote50

That two knowledgeable lawyers are appealing to the same legal precedents might not be all that surprising. But it seems pretty clear that this citation, too, is part of a disconcerting pattern.

None of this goes directly to the question of legal merits, or which reading of the Twin Metals leases should or eventually will prevail. Yet something here is seriously amiss. The blueprint followed by the Principal Deputy Solicitor at the Department of Interior to reverse protections for the Boundary Waters appears to have first been drawn by the attorney for a Chilean mining conglomerate. That should raise some questions about ethical conduct, about revolving door access and undue influence, and about whether the opinion Jorjani released in December of 2017 should be allowed to stand.

You can read other posts on the Boundary Waters Reversal here.

A New Set of Boundary Waters Documents

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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.

Sonny Perdue “Broke His Word” on the Boundary Waters

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Representative Betty McCollum said last week that Secretary of Agriculture Sonny Perdue had broken his word and betrayed his responsibility to care for public lands.

She made these remarks in response to Perdue’s cancellation of the two-year environmental review of the mining withdrawal of Forest Service lands adjacent to the Boundary Waters.

McCollum called out this exchange with Perdue on May 25, 2017.

(A transcript of the exchange may be found here).

It’s interesting, and in hindsight it’s perhaps telling, that Perdue answers before US Forest Service Chief Tom Tidwell can. Just about five months earlier, in December of 2016, Tidwell had stated unequivocally that allowing the Twin Metals mine would likely result in acid mine drainage to the Boundary Waters and the surrounding watershed — “an unacceptable risk.” But before Tidwell has a chance to answer — and presumably walk the committee through these findings — his new boss takes it upon himself to respond.

Perdue right away reassures McCollum and other members of the House Appropriations Interior Subcommittee that he and Interior Secretary Ryan Zinke had “already met about this,” and they had agreed that “none of us, I’m not smart enough to know what to do without the facts base and the sound science, and we are absolutely allowing [the study] to proceed.” But despite this pledge, his posturing before the committee (“the buck stops here”), and his invocation of the “Hippocratic oath: first of all, do no harm,”

Secretary Perdue broke his word, bending to political pressure from a foreign mining company and abandoning sound science to give a green light to toxic sulfide-ore mining in the watershed that feeds the BWCA. Like the President he serves, Sec. Perdue’s word cannot be trusted.

McCollum’s statement continues:

The Trump Administration’s abandonment of the Rainy River Watershed mining withdrawal study is a politically-motivated and callous betrayal of their responsibility to care for our public lands. It completely disregards the scientific evidence that sulfide-ore mining in the watershed will cause irreparable harm to the pristine wilderness of the Boundary Waters. The Trump Administration is eliminating sound science from the equation in order to ram through a destructive giveaway to their friends at a foreign-owned mining corporation.

McCollum understood back in 2017 that Perdue was “receiving pressure from the mining industry.” Along with the Department of the Interior, the Executive Office of the President, and members of the House and Senate, the new Secretary of Agriculture was already being lobbied on the Twin Metals mineral leases. Lobbying reports filed by WilmerHale indicate that an inter-agency, full court press was already underway as early as the first quarter of 2017, even earlier than agency calendars or the timeline I have put together from them indicate.

So it’s hard to credit Perdue’s representations to the House committee in May of 2017 that when he and Zinke met to discuss the Twin Metals mineral leases, they agreed that they were not the smartest guys in the room, and they should wait to have all the facts before rushing headlong into any decisions. It now appears their minds were already being made up for them.

Postscript. 15 September 2018. Some notes on the Zinke-Perdue meeting in this Twitter thread.

As the timeline (https://t.co/ReaAeQY2po ) shows, this meeting comes just two days after Antofagasta plc comes to the Department of Interior to discuss their mining leases in Superior National Forest.

— Louis V. Galdieri (@lvgaldieri) September 15, 2018

Another Look at the Twin Metals Timeline

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Rees20170502Antofagasta In response to a FOIA request I made back in April, the Department of the Interior has released Gareth Rees’ 2017 work calendar. Rees has served as Executive Assistant to the Deputy Secretary of the Department of the Interior since George W. Bush’s first term. He did not arrive with the so-called “beachhead” teams brought in by the current administration with the express mission of sabotaging and dismantling the government agencies entrusted to their care. Still, his calendar (which I’ve put up here, on DocumentCloud) adds more pieces to the puzzle.

Rees’ calendar drew my attention to a couple of meetings I hadn’t noticed before and which are now represented on the timeline. There is a June 15, 2017 meeting at Interior with a group called Jobs for Minnesotans — a front for the building trades that is currently lobbying for both the Twin Metals project near the Boundary waters and the Polymet project to the south, near Hoyt Lakes. Jobs for Minnesotans is a 501c4 “social welfare” or dark money organization of the kind I’ve written about in connection with mining projects in Michigan and Wisconsin. As a 2016 Pro Publica report suggests, these organizations are designed for those who prefer backroom deals to sunlight. 501c4s like Jobs for Minnesotans are used to channel money from private interests into public process, and coordinate localized efforts to remove environmental protections and undo regulation through regional and national networks.

A May 2, 2017 meeting with Antofagasta plc has also been added to the timeline. This meeting brought together representatives of the Chilean conglomerate with a large group of officials at the Department of the Interior just one month after Interior appears to have taken up the matter. Apparently meeting with Antofagasta was a priority. The company’s subsidiaries Twin Metals Minnesota and Franconia Minerals had sued the Department of Interior in February of 2017. The complaint makes the mining companies’ position abundantly clear. And yet administration officials seem to have been anxious to sit down with the Chilean parent company and discuss its leases. Why? (It’s not likely that the same courtesy will be extended to the ten Minnesota plaintiffs now complaining that in reinstating Antofagasta’s leases the Department of Interior exceeded its lawful authority and acted in an arbitrary and capricious way.)

The first meeting with Antofagasta, in early May, appears to have set the agenda; the second meeting with Antofagasta, on July 25th, looks as if it were called to reach an agreement. The July meeting with Antofagasta includes all Interior officials present at the May 2nd meeting as well as some important decision makers: Deputy Solicitor Daniel Jorjani, Acting Director of the Bureau of Land Management Michael Nedd, and Edward Passarelli, Deputy Chief at the Natural Resources Section of the Department of Justice.

It is difficult to avoid the conclusion that the Department of Interior worked steadily and closely behind closed doors with lobbyists and mining executives to renew Antofagasta’s mineral leases in Superior National Forest. This would conform to the general pattern at Interior under Zinke’s leadership. “A deeply problematic culture of secrecy…has taken root in the Department of the Interior,” the organization Earthjustice charges, “keeping the American public in the dark about major decisions, important records, and meetings with industry that affect the lands and resources the agency holds in trust for the American people.”

In this case, the mining company ran a full court press; the public was kept almost entirely out of the process. The deed appears to have been done well before the end of summer 2017. The legal review that would result in the Jorjani Memo of December 22nd appears to have been nothing more than an exercise in a foregone conclusion — a sham.

McCollum Questions Zinke on the Boundary Waters Reversal

What Scott Pruitt’s Troubles Tell Us About Corruption in Kalorama

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I looked on Trivago. The cheapest room in Washington is a youth hostel with bunkbeds at $81 a night. The $50 room Scott Pruitt got was a bribe from an energy lobbyist. Need your pipeline approved? Do it through Pruitt! pic.twitter.com/DaSdgvFPmv

— Jim Carrey (@JimCarrey) April 5, 2018

It’s tempting to draw parallels between the situation at 2449 Tracy Place NW, where Jared Kushner and Ivanka Trump rent a mansion owned by Chilean mining billionaire Andronico Luksic Craig, and Scott Pruitt’s sweetheart deal to rent a bedroom in a Washington DC condo owned by the wife of powerful lobbyist Steven Hart, chairman of Williams & Jensen, for fifty dollars a night. But that will not get us very far, and it’s best not to conflate the two cases.

To begin with, Jared and Ivanka are reportedly paying market rate for their place: $15,000 / month. While no one, to my knowledge, has seen records of those monthly payments in the form of cancelled checks or electronic transfer receipts, it seems pretty safe to assume that rent is actually being collected. Doesn’t it? The corporation that owns the property, Tracy DC Real Estate, Inc., was formed by Luksic’s lawyers at Duane Morris LLP in Boston, and the deal was put together by one of the Washington DC’s “top-producing” real estate agents: Cynthia Howar, who is herself a member of the bar. The lawyers, one would like to think, took care of the details.

Not so in Scott Pruitt’s case. Despite the friendly terms, Pruitt fell behind on his rental payments, according to Politico, “forcing his lobbyist landlord to pester him for payment.” Pruitt’s landlord, Vicki Hart, did not have the appropriate business license to rent out a room in her Washington, DC condo, and now faces fines of up to $2000.

In Kalorama, Tracy DC Real Estate, Inc. had obtained the business license for a one family rental from the Department of Consumer and Regulatory Affairs in the District of Columbia by March of 2017. That license is good for two years, until February 28, 2019. Who can say where the first family tenants will be by then?

Of course, there is one important parallel to draw between the Pruitt case and the situation at Tracy Place. It doesn’t have to do with licenses or rental agreements or payments. It has to do with ethics — or an apparent lack of concern with ethics.

Scott Pruitt rushed an ethics review of his bedroom rental only after news stories about the deal started to appear. The review was botched, or its conclusions were forced; it’s unclear which. The EPA’s top ethics official now says he needs to revisit the matter, because he was not in full possession of the facts when he retroactively approved the arrangement. This only serves to highlight that the right time for Scott Pruitt to ask whether the rental was permissible or appropriate was before entering into it.

Much the same could be said of Jared and Ivanka’s rental of the Kalorama mansion: the lawyers may have left nothing undone, but there is still the question whether this rental agreement ought to have been struck in the first place, given the fact that the mansion’s owner — or the mining conglomerate his family controls — was suing the U.S. government over the renewal of mining leases.

Twin Metals Minnesota had already sued the United States government back in September of 2016 over lack of action on the Superior National Forest leases. When the Obama administration did act in December of 2016, denying renewal of the leases, and launching a study of a 20-year ban on sulfide mining near the Boundary Waters, it was clear Twin Metals would sue again.

This second suit was filed by Antofagasta’s subsidiaries, Twin Metals Minnesota and Franconia Minerals, on February 21, 2017, just about a week before Tracy DC Real Estate obtained its license to rent the Kalorama mansion as a one family unit. A review of the rental agreement should obviously have been undertaken by the Office of the White House Counsel, with these and other facts in view, if only to preempt scandal-mongering and dispel any appearance of impropriety.

One of the earliest reports of the rental agreement in the Wall Street Journal quotes Rob Walker, a lawyer in private practice who specializes in election law and government ethics, to the effect that “there might not be an ethics problem” as long as the mansion is being rented at fair market value. Maybe not. But I’ve been unable to find any indication that a formal ethics review of the Kalorama rental agreement was ever requested or conducted.

Twin Metals At Interior – A Timeline

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March 8, 2016	Department of Interior Solicitor Hilary Tompkins issues an ‘M Opinion’ providing the Forest Service and Bureau of Land Management discretion to grant or deny Twin Metals Minnesota lease renewal application.
July 1, 2016	Seth P. Waxman of Wilmer Hale writes to Solicitor Tompkins on behalf of Twin Metals, arguing that her Opinion was arrived at erroneously and should be withdrawn. (For more on Waxman’s letter, see this post.)
September 12, 2016	Antofagasta subsidiaries Twin Metals Minnesota and Franconia Minerals file a complaint in the U.S. District Court of Minnesota, asserting the non-discretionary “right to successive renewals” of mineral leases in Superior National Forest.
December 14, 2016	US Forest Service Chief Tom Tidwell issues a decision that the Forest Service will not consent to renewal of the Twin Metals mineral leases in Superior National Forest.
December 15, 2016	After the Forest Service notifies the Bureau of Land Management that it does not consent to the renewal of Twin Metals mineral leases in Superior National Forest, the Obama administration releases Memo M-37036, denying renewal of Twin Metals leases. Tracy DC Real Estate, Inc. formed in DC by Luksic’s lawyers.
December 22, 2016	Tracy DC Real Estate Inc. purchases the Kalorama Triangle mansion at 2449 Tracy Pl NW. [For this part of the story, see this post.]
January 3, 2017	First news reports that Ivanka Trump and Jared Kushner are moving into the Kalorama mansion.
January 4, 2017	Official sale date entered for the Kalorama mansion.
January 20, 2017	Reince Priebus issues the Memorandum for the Heads of Executive Departments and Agencies.
January 25, 2017	Staff at Interior meet to discuss a correction to the Federal Register regarding the proposed two-year Superior National Forest mineral withdrawal.
January 27, 2017	Daniel Jorjani forwards a memo on the Federal Register correction to Katharine MacGregor and Kathleen Benedetto: “FYI re Twin Metals”
January 30, 2017	Acting BLM Director Jerome Perez forwards a list of proposed segregations and withdrawals in response to Katharine MacGregor’s request, “last week.”
February 2, 2017	Kristin Ball, Acting Director of the Bureau of Land Management, prepares an Information/Briefing Memorandum for Katherine MacGregor, Assistant Secretary of Land and Minerals Management. Subject: Application for Withdrawal, Superior National Forest, Minnesota
February 7, 2017	Michael Nedd of the Bureau of Land Management forwards a briefing paper “previously used to brief the DOI leadership” to staff; cc: Karen Hawbecker and Aaron G. Moody in the office of the Solicitor; “as discussed, we would appreciate you all working together to come up with an updated BP with respect to Withdrawal options.”
February 9, 2017	email, Karen Hawbecker to Jack Haugrud, includes a “briefing paper to introduce the topic of the Twin Metals litigation to the SOL transition team.” A paper prepared by Elena Fink of the Bureau of Land Management “options for addressing the withdrawal in Superior National Forest” begins to circulate: forwarded by Karen Mouritsen to Karen Hawbecker. Another email from Aaron G. Moody to Jack Haugrud recommends that Interior “work off of” the BLM paper.
February 21, 2017	Antofagasta subsidiaries Twin Metals Minnesota and Franconia Minerals file a Supplemental and Amended Complaint against the Department of Interior, Bureau of Land Management, Department of Agriculture, and US Forest Service charging that the Solicitor’s M-Opinion, the Forest Service’s denial of consent, and the BLM’s denial of renewal were arbitrary, capricious, and contrary to law, and inflict “far-reaching” harms.
February 22, 2017	A “fire drill”: the Assistant Secretary for Land and Minerals Management has asked the Bureau of Land Management “for a brief ‘nutshell’ on the Twin Metals/Superior National Forest matter that can be given to the soon-to-be-confirmed Secretary [Ryan Zinke].” The paper will be included in Zinke’s briefing book.
February 28, 2017	Tracy DC Real Estate obtains business license for the rental at 2449 Tracy Pl. NW. The license expires on 28 February 2019. [update, 5 March 2019: it appears to have expired. For this aspect of the story, see this post.]
March 7, 2017	Associate Deputy Secretary of the Department of Interior Jim Cason meets with Acting Director of the Bureau of Land Management Kristin Bail “and one of the issues they will discuss is the Superior NF withdrawal,” according to a March 6, 2017 email from BLM’s Bev Winston to DOI’s Karen Hawbecker. Winston asks specifically whether Hawbecker’s staff has “prepared anything on BLM’s options with regard to stopping the withdrawal process?”
April 6, 2017	Kathleen Benedetto: Ext. Meeting Boundary Waters [with?].
April 10, 2017	On the calendar of Michael Nedd, Acting Director of BLM: “Mining in Minnesota.” Also on the calendar of Daniel Jorjani. Other attendees: Joshua Hanson, Briana Collier, Yolando Mack-Thompson, Karen Mouritsen, Alfred Elser, Ruthie Jefferson, Timothy Spisak, Marshall Critchfield, Linda Thurn, Lonny Bagley, Jerome Perez, BLM-WO MIB RM5653 Conference Room, Jeff Brune, Mitchell Leverette, Downey Magallanes, Aaron Moody, Shannon Stewart, Karen Hawbecker, Kathleen Benedetto
April 17, 2017	Antofagasta Plc CEO Ivan Arriagada sends a letter to Secretary Ryan Zinke. “Due to decisions made in the last days of the Obama administration,” he writes, “our past and future investment” — which he values at $400 million — “now hangs in the balance.” He hopes “to discuss a viable path forward” with Zinke, and requests an in-person meeting in Washington, DC, on either May 2nd or 3rd. “Rob Lehman at Wilmer Hale will be handling the scheduling of my meetings.”
April 18, 2017	Benedetto: Ext. Mtg. Twin Metals [with? Cf. Friday 16 June].
April 19, 2017	Benedetto: Twin Metals. On the calendar of Karen Hawbecker, Associate Solicitor, Dept. of Interior.
April 20, 2017	“April XX” draft of Information Memorandum for Secretary Ryan Zinke, outlining “”a set of options for reversing” BLM’s decision on Twin Metals, prepared by the Office of the Solicitor. (On the “XX” in the date of this draft, see this post.)
April 21, 2017	email from Karen Hawbecker to Jack Haugrud: Twin Metals “options” paper requesting feedback, “to make sure you’re ok with the approach we’ve taken.”
April 24, 2017	On the calendar of Katharine MacGregor, Principal Deputy Assistant Secretary for Land and Minerals Management. Meeting with Timothy G. Martin of Wilmer Hale, on behalf of Twin Metals Minnesota. MacGregor has a call with Jorjani scheduled immediately after this meeting.
April 25, 2017	Kathleen Benedetto forwards a briefing memo [scroll down to page 182] on Twin Metals for Secretary Ryan Zinke’s 26 April meeting with Representatives Tom Emmer and Richard Nolan.
April 26, 2017	On the calendar of Interior Secretary Ryan Zinke: meeting with Representative Tom Emmer (R-MN, 6th District) and Landon Zinda, legislative council; Representative Rick Nolan (DFL-MN, 6th District) and Will Mitchell, Legislative Director. A briefing by Kathy Benedetto and Kate MacGregor of the Department of Interior on the Twin Metals Leases.
April 26, 2017	Briana Collier, an attorney in the Division of Mineral Resources, forwards a briefing paper prepared for the State Department “ahead of an upcoming meeting this week between Antofagasta CEO Ivan Arriagada and the U.S. Ambassador to Chile,” Carol Z. Perez.
April 27, 2017	Raya Treiser of WilmerHale emails Catherine Gulac at the Department of Interior confirming a May 2nd meeting between Deputy Secretary James Cason and Antofagasta CEO Ivan Arriagada. The email includes “background materials”: a March 22, 2017 letter from WilmerHale’s Rob Lehman to Ryan Zinke; a July 1, 2016 letter from WilmerHale’s Seth Waxman to former Secretary of Interior Sally Jewel; and the July 1, 2016 Waxman letter to Solicitor Tompkins.
April 28, 2017	Benedetto Meeting with Rob Lehman, WilmerHale re: Twin Metals Minnesota. On the calendar of Gareth Rees, Executive Assistant at US Department of the Interior. There is also an entry for the same 11AM meeting with Lehman on the Deputy Secretary Conference Room calendar. Created by Deputy Secretary Catherine Gulac.
April 28 2017	Benedetto: Twin Metals briefing. On the calendar of Briana Collier. U.S. Department of the Interior, Office of the Solicitor. An email from Karen Hawbecker to Jack Haugrud on April 27 specifies the purpose of this meeting: “to get some feedback from [Benedetto] on the options we’ve identified for reversing action on the Twin Metals decision.”
April 29 2017	On the calendar of Katharine MacGregor: Meeting with Rob Lehman, WilmerHale re: Twin Metals Minneosta.
May 2, 2017	On the calendar of Gareth Rees: Meeting with Antofagasta plc re: Twin Metals Minnesota Project. Included in this meeting: Gareth Rees, James Cason, Katharine MacGregor, Michael Anderson, Kathleen Benedetto, [Linda Thurn], Richard Cardinale, Tracie Lassiter, Kevin Haugrud, Mariagrazia Caminiti, Karen Hawbecker. According to internal email correspondence on April 28, 2017, the Antofagasta delegation includes: Ivan Arriagada, CEO, Antofagasta plc; Daniel Altikes, Executive Director, Antofagasta plc; Rob Lehman, Chair of the WilmerHale Public Policy Practice; Andy Spielman, Chair of the WilmerHale Energy and Natural Resources Practice. An April 28th email from Karen Hawbecker to Lisa Russell at the Environmental Resources Division of DOJ indicates “this same group [from Antofagasta] may also have a meeting at the White House.”* *Update: reporting in the New York Times confirms that the group from Antofagasta met with Michael Catanzaro, who was then top advisor on energy and environment at the Trump White House.
May 3, 2017	Benedetto: Meet and Greet with Representatives of Save the Boundary Waters.
May 4, 2017	On the calendar of Ryan Zinke: In-person meeting with Secretary of Agriculture Sonny Perdue. Perdue will refer to this meeting in his 25 May appearance before the House Appropriations Interior Subcommittee..
May 10, 2017	On the calendar of Sonny Perdue: phone call with Senator Al Franken to “fill him in on a mineral leasing issue in the Boundary Waters.”
May 17, 2017	Richard McNeer of the Solicitor’s office forwards to Jack Haugrud “a draft outline of an explanation for reversal of the M-Opinion” prepared by attorney Briana Collier.
May 25, 2017	Agriculture Secretary Sonny Perdue appears before the House Appropriations Interior Subcommittee. See this post for his testimony.
May 26, 2017	Ian Duckworth, Chief Operating Officer of Twin Metals Minnesota, writes to then-Secretary of Interior Ryan Zinke and Secretary of Agriculture Sonny Perdue asking “that the U.S. Forest Service (USFS) cancel its application for withdrawal and, in the event the withdrawal application is not cancelled, that the Bureau of Land Management (BLM) deny the USFS’s application.” He also submits a four-page legal memorandum along with this letter. Principal Deputy Solicitor Daniel Jorjani call with Rachel Jacobson of WilmerHale, regarding a “DC Bar Event.”
June 1, 2017	email, Karen Hawbecker to Jack Haugrud: The White House “has expressed interest in the Twin Metals matter and Doug Domenich [sic] wants to talk to the WH today.” Kathleen Benedetto drafts a memo for Domenech on the Twin Metals Project.
June 6, 2017	Jeff Small, Director of the House Western Caucus, writes to Abbey Fretz at USDA about Secretary Sonny Perdue’s decision to let the “process play out” when it came to the proposed mineral withdrawal: “not encouraging for investors” and gives the impression the US is “not a good place to mine and do business.” Small refers her to Timothy Martin at WilmerHale.
June 9, 2017	Benedetto: Chat w/Timothy Martin from WilmerHale, re: Twin Metals – Minnesota. On the calendar of Katharine MacGregor, Deputy Assistant Secretary for Land and Minerals Management.
June 13, 2017	On the calendar of Daniel Jorjani: “Lease cancellation meeting.”
June 14, 2017	Jorjani meets with Raya Treiser and Andy Spielman of WilmerHale.
June 15, 2017	In a draft reply to Twin Metals COO Duckworth’s 27 May letter complaining of the proposed mineral withdrawal, Karen Hawbecker directs Duckworth to meet with Vincent De Vito, the Secretary’s Counselor for Energy Policy. USDA is cc’d on the reply. On the calendar of Gareth Rees: meeting with Jobs for Minnesotans.
June 16, 2017	Benedetto Ext. Mtg. Twin Metals – Bob McFarlin [at that time, Vice President of Public and Government Affairs, Twin Metals Minnesota].
June 19, 2017	Meeting w/ USDA and DOI on Twin Metals Superior National Forest. On the calendar of Katharine MacGregor and on the calendar of Michael Nedd, Acting Director of BLM.
June 19, 2017	Deputy Solicitor Daniel Jorjani forwards a press release to Jack Haugrud: “Reps. Gosar, Emmer, Nolan and Westerman Urge Rescission of 234,328-acre Mineral Withdrawal and Renewal of Leases in Minnesota.” Haugrud sends the item to Karen Hawbecker, with the note: “FYI, in case you have not already seen it.”
June 20, 2017	On the calendar of Michael Nedd: Follow Up on Twin Metals Superior National Forest
June 22, 2017	On the calendar of Timothy Williams, Deputy Director, Intergovernmental and External Affairs: meeting with Chad Horrell of DCI, on behalf of Sportsmen for the Boundary Waters.
July 10, 2017	On the calendar of Ryan Zinke: “Minnesota Briefing.” Later that day, Zinke meets with Dayton. According to journalist Rachel Stassen-Berger , a spokesperson for Governor Mark Dayton says he and Zinke “discussed the Twin Metals project, and the Secretary expressed his support for the environmental review process established by the National Environmental Protection [sic: read, Policy] Act (NEPA)”
July 24, 2017	Bureau of Land Management produces a briefing paper on the Forest Service’s mineral withdrawal application.
July 25, 2017	All Hands on Deck for meeting with Antofagasta Plc re: Twin Metals Minnesota Project. On the calendar of Gareth Rees. Included: Kevin Haugrud, Katharine MacGregor, Michael Anderson, Karen Hawbecker, Kathleen Benedetto, James Cason, Gareth Rees, Linda Thurn, Richard Cardinale, Tracie Lassiter, Mariagrazia Caminiti, Edward Passarelli, Michael Nedd, Daniel Jorjani.
August 6, 2017	Karen Hawbecker forwards a briefing paper “about the Twin Metals litigation in preparation for a meeting” with Deputy Secretary of the Interior David Bernhardt. This may or may not be the same as the “Twin Metals Potential Scenarios for Lease Renewal” paper “with comments” she and Jack Haugrud discuss in August 6 and 7 emails.
August 9, 2017	Katharine MacGregor: meeting with Chad Horrell, Sportsmen for the Boundary Waters.
August 11, 2017	Twin Metals submits “comments” on the proposed mineral withdrawal of the Rainy River Watershed, Superior National Forest (as mentioned in a May 15, 2018 email from Twin Metals attorney Kevin Baker to Karen Hawbecker). These comments consist of two legal memoranda, one from Twin Metals VP of Legal Affairs and another from Twin Metals attorneys at Dorsey & Whitney LLP, arguing that the Rainy River Watershed mineral withdrawal is illegal.
August 22, 2017	Daniel Jorjani meeting on “Minnesota Project” with Michael J. Catanzaro, (White House, Executive Office of the President), Stephen Vaden (Office of General Counsel, Department of Agriculture).
August 24, 2017	Department of Interior hosts CEO Critical Minerals Roundtable
August 30, 2017	On the calendar of Vincent DeVito: Meeting with Tim Martin, WilmerHale
September 7, 2017	Internal meeting at Department of Interior on Twin Metals: Daniel Jorjani with Jack Haugrud.
September 21, 2017	Phone call: Twin Metals. On the calendar of James Cason, Associate Deputy Secretary of the Interior. James Cason with Associate Solicitor John Hay; Associate Solicitor, Division of Indian Affairs Eric Shepard; Deputy Secretary Catherine Gulac; Associate Solicitor Karen Hawbecker.
September 25, 2017	On the calendar of Josh Campbell, Office of the Solicitor: call with Tim Martin and Raya Treiser of WilmerHale.
September 28, 2017	Vincent DeVito meets with Daniel Altikes, Vice-President, Antofagasta Plc, along with WilmerHale’s Raya Treiser and Andy Spielman, Permitting Counsel for the Twin Metals project at WilmerHale. cf. June 15.
October 2, 2017	Secretary Ryan Zinke, Deputy Secretary David Bernhardt, Deputy Solicitor Daniel Jorjani (sporting the title “Regulatory Reform Officer”) host representatives of oil, gas, and mining at an event called “Cut the Red Tape: Liberating America from Bureaucracy.”
October 3, 2017	On the calendar or “daily cards” of David Bernhardt: call with Congressman Tom Emmer. “Rep to call Gareth [Rees.].” Senator Amy Klobuchar attends a “bipartisan” dinner at the Kalorama mansion, ostensibly to discuss criminal justice reform.
October 4, 2017	Deputy Secretary of the Interior David Bernhardt briefed on Twin Metals. Bernhardt attends the National Mining Association Board of Directors meeting at Trump International Hotel. On the calendar of Gareth Rees: Office of the Solicitor meeting on Twin Metals.(Gareth Rees will have lunch with Bernhardt two days later, on October 6.)
October 12, 2017	Office of the Solicitor meets with Twin Metals Minnesota: mentioned in an October 27, 2017 email from Briana Collier to Karen Hawbecker and Richard McNeer of the Office of the Solicitor. Jack Haugrud sets the working schedule for producing a “Twin Metals M-Opinion Reversal Draft” for “4-6 weeks from when we met with Twin Metals on October 12th.”
November 7, 2017	Briana Collier forwards the Twin Metals leases to political appointee Gary Lawkowski, Counselor to Daniel Jorjani. Jack Haugrud writes to Briana Collier, asking for documents that show “BLM intended to incorporate the terms of the 1966 lease terms into the 2004 leases.” On this exchange, see this post.
November 15, 2017	On the calendar of Vincent Devito: meeting with Raya Treiser and Andy Spielman, WilmerHale. See also: September 28, June 15.
November 17, 2017	Briana Collier is “working away on editing the Twin Metals opinion according to [Jack Haugrud’s] directions.”
November 18, 2017	Jack Haugrud to Briana Collier: “I didn’t realize until last night that Gary [Lawkowski] was working on his own draft” of the reversal. Haugrud sets out to reconcile this draft by a political appointee with the draft produced by Briana Collier.
November 27, 2017	Jack Haugrud emails attorneys at the Environmental and Natural Resources Division of DOJ a draft of the “M-Opinion that would reverse M-37036 and conclude that Twin Metals does have a non-discretionary right to a third renewal.” He asks for comments that week, as Acting Solicitor Daniel Jorjani “would like to issue the M-Opinion this week.”
December 13, 2017	Bob McFarlin, Government Affairs Advisor for Twin Metals Minnesota, writes to “Kathy” [Kathleen Benedetto, BLM]: he is coming to DC for a “quick meeting USFS Chief Tooke and would love to touch base. [Tony Tooke had succeeded Tom Tidwell on September 1, 2017.] I will be traveling with Twin Metals’ VP of Environment and Sustainability, Anne Williamson, who you met in Minnesota this past summer.” He asks that Mitch Leverette, Eastern States Acting Director, Bureau of Land Management, join them. After some back and forth, it’s decided DMR [=Division of Mineral Resources?] should represent the Office of the Solicitor at the meeting.
December 15, 2017	Bob McFarlin meets with Kathleen Benedetto: “The litigation is not expected to be the topic of conversation,” according to an email from Justin Katusak.
December 19, 2017	The US Forest Service is “again pinging BLM” out of concern over what standards of environmental review apply to the proposed mineral withdrawal in Superior National Forest.
December 20, 2017	At the request of Interior Communications, Gary Lawkowski, Counselor to the Solicitor of the Interior, 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.” In a second email circulating the talking points to Deputy Director of Communications Russell Newell, he 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.”
December 21, 2017	Email from Russell Newell: Plans for the Minnesota-only news release requested by BLM on the forthcoming opinion are cancelled, and the Department will comment “if asked.” Some final revisions to the M-Opinion draft: difficulties finding the correct Weeks Act citation for the paragraph about Statutory Authority (on p. 2 of the issued opinion); reworking of footnotes for the section on lease renewals (pp. 11-13) arguing that BLM renewed the leases in 1989 and 2004 under the 1966 terms. One footnote in particular — number 65 in this near-final draft — “raises issues we do not want to address.” On the calendar of Timothy Williams: “Quick huddle” in the office of Todd Wynn, Director of the Interior Department’s Office of Intergovernmental and External Affairs regarding Twin Metals, MIgratory Bird Treaty Act, and signing of Secretary’s Order. In attendance: Stephen Smith, Cynthia Moses-Nedd, Jason Funes, Timothy Williams, and Todd Wynn.
December 22, 2017	Principal Deputy Solicitor Jordan releases Memo M-37049, allowing Twin Metals to renew its leases of Superior National Forest lands. 3:17PM email from Jack Haugrud to Solicitor’s office: “Just got a call from Raya [B. Treiser] at Wilmer[Hale]. Twin Metals is moving today to dismiss their case against us.” 3:44PM Upon hearing that Governor Dayton issued a statement calling the reversal “shameful,” David Bernhardt sends a mocking email to Daniel Jorjani: “He should call Ken Salazar.”

How this timeline came about:

Back in March of 2018, reporting by Jimmy Tobias gave us a little more insight into the Boundary Waters reversal. (My posts on the topic are collected here.) Through a records request, Tobias obtained the calendar of Kathleen Benedetto, Special Assistant to Interior Secretary Ryan Zinke.

Described as “a fixer for the mining companies,” Benedetto now helps oversee the Bureau of Land Management. She has publicly taken the position that conservation of public lands is a barrier to “progress.”

The Benedetto calendar gave us a much fuller chronology and more detail than we previously had. Tobias identified at least six meetings or communications with mining interests on Benedetto’s calendar regarding the Twin Metals project in Superior National Forest, including the July 25th all-hands-on-deck meeting between high-ranking Interior officials and representatives of Antofagasta Plc. I subsequently learned that the group had met with Antofagasta earlier, on May 2nd, less than a month after Benedetto started meeting with mining company representatives.

When I put Benedetto’s calendar together with the Deputy Solicitor Daniel Jorjani’s calendar, this timeline started to come into focus. Since then, I have been able to consult other calendars and received some materials in response to two FOIA requests. It is now clear that Interior was holding internal meetings about Twin Metals and the withdrawal of Superior National Forest lands in the first weeks of the new administration, and as early as February of 2017.

So there were many meetings about the Twin Metals project before Benedetto hosted a “meet and greet” with a Boundary Waters conservation group on May 3rd, 2017; and it looks as if the reversal was a done deal by the time Katharine MacGregor met with Sportsmen for the Boundary Waters’ Chad Horrell on August 9th.

At the very least, this timeline indicates that restoring Twin Metals “right of renewal” for their mineral leases in Superior National Forest was a priority at Interior from the moment the Trump administration took office.

The lobbying effort was a full court press, led by Raya Treiser, Rob Lehman, and Andy Spielman of WilmerHale. Litigation counsel for Chilean conglomerate Antofagasta plc — Daniel Volchok, Michael Hazel, and Paul Wolfson — are also from WilmerHale.

Note: I’ll continue to make updates to this timeline as DOI releases more materials in response to FOIA requests.

Read more about the Boundary Waters reversal here.

Another Note on the Boundary Waters Reversal

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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.

Is Corruption at Interior Putting the Boundary Waters At Risk?

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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.

Statement from @GovMarkDayton concerning the memorandum issued today by the U.S. Interior Department reversing its decision on mineral leases for Twin Metals near the Boundary Waters Canoe Area Wilderness #mnleg pic.twitter.com/0Cl2EkjYwq

— Matt Swenson (@MattSwenson) December 22, 2017

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.

No conozco al Pdte Trump ni a ningún miembro d su familia. Hace 4 o 5 años lo saludé en el estadio de los Patriots en Boston.

— Andrónico Luksic C. (@aluksicc) March 8, 2017

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.

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