Tag Archives: Water

A New Set of Boundary Waters Documents

In response to a Freedom of Information Act request I made back in January of 2018, the Department of Interior has released over 5,000 pages related to the Trump administration’s rollback of federal protections for the Boundary Waters. These and other documents have allowed me to put together this timeline, which tells a pretty clear story. From the very first days of the new administration, Interior Department officials and mining company lobbyists worked closely together, and with blatant disregard for science and the environment, toward a predetermined outcome that served the business interests of a foreign mining company, and not the public interest.

The latest release arrived on Friday afternoon. It’s a collection of email correspondence and attachments from Briana Collier, an attorney in the Division of Mineral Resources. These documents are now published here.

An email from Collier included in an earlier release had tipped me off to a previously undisclosed meeting at the US embassy between the CEO of Antofagasta PLC and the Carol Z. Perez, the US ambassador to Chile. Any hopes that this latest release would shed more light on that meeting, or make other equally significant disclosures, were quickly dashed when I opened the PDF. About 400 of the 650 pages included here are redacted, many of them entirely, on the basis of attorney client privilege or deliberative process. Almost all date from December of 2017, when the Office of the Solicitor at Interior was finalizing the Jorjani memo — the memo that cleared the way for Antofagasta PLC to renew its mineral leases in Superior National Forest.

In these documents, we mainly see officials crossing ts and dotting is in the memo before its release. There are some emails exchanged at the last minute regarding the first footnote in the memo, on the Weeks Act, which establishes the Secretary of Interior’s statutory authority for the disposition of minerals. The footnotes for an important section of the memo (pp. 11-13), arguing that BLM previously renewed the leases on 1966 terms, are the subject of another last minute exchange. One footnote in particular, which is number 65 in the draft under discussion (but not necessarily in the final version, given all the last minute changes) “raises issues we do not want to address.” What issues are those?

Twin Metals continues to work closely with Interior. When Bob McFarlin, Government Affairs Advisor for Twin Metals, comes to DC with Anne Williamson, Twin Metals Vice President of Environment and Sustainability. for a “quick meeting” on December 15th with Tony Tooke, the new US Forest Service Chief, he writes to see whether he might arrange a “short visit” while he’s in town with Kathleen Benedetto. Benedetto and Williamson had met — when exactly, we don’t know — during the summer of 2017. McFarlin asks that Mitch Leverette, Eastern States Acting Director, Bureau of Land Management, join them.

There is ongoing concern over coordination with the Forest Service, from the drafting of a letter announcing that BLM will no longer consider the Forest Service’s non-consent to lease renewal valid, to the very minute the memo is released. Correspondence with the Forest Service’s Kathleen Atkinson is almost entirely redacted. And Interior’s efforts to coordinate with Forest Service only add to the confusion around plans for a news release. At what appears to be the direction of David Bernhardt’s office, work was done on a “relatively short” Minnesota-only press release. Even that is eventually cancelled, and it’s decided that Interior will deal with this only “if asked.”

Before that, however, and at the request of Interior Communications, Gary Lawkowski, Counselor to the Solicitor of the Interior and another Koch veteran, forwards a “one-pager of talking points on the Twin Metals opinion” to Daniel Jorjani and Jack Haugrud for review. He has put them together “given [or with an eye to] today’s focus on critical minerals.” (Recall that “strategic minerals” were a central theme of Ivan Arriagada’s April 17, 2017 letter to Secretary Zinke as well.) In a second email circulating the talking points to Deputy Director of Communications Russell Newell, Lawkowski elaborates: “One thing you all may want to note — the Forest Service has indicated that they believe there are potentially cobalt and platinum deposits underneath Superior National Forest….Cobalt and platinum are on the list of 23 critical minerals released by USGS earlier this week.” Eureka.

As I continue to comb through this latest release, I will add more details to the Twin Metals Timeline. If something here catches your eye, let me know in the comments below, or send me an email (my Twitter handle is also my gmail address). And if you have documents that can add color or contrast or depth to the timeline, please get in touch.

You can read all my posts about the Boundary Waters reversal here.

A Meeting in Santiago about Mining in Minnesota

I’d like to focus, in this post, on what is so far a unique entry in the Twin Metals timeline: an April meeting at the US Embassy in Santiago Chile, with Ivan Arriagada, the CEO of Antofagasta Plc, and Carol M. Perez, the US ambassador to Chile. We know about this meeting only through documents obtained by Freedom of Information Act requests, and specifically from just one email dated 26 April 2017, sent by Briana Collier to Jack Haugrud:

BrianaColliertoJackHaugrud

Intriguing: but for now, the best I can do is provide a little context.

As the timeline shows, the meeting at the US Embassy in Santiago, Chile in the week of April 26th took place during a period of intense activity around the Twin Metals project. It was held just a little over a week after Mr. Arriagada had written directly to then-Secretary of the Interior Ryan Zinke, requesting an in-person meeting in Washington, DC, on either May 2nd or 3rd. (Arriagada would come to Interior for the first time on the 3rd. Internal emails show that he met on that occasion with several officials at the Department of the Interior, but Zinke is not among them, at least not on the calendar entries I have seen; and if Arriagada met with Zinke separately on May 3rd, there is no entry for any such meeting on Zinke’s official calendar.) So perhaps the embassy in Santiago serves as a way station of sorts, a first stop for Arriagada on his American tour.

It was probably here, in Santiago, that Arriagada first started to make the case he would make in Washington, DC. The letter to Ryan Zinke lays out the appeal the mining company would make at Interior, and it also helps us gain an impression of what this meeting at the embassy was about. It opens with Arriagada declaring that he is “proud” to associate himself and his company — which has never operated a mine in the United States — with “the development of strategic minerals in the United States.” Here in the US, Arriagada clearly understands, minerals acquire “strategic” status when mining companies run into permitting delays and other difficulties. It is, as I’ve noted elsewhere, code for overriding and rolling back environmental regulations. (This leads me to suspect that Arriagada’s letter to Zinke was actually written by the lobbyists at WilmerHale. Whether they played a role in arranging the meeting at the US embassy is impossible to say, given the evidence we have.)

Arriagada’s letter goes on to explain that Antofagasta has already spent “upwards of $400 million in investment” on the “exploratory phase” of Twin Metals. The company frequently brandishes this figure, but I’ve never seen it broken down. Interior’s own Kathleen Benedetto will repeat the $400 million figure a week later, on April 25th, when she briefs Zinke in preparation for his 26 April meeting with Representatives Emmer and Nolan; and the number will be repeated in news stories as well. I am not sure what “upwards” means here, but it seems to be doing an awful lot of work. Principal Deputy Solicitor Jorjani seems to believe caution is warranted: near the end of his December 2017 memo, he notes only that the company “has asserted that it has spent over 400 million in exploration activity.”

For what it’s worth, $400 million is not a number Antofagasta uses in its communications with shareholders or in its financial statements. (See, e.g., here, here and here.) The number routinely associated with the Twin Metals project in these communications is black, not red: $150 million — the value PWC, Antofagasta’s auditor, assigns to the project as an “intangible asset.” When it comes to investments, both the 2015 and 2016 Antofagasta annual reports note a decrease in exploration and evaluation costs, reflecting a “general decrease” in exploration activity “at the Centinela District in Chile and the Twin Metals project in the United States.” There is the added minor discrepancy that this letter characterizes Twin Metals as a “mineral development project, currently in the exploratory phase,” while in the 2016 and 2017 annual reports, the project has already advanced from the Exploratory phase to the Evaluation phase. It appears shareholders and US government agencies are being told two different stories about Twin Metals. In any case, the big round $400 million number is the thing that sticks. It’s used to intimidate and spook. A year later, Zinke will tell Representative Betty McCollum that the Obama administration’s decision exposed taxpayers to “hundreds of millions of dollars” in takings litigation. He was probably recalling Arriagada’s number, or Benedetto’s spin on it.

We now know that Zinke and the Department of Interior were doing Arriagada’s bidding all along, and they’d gotten started well before this letter was written. (And if WilmerHale did in fact draft this letter, then it’s really just some stage business, to create a paper trail for a meeting to discuss an ongoing effort coordinated by WilmerHale.) Interior officials appear to have been less concerned about the exposure of US taxpayers than about the risk the mining company had taken on: “our past and future investment now hangs in the balance,” Arriagada writes in April of 2017. He asks to meet with Zinke to discuss “a viable path forward” for the Twin Metals project. The letter lists three obstacles the Obama administration put in Antofagasta’s way: the M-opinion issued by solicitor Hilary Tompkins; the decision by the Bureau of Land Management to rescind the Twin Metals leases, based on the M opinion; and the withdrawal of thousands of acres of Superior National Forest from mineral development initiated by BLM and the US Forest Service. Remarkably, before Zinke resigned in disgrace, he, Deputy Solicitor Daniel Jorjani, and other officials at the Department of the Interior (and the Department of Agriculture) came through for the Chilean mining company on all three counts.

How any of this work on the mining company’s behalf at Interior bears on the meeting in Santiago, Chile, and what any of it has to do with Carol Z. Perez, the US ambassador to Chile, is hard to say. It’s still not clear why Arriagada thought he should stop first at the embassy in Santiago. A courtesy? An opportunity to get some pointers on how to deal with the new administration? Or something even more specific? To get a better idea, I’ve filed two FOIA requests with the Department of State for communications and documents that will help illustrate the meeting Perez had with Arriagada, but the State Department has labeled the requests “complex,” and I have yet to receive any responsive documents.

We know that Briana Collier briefed Perez, so Perez was looking at the Twin Metals project through the lens of the briefing document Interior provided. And if this briefing was anything like the one page briefing prepared around the same time for Zinke by Kathleen Benedetto — if that April 25 briefing represents the general position of Interior at that point in time — we can observe one thing at least. By April, the US government had completely set aside the previous findings of the US Forest Service and any consideration of the serious environmental risks posed by sulfide mining operations on lands adjacent to the Boundary Waters. The Benedetto briefing makes no mention whatsoever of these concerns. In fact, when Doug Domenech took a briefing on the Twin Metals project for the White House a little over a month later, on June 1, 2017, he apparently read what Benedetto sent him and needed some clarification on this point. That much is clear from Benedetto’s reply:

Benedetto_to_Domenech1June2017

Sic. And with that sloppily written gesture, which barely manages to disguise its contemptuous disregard, Benedetto relegates all science and science-based policy that would caution against permitting sulfide mining in this region to what “people opposed to the project believe.” (The only risk Benedetto appears to consider worth mentioning is the exposure of the American Taxpayer — the initial capitals are hers — to takings litigation, adding that BLM values the Twin Metals deposit at $49.48 billion. The figure is based on a 2014 BLM report that assumes a 44% rate of return. That $400 million investment sure has grown.)

The meeting at the embassy in Santiago needs to be seen in the context of this coordinated push to overturn Obama era decisions, sideline science and environmental protections, and turn Antofagasta’s much-touted investment to a tangible asset — a working mine. Without some response to the Department of State FOIA requests, context will have to substitute for content. Why should the State Department have been asked to intervene in the Twin Metals matter?

Perhaps the aim of this meeting was not to involve the State Department at all. That may not make a whole lot of sense, on the face of it. Perez made her career in the State Department, serving in various posts around the world since the 1980s. She worked for Condoleezza Rice, did a brief stint in Italy, and coordinated State Department anti-drug trafficking efforts before President Obama appointed her US Ambassador to Chile in 2016. She appears to enjoy no special favor with the Trump administration, and she was slated to be replaced by a Trump nominee: Andrew Gellert, who was nominated to the post on January 4th, 2018. And Gellert would be much more closely aligned with the White House than with foreign service officials in the State Department.

This is one last piece of context to consider. We don’t know why Arriagada brought the US embassy in Santiago into the loop on the Twin Metals project. It seems tolerably clear, however, that the US embassy in Santiago would have remained in the loop, and in much closer communication with the Trump White House, had Andrew Gellert been confirmed as US ambassador to Chile. As was noted at the time of his nomination, Andrew is the son of George Gellert, a longtime business associate of Charles Kushner. The Gellerts and the Kushners have done business together for decades, often by nothing more than a handshake — no contracts. Andrew is President of the Gellert Global Group, a food importing conglomerate that does some dried fruit and nut business in Chile, and also counts among its holdings and investments “numerous real estate ventures” with the Kushner Companies. After Charles Kushner’s conviction and imprisonment a decade ago, George Gellert started working closely with Jared Kushner on a number of deals, including the disastrous 666 Fifth Avenue deal. It seems worth noting — even if it’s hard to figure out whether it amounts to anything at all — that back in August of 2018, just a couple of weeks after Brookfield Asset Management paid $1.3 billion to rescue Jared Kushner and George Gellert from 666 Fifth Avenue, Andrew’s nomination to be ambassador to Chile was quietly withdrawn.

The Supreme Court is going to do what, exactly? Another update on MCRC v. EPA

It turns out Marquette County Road Commission v. EPA, the mining haul route case I’ve followed for a few years, is not dead yet. Back in June, the Sixth Circuit denied a petition for an en banc hearing. That seemed the end of it. Now, a TV6 report says that the Pacific Legal Foundation’s Mark Miller is talking — once again — about Supreme Court review.

A Petition for a Writ of Certiorari was filed on October 25th. A response is due on November 28th.*

Maybe Miller knows something about the composition of the court post-Kavanaugh I don’t. The Sixth Circuit firmly rejected his argument — that the EPA’s objections to the Marquette County Road Commission’s plan for County Road 595 were tantamount to a “veto.” Now, he believes

the U.S. Supreme Court will read our petition, review our case on the merits, ultimately, and agree with us that the road commission’s plan as approved by the state should at least be considered by a judge as compared to the EPAs decision to reject that plan.

If I follow what Miller’s saying here, the Supreme Court is going to review a case that was denied en banc hearing at the Sixth Circuit, and then recommend that a judge — what judge? an administrative law judge? in what court?  — consider the Road Commission’s plan and weigh it against the objections of the EPA. I think I got that right.

Jim Iwanicki, Marquette County Road Commissioner, has another set of expectations:

the purpose of the lawsuit is to have the U.S. Supreme Court review the decision of the Michigan Appeals Court to side with the EPA and to get an explanation as to why the the EPA turned down the permit in the first place….Iwanicki says he wants answers on the EPA’s decision. He says the road commission was not given a solid answer on why the EPA ruled against the road’s construction.

The construction of 595 would have gone through undeveloped wetlands.

“There is no mechanism right now to build 595,” said Iwanicki. “Right now it is more of the issue of, were we treated fairly and was the permit looked at properly. If not then those people that didn’t look at it properly should be addressed and called forward on the carpet.”

I wonder if these are actual expectations, or if Miller and Iwaniki — and StandU.P., the dark money 501c4 behind the push for CR 595 — are rabble rousing.

*Update: on November 21st, Solicitor General Noel Francisco requested, and the Supreme Court granted, an extension to December 28th to file a response. The reason given: “the heavy press of earlier assigned cases to the attorneys handling this matter.”

Second Update, 4 December: Two amicus curiae briefs were filed on November 28th in support of the Marquette County Road Commission by the Southeastern Legal Foundation and the Mackinac Center for Public Policy and the County Road Association of Michigan and Stand U.P., the 501c4 dark money organization promoting CR595. Both briefs take their cue from the argument that failed in the Sixth Circuit, asserting that the question before the court involves an “arbitrary and capricious EPA veto.”

Update, 19 December. The Department of Justice has requested a second extension, until January 28, 2019, to file a response. The reason given is, again, “because the attorneys with principal responsibility for preparation of the government’s response have been heavily engaged with the press of previously assigned matters with proximate due dates.” The request goes on to note that counsel for the Marquette County Road Commission does not oppose a second extension. So we can’t expect anything like a resolution in this case until the New Year.

Update, 28 January 2019. The Environmental Protection Agency responded today to the Road Commission’s petition for Supreme Court review.  As expected, the reply focuses on the fact the Road Commission “voluntarily discontinued the permitting process” back in 2015, then turned around and brought suit, saying the EPA had acted in an arbitrary and capricious way.

The EPA replies that this is a mess of the Road Commission’s own making.

To be sure, EPA’s objections may have had the practical effect of making the overall Section 404 permitting process (if petitioner had continued to pursue it) more protracted than it otherwise would have been…. At most, however, EPA’s objections required petitioner to continue with a permitting process that petitioner was obligated to invoke regardless of EPA’s objections—a requirement “different in kind and legal effect from the burdens attending what heretofore has been considered to be final agency action.”

The Road Commission has repeatedly failed to convince the lower courts of its central contention, that EPA objections amounted to a veto.  Instead, when the Michigan Department of Environmental Quality declined in July of 2015 to grant or deny the Road Commission’s application, permitting authority for CR 595 transferred to the Army Corps of Engineers. The Road Commission could have simply continued the permitting process.  Why didn’t they? Instead, they’ve ended up here, at the door of the Supreme Court, looking for relief from — what, exactly? their own impatience?

Update, 11 February 2019. Attorneys for the Marquette County Road Commission have filed a Reply Brief. In a more sophisticated version of the veto argument rejected by the Sixth Circuit, they accuse the EPA of playing “a semantic shell game” around the issue of final agency action. They still use the word “veto” throughout the brief, and argue that EPA has made an important concession in its 28 January filing:

they now concede one crucial point that below they denied: the Corps required the Road Commission to submit a new Section 404 CWA permit application after the EPA vetoed the permit the State of Michigan stood ready to issue. [Here they cite a sentence from the EPA brief, which states:] “the Corps asked petitioner to submit a ‘new’ application.” That factual concession amounts to an implicit legal concession that, in regards to the State of Michigan Department of Environmental Quality (MDEQ) Section 404 CWA permit application process, the EPA’s work was consummated… Moreover, it recognizes that there were consequences to the Road Commission that flowed from that consummation of EPA’s work in regards to that vetoed state permit: now, the Road Commission had to take action in order to obtain a Section 404 CWA permit—it had to submit a new permit application to the Corps.

Who, exactly, is playing shell games? This argument appears to be little more than sophistry. When the EPA brief uses the word “new” at the indicated place (page 11), the brief is quoting the Marquette County Road Commission’s own petition. That is why the EPA places “new” inside quotation marks. EPA is, moreover, quoting Marquette County Road Commission in order to refute the assertion that this was anything but the continuation of an ongoing review process. To quote your opponent is not to concede his point.

The Reply Brief also cites the recent Weyerhaeuser decision over enforcement of the Endangered Species Act to argue that there is “a basic presumption of judicial review for any party suffering legal wrong because of agency action.” This would seem to create the burden of proving that the Road Commission suffered legal wrong — which would seem to bring us full circle: the Road Commission only suffered legal wrong if, in fact, the EPA’s objections constituted a veto.

Round and round we go. Now it’s up to the Roberts court to sort this out, or just turn it down. I still think the latter is the most likely outcome.

Update, 19 February 2019. A 13 February entry in the docket shows the case has been distributed for conference on the first of March. It is one of ten Sixth Circuit cases up for consideration.

You’ll find my other posts on MCRC v. EPA here

A Second Boundary Waters Reversal, And Its Connection to the First

Last week, Secretary of Agriculture Sonny Perdue announced that the USDA would cut short a Forest Service environmental study of the risks posed by sulfide mining in Superior National Forest, near the Boundary Waters in northern Minnesota. The study, which was launched only at the very end of 2016, “did not reveal new scientific information,” Perdue asserted. Those familiar with Perdue’s efforts to slash funding for research at USDA will not be surprised that the Secretary appeared, on this occasion, to demonstrate little regard for science and the time it takes to do good science.

Perdue offered vague reassurances that we can “protect the integrity of the watershed and contribute to economic growth and stronger communities.” After all, the statement goes on to say, northern Minnesota “has been mined for decades and is known as the ‘Iron Range’ due to its numerous iron mines.” That’s certainly true, and it will probably play to the pride people on the Iron Range take in their heritage; but Perdue never once mentions the kind of mining that is now under consideration — copper and nickel mining, or sulfide mining — and the enormous risks sulfide mining always presents. In fact, his statement does everything possible to sidestep the issue and conflate iron and non-ferrous mining.

The announcement was misleading, and it was all but lost amid the very loud noise created by the Anonymous Op Ed that had come out in the New York Times the day before. It is, however, consequential. Dan Kraker of Minnesota Public Radio rightly characterized Perdue’s announcement as “the Trump administration’s second major reversal of decisions made on mining in the Superior National Forest” — the first being the December 2017 legal memorandum on the renewal of Antofagasta’s mineral leases in Superior National Forest discussed in previous posts.

The two reversals are obviously connected and coordinated. Exactly how might be a little harder to say. We can start to trace their connection as early as 22 August 2017, when Department of Interior Principal Deputy Solicitor Daniel Jorjani holds a meeting with two White House officials. The topic: “Minnesota Project.” Here is the calendar entry for that meeting, which I’ve now added to the Twin Metals timeline:

MinnesotaProject

The apparent purpose of this meeting was to bring the White House, specifically the Office of the General Counsel and the Executive Office of the President, into the loop, or to provide the White House with an update on efforts to reverse this policy of the Obama administration.

The meeting included Michael J. Catanzaro, who was at the time Special Assistant to the President for Domestic Energy and Environmental Policy. He is profiled on DeSmog. His lobbying for oil and gas companies and his work with Senator Jim “Snowball” Inhofe and climate change denial campaigns are detailed there. Catanzaro stepped through DC’s revolving door and returned to his lobbying firm (CGCN Group) in April of this year.

The other White House official in that meeting was Stephen Vaden, who in August of 2017 was serving as Principal Deputy General Counsel at the U.S. Department of Agriculture. Vaden had also been a member of the Trump “beachhead team” at USDA. These teams were sent in to sabotage regulatory agencies and, as Steve Bannon put it, deconstruct the administrative state.

One month after this meeting, in September of 2017, Vaden would be officially nominated to become General Counsel at USDA. Legal staff at USDA did not exactly greet the nomination with enthusiasm. According to Politico, morale “plummeted.” There were concerns about Vaden’s lack of managerial experience, his hostility to unions, and his previous work for the Judicial Education Project on behalf of discriminatory Voter ID laws — which turned out to be the main focus of his 2017 nomination hearing. Vaden is still awaiting full confirmation in the Senate, but he is busy working at USDA and would no doubt have briefed Secretary Perdue on this matter.

So the meeting where these two Boundary Waters reversals connect comes a little more clearly into focus: Jorjani, with his strong ties to the Koch Institute, Catanzaro, an energy lobbyist hostile to science, and Vaden, with sketchy views on labor unions and voting rights, talking about a Chilean conglomerate’s mining leases in Superior National Forest.

Another Look at the Twin Metals Timeline

Rees20170502AntofagastaIn 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.

Demagoguery in Duluth

Earlier this week, in Duluth, Minnesota, Donald Trump stated that the reversal of Obama-era protections for the Boundary Waters promised great things “for our amazing people and miners and workers and for the people of Minnesota.”  Bizarrely, the president went so far as to claim that mining the Duluth Complex would “make it from an environmental standpoint better,” though it’s impossible to say what exactly “it” might refer to here.

He framed these remarks as an announcement, but it’s also difficult to say what, exactly, he was so “proudly announcing.” Those like Daniel Dale who track the president’s speeches have noticed that he tends to present as new and exciting events and initiatives that are long past, or which in fact have failed or run into trouble. This is especially true when it comes to the president’s statements about blue collar jobs, factories, and the economy.

The timeline clearly shows that the Department of Interior started taking meetings with lobbyists and representatives of Antofagasta Plc and Twin Metals in April of 2017, worked closely and steadily with them through the summer and fall, and issued a legal memo favorable to the mining companies in December of that year. Secretary Zinke’s latest action — the reinstatement of Antofagasta’s mining leases in Superior National Forest on May 2, 2018 — was over a year in the making. Almost all of this work was done behind the scenes, without meaningful public participation. Announcements would only have drawn unwelcome attention.

In Duluth, the announcement of “first steps” that were in fact already taken might have been made to pre-empt or drown out the real news of this week: the filing of a Complaint in the US District Court for the District of Columbia by a group of ten Minnesota plaintiffs against the Department of Interior, the Bureau of Land Management, Secretary Ryan Zinke, and BLM’s Brian Steed.  The Complaint charges that the reinstatement of Antofagasta Plc’s mining leases in Superior National Forest “exceeds their authority under law and is arbitrary and capricious” and asks the Court “to enjoin them from further consideration of applications to renew the two leases.”

Filed yesterday, just hours after Trump’s Duluth rally, this Complaint is actual news. It will not get one tenth of the coverage Trump’s bluster receives.

There’s little if anything that’s new and even less of substance here. I include the video because it’s helpful to consider where Trump is clearly reading from prepared remarks (which might indicate some actual administrative policy step) and where he is simply wandering off on his own into vague promises of some “better” future. He did the latter for most of the minute he spent on the subject of Superior National Forest, veering off, at the end, into incoherence.

Here is my transcript of his remarks on the topic:

Under the previous administration, America’s rich natural resources, of which your state has a lot, were put under lock and key, including thousands of acres in Superior National Forest. You know what that is, right? Tonight I’m proudly announcing that we will soon be taking the first steps to rescind the federal withdrawal in Superior National Forest and restore mineral exploration for our amazing people and miners and workers and for the people of Minnesota, one of the great natural reserves of the world. And we’ll do it carefully, and maybe, if it doesn’t pass muster, we won’t do it at all, but it is going to happen I will tell you that. It’s gonna happen. And it’s happening fast. We’ve already taken it as you know a long way down the road. And it’s gonna make things better. It’s gonna make it from an environmental standpoint better. 

Here, as far as I can tell, is the substance of his prepared remarks.

Under the previous administration, America’s rich natural resources were put under lock and key, including thousands of acres in Superior National Forest. We [have taken] the first steps to rescind the federal withdrawal in Superior National Forest and restore mineral exploration [in] one of the great natural reserves of the world. 

The opening jab at Obama, who locked away riches that are rightfully ours, also makes a mockery of the very idea of conservation and environmental protection. But who’s really paying attention? The audience cheers at the mention of Superior National Forest: “you know what that is, right?” Trump clearly does not, but he tries to milk the cheer anyway; it’s a variation on the tired old comedian’s schtick: who here is from Jersey? Anybody? New Jersey!

Superior National Forest is seen here entirely through the lens of extractive industry: a “natural reserve,” a store of minerals. Just as importantly, the statement makes no mention of the risky mining that this will involve — sulfide mining, a kind of mining the amazing people of the Iron Range have never done before, and which has the potential to destroy the very things people in Minnesota prize about Superior National Forest and the nearby Boundary Waters area.

Marshall Helmberger sums it up in a must read article on the new Complaint in The Timberjay :

Former Forest Service Chief Tom Tidwell, in December 2016, issued detailed findings of fact concluding it was likely that acid mine drainage from the Twin Metals mine would contaminate the BWCAW and cause adverse effects on the water quality, fish populations, aquatic ecosystems, and animal species. Tidwell further considered the possibility of containment, mitigation and remediation efforts and found that very few would be compatible with maintaining the BWCAW’s wilderness character.

While it appears that the president’s prepared remarks also included some vague gesture toward environmental responsibility, Trump turns that bit into a meaningless jumble, saying at first that the mineral exploration of the Duluth Complex will only go forward if it passes muster, then assuring the audience that “it is going to happen…It’s gonna happen,” and when it does happen, “it” is going to make “it” better. “It” here can mean anything, or nothing at all: he’s not offering the crowd anything beyond the word “better,” which is pretty much all they came out to hear anyway.

Purdy on Public-Lands Populism

From the closing paragraphs of Jedediah Purdy’s Whose Lands? Which Public?

In its monuments proclamations, the Trump Administration asserts a sweeping power to reclassify fifteen million acres of protected federal land and hundreds of millions of marine acres. The proclamations already issued, which purport to strip more than a million acres of monument status, are redolent of this Administration’s illiberal and procedurally dubious tendencies. They elevate to federal policy the themes and goals of a strand of Western populism that is tainted with outlawry and racism. The proclamations also cater to extractive industries, particularly uranium, oil and gas, and coal, in ways that resonate with the Trump Administration’s relentless mixing of public wealth and private interest–in a phrase, its penchant for corruption….

Corruption is not a novel concern here. For well over a century, the field [of public-lands law] has been shaped by recognition that precipitate and opportunistic privatization is a perennial temptation in a body of law that governs nearly a third of the country’s acreage and a great deal of its natural wealth. The Executive branch’s capacity for rapid, unilateral, and obscure action makes it especially suited to this form of misappropriation. Recognition of these facts is built into public-lands law in the long-standing asymmetric preference for Presidential power to preserve lands over Presidential power to privatize them…. The kind of opportunistic favoritism that the Trump proclamations display is precisely what public-lands law has been structured over centuries to avert. These proclamations are paradigms of why unilateral Presidential reclassification toward privatizing natural resources would be anomalous in public-lands law. A Court would properly consider the anomaly in deciding whether the power to create national monuments should imply the power to unmake them.

In the case of the Trump proclamations, the question of opportunism and favoritism in reclassification decisions interacts with the influence of racially inflected nationalism and localist outlawry on the Administration’s priorities. Here too, as with corruption, these themes are not novel or alien to public-lands law. Extractivism, settler-colonialism, and the priority of property-style resource claims and local control are, in key ways, continuations of the themes that governed the first hundred years of public-lands law. Their constituencies have never left the field. It is partly because of these constituencies’ persistent opposition to preservation agendas that public-lands law has always been inflected by disputes over national identity, from the utilitarian nationalism of Gifford Pinchot and Theodore Roosevelt’s national forests to the national parks’ much-advertised status as the American answer to Europe’s cathedrals to the claim that wilderness preservation would keep the country from becoming a “cage.”

Here too, public-lands law has been shaped by grappling with the themes that the Trump proclamations raise. And here too its shape contains a good part of an answer. The public-lands populists’ claims on behalf of privatizing and extractive policies already have a specific legal expression that is deeply embedded in public-lands law: in long-standing public rights-of-way across the federal lands of the West, in mining and mineral-leasing regimes, in grazing rights, and in the default policy of extensive public recreational access — and, above all, in the private real estate that was substantially created under federal privatization schemes. In other words, these claims do not come from outside public-lands law. They are part of it, and they occupy a specific place in its structure. Where they have been vested, they tend to persist within new regimes that otherwise emphasize preservation over extraction and economic use. On multiple-use lands, they play a prominent part in the statutorily mandated planning process. Where, however, they are not vested but take the form of inchoate expectations of continued access, they yield on categorically protected lands: new privatizing and extractive claims are almost uniformly excluded under preservation regimes. For such claims to get traction again, the lands themselves must be reclassified. That reclassification is generally reserved to Congress. If the Antiquities Act authorizes the President to hand a victory to public-lands populists by reclassifying hotly contested lands, then it is a dramatic anomaly in public-lands law. It would authorize constant perennial and shifting reopening of precisely the disputes that the field exists to structure and resolve, and through a mechanism that is procedurally orthogonal to the rest of the field.

The Trump proclamations raise a novel question for interpretation of one of the most important public-lands statutes. Like much that this Administration does, however, it is not so much new as it is an effort to reopen questions that many of us had hoped were closed. In this case, they should remain closed.

McCollum Questions Zinke on the Boundary Waters Reversal

This morning, Interior Secretary Ryan Zinke appeared before the House Appropriations Committee at a hearing on the FY 2019 Budget.  The video below marks the moment when Minnesota Representative Betty McCollum questioned Secretary Zinke on the Boundary Waters reversal.

It begins with an exchange on Bears Ears and Grand Staircase, in the course of which Zinke says reporting in the New York Times based on U.S. Department of Interior memos is not “credible.” Fake news.

McCollum then moves the discussion to the Boundary Waters reversal. Her main question, which she asks in a few different ways, is whether Deputy Solicitor Jorjani met with any stakeholders other than lobbyists for Twin Metals Minnesota before issuing his reversal memo.

Zinke’s response that this is all part of the public record is at best disingenuous, given that nearly all the information we have to date about the reversal is the result of FOIA requests; and it’s also Trumpian in its post-truthiness, since Zinke just declared a few moments earlier that reporting based on Department of Interior records is not to be trusted.

At any rate, here is the full exchange:

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

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.

From Caval to Kalorama

Kalorama

The Washington, D.C. mansion rented by Jared Kushner and Ivanka Trump.

We know this much. In December of 2016, just after the election, Chilean billionaire Andronico Luksic Craig bought the Kalorama Triangle mansion that Jared Kushner and Ivanka Trump now rent in Washington, D.C.. Just about six months later*, records show, the Department of Interior began drafting the December 22nd, 2017 memo that would reverse Obama-era protections for the Boundary Waters and renew the lease of lands in Superior National Forest held by Twin Metals, a wholly owned subsidiary of Antofagasta Plc, the mining conglomerate controlled by the Luksic family. Headlines have hinted at corrupt dealings, as I’ve noted in previous posts, but no hard evidence has come to light.

Maybe it’s all just a happy coincidence of the kind that frequently befalls the world of billionaires, mansions, and yachts. In any case, Andronico Luksic Craig, Jared and Ivanka’s landlord, is clearly a master of such coincidences. Journalist Horacio Brum dubs him “el gran titiritero de Chile,” the great puppetmaster of Chile. He is “a man who does not need to do politics,” writes Brum, “because he makes politicians.” The role Andronico Luksic Craig played in the scandal known in Chile as “el Caso Caval” — The Caval Affair — is illustrative.

The Caval Affair involved a $10 million loan for a shady real estate scheme undertaken in late 2013 by Natalia Compagnon, the daughter-in-law of Chile’s president, Michelle Bachelet, and 50 percent owner of a company called Sociedad Exportadora y de Gestión Caval Limitada. El Caso Caval was a drawn out and complicated affair, and charges of corruption and influence peddling would dog Compagnon and the Bachelet family for years. Just one feature of the scandal needs to concern us at the moment, and that’s the timing of the loan itself.

In the months immediately preceding Bachelet’s election, Compagnon had been trying to secure a line of credit for her company to purchase three plots of land in Machalí, in the O’Higgins Region in central Chile. Compagnon and her husband, Sebastian Davalos Michelet, met with the Vice President of Banco de Chile to discuss the project on November 6th, 2013. This was about ten days before the elections, which were scheduled for November 17th. The loan was approved on December 16th, 2013, just a month after Michelle Bachelet was elected to the presidency. The Vice President of the Banco de Chile who made these timely financial arrangements for the daughter-in-law of the new president elect was none other than Andronico Luksic Craig.

This time-lapse illustration produced for the news organization 24 Horas lays out the whole scandal in less than three minutes. Even if your Spanish is rusty, you can follow the story. Luksic first appears around 1:26.

The pattern looks familiar. When questioned about the loan, Luksic Craig at first denied meeting the young couple more than once. (This is classic Luksic, who claims never to have met his first family tenants, and only to have said hello to Trump himself once, at a Patriots’ football game in 2012.) Only later did he admit to various meetings and contacts between him and Compagnon, including one the day after Bachelet won the election. As the scandal grew, Andronico Luksic Craig managed to retreat back into the shadows and to keep himself and the Luksic family out of the headlines.

So far, the almost daily revelations of Jared Kushner’s far-flung attempts to bail out his family’s foundering real estate empire have not turned up anything that connects Kushner’s business troubles to Chile’s Grupo Luksic or the Luksic family. But it would not be terribly surprising to learn that there is more to the Kushner story and that Kalorama mansion than Luksic Craig claims. The president’s son-in-law is a quo looking for a quid, and when it comes to making that sort of delicate arrangement, Andronico Luksic Craig appears to be a real pro.

*Since writing this post, I have reviewed documents obtained through FOIA request that show the Department of the Interior working on the reversal of Obama administration protections for the Boundary Waters as early as February, 2017, just weeks after the inauguration.