REGIONAL—Can you sue the governor of Minnesota for lobbying federal officials?

That’s one of the unusual legal questions that will be tested by a lawsuit filed by an Ely-based nonprofit, several of its board members, and a St. Louis County Commissioner. The group, Up North Jobs, an organization created to promote copper-nickel mining in the Ely area, along with Executive Director Gerald Tyler, board members Mike Forsman, Dan Waters, Jay Mackie, and David Johnson, are joined by Commissioner Tom Rukavina and Nancy McReady in the lawsuit filed in district court in Virginia late last month.

The group alleges that Gov. Mark Dayton “colluded” with environmentalists to encourage the Bureau of Land Management to deny renewal of two federal mineral leases that are critical to the copper-nickel mining proposal put forward by Twin Metals, a foreign-owned mining venture.

The company is seeking to build its mine along the South Kawishiwi River, a major watershed within the Boundary Waters Canoe Area Wilderness and it faces considerable public opposition.

The BLM and the U.S. Forest Service are also advancing a proposal to withdraw 234,000 acres of the Superior National Forest, including the area proposed for the Twin Metals mine, from the federal minerals leasing program for the next 20 years.

The lawsuit also contends that Dayton violated state law and the constitution by denying “Twin Metals and Franconia access to state- owned lands in which, through valid executed state leases, they have a vested interest in nonferrous metals…”

In addition, the suit alleges that the governor’s decision violates a statutory requirement that state school trust lands be managed to maximize financial returns to the trust fund, which provides a small percentage of funding for the state’s schools.

That’s a particular concern to Tom Rukavina, who said he reluctantly signed on to the lawsuit out of frustration. “For me, it was a Popeye moment,” he said. “That’s all I can stand ‘cause I can’t stand no more.”

Rukavina noted that the vast majority of the money in the school trust has come from mining royalties on state lands and he said denying access to Twin Metals in this instance amounts to a broken promise to the state’s school kids. “This is exactly why Donald Trump got elected president, because government is breaking its promises,” he said.

Much of the 28-page legal complaint is a near verbatim copy of a federal lawsuit filed by Twin Metals last September that seeks to reverse the BLM’s decision to cancel two federal leases that were critical to the company’s mine proposal. That case is being heard in federal court, since state courts have no authority to weigh in on federal decision-making.

The lawsuit filed by the Ely group contends that Dayton “colluded” with environmentalists and federal officials to encourage federal officials to cancel Twin Metals’ federal leases and temporarily prohibit federal mineral leasing on 234,000 acres of state and federal land within the Rainy River watershed, which includes the South Kawishiwi River. Collusion is a legal term, which assumes that individuals cooperate or conspire to engage in illegal activity. The suit does not name any activists or groups that plaintiffs believe were involved in the collusion. But an information request sent to the governor by Gerald Tyler last April sought communications between Dayton and several prominent mining opponents from Ely, as well as Dayton’s ex-wife, who is also opposed to the mining proposal. Tyler said the Dayton administration failed to provide an appropriate response to the request, which is part of the impetus for his lawsuit.

The suit does not explain how communications between elected officials and constituents, or between the governor and federal officials, constitutes improper, much less illegal, activity. Dayton, in a statement, said, “I strongly believe that I am acting within the scope of my authority as the Chief Executive of the State of Minnesota.”

Tyler, who drafted the complaint, said Dayton’s contacts with federal officials did not constitute lobbying of federal officials, which is a routine part of a governor’s job. “He didn’t lobby anyone. He asked them not to renew the leases,” he said. Tyler said the governor’s action was improper because it interfered with Twin Metals’ rights to pursue its project. “In either case,” said Tyler, “the allegation that he colluded is really only one of the wrongful things that he did.”

Indeed, the lawsuit also contends that Dayton exceeded his authority and violated state law when he directed the DNR to deny Twin Metals access to state lands to which the company had a right to enter. The suit cites Minn. Statute 93.25. Subd 2, which states that approval of state mineral leases requires a majority vote of the state’s Executive Council, of which the governor is just one member. Yet the governor’s directive had no affect on any existing or pending mineral leases, according to DNR Assistant Commissioner Barb Naramore.

Both Twin Metals and Franconia, a separate company working in cooperation with Twin Metals, do maintain state mineral leases in the area, totaling approximately 6,000 acres, but Dayton’s directive to the DNR had no affect on those leases nor on the companies’ right to access those lands. Nor did the governor’s directive affect any pending mineral lease applications, since neither company had submitted any additional applications at that point, according to Naramore. The directive did prompt the DNR to withdraw consideration of an access authorization agreement that Twin Metals had been seeking that would have given the company the right to access 3,536 acres of state land to assess their suitability for auxiliary mining facilities, but not for mineral exploration.

To date, the plaintiffs are not represented by an attorney. Tyler does have a law degree, but he has never practiced as a lawyer.

Whether their case has legal standing remains unclear. Generally, state courts frown on lawsuits based on political disagreements and require parties that bring suit to show direct injury that is more than just theoretical. Twin Metals, in its federal lawsuit, does have standing because its financial interests were undeniably harmed by the BLM’s decision not to renew mineral leases critical to its mine proposal. Tyler said he’s not concerned about the question of standing. “Every northeastern Minnesota resident who cares about their schools has standing,” he said.

The plaintiffs in the case contend that they have been injured by Dayton’s decision because it prevents the possible creation of about 800 new, high-paying jobs in the community, nearly 1,500 potential spin-off jobs and forfeits revenues to the state’s school trust. But those injuries are speculative and assume that the mine would ultimately be permitted and built had Dayton not urged federal officials to deny renewal of the critical mineral leases.

The Dayton administration should provide a response to the complaint later this month.