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Suit alleges improper intervention over Twin Metals leases

Marshall Helmberger
Posted 9/2/20

REGIONAL— A coalition of northeastern Minnesota businesses and environmental groups are alleging that two Minnesota congressmen unduly influenced the U.S. Forest Service to violate federal law …

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Suit alleges improper intervention over Twin Metals leases

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REGIONAL— A coalition of northeastern Minnesota businesses and environmental groups are alleging that two Minnesota congressmen unduly influenced the U.S. Forest Service to violate federal law when it agreed, under apparent political pressure, to waive its statutory right to approve or deny future mineral lease renewals in the Superior National Forest.
Those allegations, which cite Eighth District Congressman Pete Stauber and Sixth District Congressman Tom Emmer, are part of an amended lawsuit challenging the renewal of mineral leases for the proposed Twin Metals copper-nickel mine near Ely. Plaintiffs filed the latest complaint in federal court on Aug. 27 as part of an ongoing effort to reverse a Trump administration decision to grant Chilean copper giant Antofagasta perpetual rights to minerals located along the Kawishiwi River, just upstream from the Boundary Waters Canoe Area Wilderness.
The Obama administration had rejected the renewal request by Twin Metals back in 2016 after the Forest Service concluded that the proposed mine would pose an unacceptable risk of irreversible damage to the 1.1 million-acre wilderness. A federal statute dating back more than half a century gives the Forest Service the authority to approve or deny any mineral leasing proposal on the Superior National Forest.
The original draft lease renewal put out by the Trump administration in 2017 maintained the Forest Service’s authority under federal law, which meant that the Forest Service could have denied future lease renewals every ten years, when the lease was supposed to come up for renewal. Given the Forest Service’s previous conclusions about the dangers posed by the proposed sulfide-based mine, there was every reason to believe the agency could deny lease renewal in the future.
That possibility was causing Antofagasta representatives heartburn, according to Andrew Morley, an aide to Congressman Pete Stauber. “The company is getting increasingly concerned about the stipulations put forward by the Forest Service on the up or down vote they require for mineral lease renewals every ten years,” states Morley in a March 1, 2019, email to Robert MacGregor, a senior advisor in the Department of Agriculture, or USDA. The Forest Service is part of the USDA.
“Both Reps. Emmer and Stauber are increasingly concerned that these stipulations could deter Twin Metals from making further investment in the area and slow down economic development in turn,” Morley continued. “Do you mind setting up a quick call next week where we can recenter and get on the same page?” Other emails indicate that Congressman Emmer was also involved in the lobbying effort.
Plaintiffs in the case acknowledge that it’s hardly unusual for members of Congress to lobby officials throughout the executive branch. “What is unusual for a member of Congress is asking the Forest Service, in this case, to waive their authority forever, in violation of the law,” said Becky Rom, of Ely, who represents the Campaign to Save the Boundary Waters. Rom says the fact that Stauber and Emmer were pressuring the Forest Service to give up the authority demonstrates that they understood the law, which was enacted by an earlier Congress. Rather than changing the law, the plaintiffs argue that Stauber and Emmer unduly pressured the agency to give up powers granted to it decades ago. Neither Stauber nor Emmer is named as legally liable in the suit, which focuses on the obligations of both the Forest Service and the Bureau of Land Management, which oversees federal mineral leasing.
Among the concerns cited by plaintiffs is that the Forest Service has yet to provide any public statements explaining how the agency could have gone from denying renewal of the leases over serious environmental concerns, to agreeing to waive its legal authority to approve or deny leases in the future. “Between the draft and final there was a surrender of statutory authority without an explanation,” said Rom.
“Federal agencies are required by law to make reasoned decisions based on the merits— the facts, science, and the law, and this perversion of agency decision-making corrupts that process,” said Tom Landwehr, Executive Director of Northeastern Minnesotans for Wilderness and the Campaign to Save the Boundary Waters. “Time after time we have seen the Trump administration bend to the will of the rich, elite, and politically connected when it comes to the fate of America’s most popular wilderness. The administration has canceled important studies and hidden critical scientific information, it has short-circuited environmental review, and it has jumped every time this foreign mining company says, “hop”.
In waiving its rights, the Forest Service never withdrew its previous conclusions that the proposed mine posed an unacceptable risk to the BWCAW. That makes the agency’s reversal “arbitrary and capricious,” argue the plaintiffs, which is the legal standard that requires the courts to overturn agency decisions.
At the same time, plaintiffs argue that the Forest Service had an obligation to ensure that the environment was protected by placing stipulations into the lease agreement that would have addressed concerns the agency had previously expressed. The plaintiffs argue no such protections were added by the Forest Service, making its actions contrary to its previous conclusions, in 2016, that it was obligated to deny lease renewal for the proposed mine because it posed unacceptable risks.
The complaint further alleges that the Bureau of Land Management violated the National Environmental Policy Act, or NEPA, when it reissued the Twin Metals leases without conducting an Environmental Impact Statement.
For now, Twin Metals isn’t saying much about the amended complaint. “Twin Metals received a copy of the amended complaint yesterday and is currently reviewing its contents,” said spokesperson Kathy Graul. “Our answer to the amended complaint is due on Sept. 10, and we will file accordingly,” she added.

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