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WASHINGTON, D.C.— Twin Metals officials were hoping an appeal before a three-judge panel here could reinstate their claim against the Biden administration’s cancellation of two federal …
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WASHINGTON, D.C.— Twin Metals officials were hoping an appeal before a three-judge panel here could reinstate their claim against the Biden administration’s cancellation of two federal mineral leases key to their plans to build a copper-nickel mine south of Ely.
That D.C. Court of Appeals heard oral arguments in the case here on Monday in its review of a lower court ruling that had dismissed Twin Metals’ claims.
Yet the company appears to face better odds pushing for action under the incoming Trump administration as the judges appeared skeptical of the mining company’s legal arguments, appearing to agree with the lower court that its dispute with the government was contractual in nature, shifting jurisdiction to the federal Court of Claims.
While the federal government generally enjoys what is known as “sovereign immunity” from lawsuits, the 1940s-era Administrative Procedures Act, or APA, includes a partial waiver of that immunity in cases where federal agencies take actions affecting the statutory rights granted to the public that are deemed to be unsupported by law, science, or are unreasonable.
But when pressed repeatedly by Judge Harry Edwards to cite the statute or regulation that the government violated when it canceled the leases, Twin Metals attorney Lisa Blatt was unable to do so— and that failure raises the likelihood that the appellate judges will affirm the lower court ruling. That’s the ideal outcome from the perspective of Becky Rom, of Ely, who heads the national Campaign to Save the Boundary Waters. Rom, who was present for this week’s arguments in Washington, said she was pleased with what she heard. “I thought the judges had a good grasp of the case and asked good questions of both sides,” she said.
The impact of their eventual decision may matter little, however, given Donald Trump’s promise to reissue the leases as well as cancel a mineral withdrawal affecting a large portion of the Superior National Forest where the leases are located. Trump takes office officially next Monday, Jan. 20. Indeed, Blatt even suggested that the court hold any decision in the case until it sees what relevant actions might be taken by the incoming administration.
The federal mineral leases in question have been a political ping-pong ball over the past eight years, ever since the Obama administration denied a renewal of the leases in January 2017. The Trump administration reissued the leases in 2019 without proper environmental review and without the consent of the U.S. Forest Service which has a statutory right to consent or veto mining proposals within the Superior National Forest. The Biden administration’s Interior Department found that the Trump administration had acted improperly and eventually canceled the leases. The administration also reinstated a federal mineral withdrawal affecting about 225,000 acres in the Superior National Forest, including the area where the leases were located.
Twin Metals sued over the decision but lost at the district court level when the judge found that any rights that company claimed were derived from the terms of its leases, or contracts, with the government, not from statute or regulations. That meant any dispute over the language of the contract was a matter for the Court of Claims, not the civil courts which have jurisdiction over claims under the APA.
The decision does not prohibit Twin Metals from seeking damages for breach of contract in the Court of Claims under the Tucker Act, but the prospects for that seem doubtful as well. Federal lawyers have consistently argued that the company’s right to renewal of the leases was contingent on the commencement of mining operations within the initial 20-year term of the lease, which expired in the 1980s without any mining activity. Because of that failure and other regulations pertaining to federal hardrock mineral leasing, Interior Department lawyers have maintained since the Reagan administration that renewal of the 1966 leases was discretionary.
The Trump administration had reissued the leases in 2019 based on a controversial opinion by a Trump-appointed Interior Department legal counsel, Daniel Jorjani, who claimed that the federal government had no choice but to renew the leases, based on the terms of the original leases. That decision, according to the Trump administration, justified a perfunctory environmental review and the failure to seek forest service consent for the reissuance of leases. The forest service has maintained its opposition to the proposed Twin Metals mine since 2016, arguing that the risks of impacting water quality within the Boundary Waters Canoe Area Wilderness, located several miles downstream, and the difficulty of mitigating those impacts, made a sulfide-based copper-nickel mine too risky.