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Lawsuit seeks records from mining study

Marshall Helmberger
Posted 4/22/20

REGIONAL— Environmental critics of copper-nickel mining near the Boundary Waters believe a trove of federal documents could greatly bolster their case for blocking a proposed copper-nickel mine …

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Lawsuit seeks records from mining study


REGIONAL— Environmental critics of copper-nickel mining near the Boundary Waters believe a trove of federal documents could greatly bolster their case for blocking a proposed copper-nickel mine just upstream of the Boundary Waters Canoe Area Wilderness. And that’s why they’re watching an ongoing lawsuit by the Wilderness Society with keen interest.
The suit, filed under the Freedom of Information Act, or FOIA, is an attempt to finally wrest free an environmental assessment, or EA, and related documents, developed by the U.S. Forest Service that explored the potential environmental and economic impacts of copper-nickel mining on about 234,000 acres of the Rainy River watershed within the Superior National Forest. The two-year study, begun in January 2017, was supposed to help the Forest Service and the Bureau of Land Management decide whether a 20-year withdrawal of federal mineral leasing on the identified acres was warranted. The study was nearly complete when the Trump White House abruptly canceled it on Sept. 6, 2018. Since then, the administration has defied multiple requests by Congress, environmental groups, and, most recently, the Minnesota Department of Natural Resources, for the release of the EA and supporting documentation.
The Wilderness Society, a national environmental group, made its request on Sept. 11, 2018, for all documents and correspondence related to the development of the study. Nine months later, after receiving no response from the administration, the group’s lawyers filed suit in federal court, which, per federal rules, prompted negotiations between the parties over the release of documents before a judge becomes actively involved. On Sept. 27, 2019, more than a year after the Wilderness Society’s initial request, the Forest Service released 48 heavily-redacted pages of records, while withholding 120 additional pages as privileged. This past November, the Forest Service released an additional 659 pages of heavily redacted documents. That included the 60-page EA itself, which was redacted in its entirety, except for the cover page.
Wilderness Society lawyers believe the extensive redactions are improper and that it appears the White House is using claims of privilege to hide their behind-the-scenes political manipulation of a process that is supposed to play out in the open.
“Transparency remains a really significant challenge in the Trump administration’s continuing efforts to roll back environmental initiatives generally,” said Alison Flint, attorney for the Wilderness Society. “But this case does seem unique, in that their relentless efforts to keep this taxpayer-funded information from the light of day, certainly suggests they have something to hide.”
Politics at play?
While federal decision-making is supposed to be based on “substantial evidence,” there is little question that political calculations occasionally play a role as well. In this case, however, environmental critics of Twin Metals contend that the decision was not just partially political, but entirely so, and they believe it was directly at odds with the evidence developed as part of the two-year study. If so, the release of that information could help build their case in opposition to the Twin Metals mine.
President Trump has made it clear from early in his administration that he hopes to tip Minnesota into his win column as part of his 2020 re-election bid, and he has made mining-friendly northeastern Minnesota a key part of that electoral strategy. Trump made that explicit during a June 20, 2018 rally in Duluth when he announced that he would be allowing copper-nickel mining in the Superior National Forest to move forward.
While that announcement prompted cheers from his supporters, it didn’t immediately halt action on the two-year withdrawal study. In fact, just over a month later, on July 25, 2018, Bob McFarlin, the public spokesperson for Twin Metals, expressed his concern that the Forest Service intended to complete the study. “I wanted to report on the meeting the Twin Metals team had with Glenn Cassamassa of the U.S. Forest Service in D.C. earlier today. It was extremely disturbing,” wrote McFarlin in an email to Jeff Small, an aide to Rep. Paul Gosar, of Arizona, who also serves as executive director of the mining-friendly Congressional Western Caucus. “Glenn was very clear that USFS/Dept. of Ag. has no intention of rescinding the withdrawal proposal per President Trump’s statement in Duluth on June 20. Cassamassa called the President’s statement merely an expression of preferred ‘policy direction’ and not a specific directive to the agency or Secretary Purdue. He stated that they intend to keep the Secretary’s commitment to Cong. McCollum and complete the proposal’s Environmental Assessment before turning over to Interior for a decision.”
McFarlin was referring to Agriculture Secretary Sonny Purdue and his May 25, 2017, promise to Minnesota Fourth District Congresswoman Betty McCollum that he would not make any decision on the proposed withdrawal until the EA was completed. His comments were part of only a handful of unredacted emails obtained by the Wilderness Society as a result of its FOIA request.
Small responded to McFarlin’s email, forwarding the message to Doug Crandall, legislative affairs director with the Forest Service. “Given the President’s announcement in Minnesota, if the below email is true Chairman Gosar and other Members are going to be pissed.”
McFarlin is no longer employed by Twin Metals, but current company spokesperson Kathy Graul stated that Twin Metals is not opposed to the release of the information developed by the Forest Service. “We assert that the most responsible way to assess the Twin Metals project is through a comprehensive environmental review of the specifics of our proposed underground copper, nickel, cobalt and platinum group metals mine,” stated Graul. “This will be accomplished in the coming years in conjunction with state and federal agencies and tribal governments, and through multiple public input opportunities. Twin Metals is committed to an open and thorough scoping and environmental review process. We anticipate cooperation between the agencies that oversee our proposed project as we move forward.  We welcome the extensive analysis of any data available and relevant to our project proposal that will come through the well-established science and law-based environmental review process.”
Officials unaware
Even as the political pressure to halt the release of the study grew behind the scenes, Forest Service officials continued to move ahead. In a Sept. 1, 2018, email, Matthew Judd, minerals project coordinator on the Superior National Forest, forwarded documents related to the study to both the Forest Service’s regional and Washington, D.C. offices for review, with all feedback due by Sept. 18.
The email points to the fact that officials involved in the review appeared unaware that the study was slated for cancellation within days.
It was just five days later, on Sept. 6, 2018, that the Forest Service Regional Forester Kathleen Atkinson, released a statement canceling the study. “After a careful 15 month review, including extensive public input, the Forest Service has enough information to determine a withdrawal is not needed,” wrote Atkinson in a letter to the BLM. “The laws that govern mineral development within the Rainy River watershed provide considerable discretion as to whether to allow new mineral leases that will be guided by the Superior National Forest’s Land Management Plan. Future lease offerings can adequately be evaluated and regulated on a case-by-case basis without invocation of a 20-year withdrawal.”
Yet if the Forest Service truly did have “enough information” to determine a withdrawal wasn’t needed, they aren’t sharing it. Courts have ruled that federal agencies do have the right to withhold what is known as “deliberative” information, which includes internal comments on the various factors that might go into a decision. They can also typically withhold reports and studies that remain in draft form, but those documents become public once finalized. Robert Lueckel, acting regional forester for the Eastern Region of the U.S. Forest Service, in an April 13 letter to the Minnesota Department of Natural Resources relies on such exceptions in declining to release any data related to the study to the state agency. “Not only are the incomplete data and documents deliberative pre-decisional materials, but also reliance on potentially irrelevant and unreviewed data and analyses will only hinder our collective efforts to develop a sound environmental analysis for the current proposal,” wrote Lueckel.
Yet Flint, the Wilderness Society’s attorney, takes issue with the nature of some of the claims made by the administration. For one, the Forest Service released two copies of the withdrawal EA, both fully redacted except for the cover sheet. One is clearly labeled draft at the top, while the second copy is not labeled, leading Flint and others to assume it may be the final version.
What’s more, a Forest Service press release announcing the cancellation of the withdrawal study indicates that the study included “a mineral resources report, a biological and economic assessment, and potential impacts to water resources, wilderness areas, and cultural resources.”
If the Forest Service made a decision based on such reports, Flint argues, those reports would clearly be public information under FOIA. Becky Rom, chair of the Campaign to Save the Boundary Waters and a retired lawyer, agrees. “The reports are not privileged,” she said. “They are not deliberative. These are all taxpayer-paid-for documents that we the taxpayers own and they all relate to the impact.”
Flint argues that the basic scientific findings and conclusions or descriptions that might appear in a typical EA, don’t fit the definition of “deliberative” information. “This is resource data,” said Flint, referring to the EA itself. “It’s possible that there are small portions of the EA that could be legitimately withheld, but not all 60 pages. The inference we all have to make is that the study raises serious issues. This was prepared by Forest Service resource experts, and it could go against the administration’s plans to approve a mine.”
If so, that’s information that critics want to see released before the federal government proceeds with scoping on the Twin Metals environmental review.
Having exhausted their efforts to negotiate a release of information, Flint says her organization will likely take their claims to the judge and seek summary judgment to compel the release of the information they’re seeking. Flint hopes that briefing could go to the judge by summer, with a decision perhaps coming by the end of the year. “I don’t know whether that’s optimistic or not,” she said.


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