REGIONAL— The U.S. Forest Service has, once again, staked out its firm opposition to the proposed Twin Metals mine near Ely.
The federal agency’s latest statement on the matter comes in a Dec. 18 letter issued in response to ongoing litigation surrounding federal leases once held by Twin Metals and its parent company, the Chilean mining giant Antofagasta. The D.C. Court of Appeals in Washington will hear oral arguments on Monday, Jan. 13, as Twin Metals hopes to reverse a lower court ruling that rejected their claim that the leases be renewed.
Among several arguments, Twin Metals claims that the Bureau of Land Management, or BLM, erred when it issued its most recent cancellation of two Twin Metals leases because it failed to consult with the U.S. Forest Service. Under federal law, the forest service has the right of consent for any mining proposals on the Superior National Forest. The forest service had previously exercised its veto of the Twin Metals proposal back in 2016, which led to the non-renewal of the leases in the waning days of the Obama administration. The forest service has never reversed that decision.
In response to Twin Metals’ claim, the BLM argued that it had sufficient authority to cancel the leases without bringing the matter to the forest service. Even so, at the request of the BLM, the forest service submitted a three-page letter that once-again spelled out the reasons behind the agency’s opposition to the mine as well as its rationale for its 2023 application for a 20-year mineral withdrawal affecting 225,000 acres of the Superior National Forest, including the area once covered by the leases.
“The record for the 2016 lease consent determination and 2023 withdrawal application demonstrate that development of these mineral resources presented an unacceptable, inherent risk of serious and irreparable harm to the BWCAW natural resources,” states the Dec. 18 letter, signed by Regional Forester Antoine Dixon. “It has been thoroughly documented that the proposed mineral leasing is not a compatible use within the watershed in such proximity to the wilderness and that the forest service’s withholding of consent to the issuance of leases…would be inconsistent with the record.”
Dixon continued: “Mineral leasing could cause changes to terrestrial or aquatic habitat function due to surface destruction, noise/light/air pollution, and modification of streams, lakes, or wetlands… Changes to water quality could potentially result in adverse changes to the biological integrity of aquatic communities and to sensitive species. This in turn could adversely affect the wilderness character of the BWCAW, public use and enjoyment of water and aquatic resources, and the ability of tribes to exercise treaty rights.”
Dixon cited the previous record of decision, which raised concern about the ability of any mining company to guarantee long-term containment of toxic discharges, noting that “hardrock mining would likely produce waste rock that would require management for centuries or in perpetuity.”
Back and forth litigation
Monday’s oral arguments will mark the latest skirmish in a nearly decade-long legal battle over the federal mineral leases. This latest go-round is an appeal by Twin Metals of a late 2023 ruling by U.S. District Judge Christopher Cooper, who found that the court lacked jurisdiction to address Twin Metals’ claims that the federal government had failed to abide by lease terms established with the International Nickel Co., or INCO, when the leases were originally issued in 1966. Twin Metals gained control of the leases more than 15 years ago through a series of strategic ventures.
However, Judge Cooper found that the company’s claims amount to a contract dispute with the federal government, which are not subject to review on the kind of procedural grounds that Twin Metals is alleging under the Administrative Procedures Act. Instead, the judge found that Twin Metals’ claim of contractual non-performance can only be addressed by the U.S. Court of Claims, which has the authority to award potential damages.
The leases, originally canceled by the Obama administration back in 2016, have been the subject of litigation ever since. Twin Metals filed suit originally, hoping to reverse the cancellation of the leases, which the company has proposed to use for an underground copper-nickel mine about ten miles south of Ely. When the first Trump administration reinstated the leases, opponents of the proposed mine filed suit, but that case was eventually rendered moot when the Biden administration reversed the Trump administration’s decision and rescinded the leases. While Trump has promised to restore the leases once he takes office again later this month, the forest service’s continued opposition to renewal of the leases, which continued throughout the first Trump administration, could still prove to be a major legal hurdle.