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In the PolyMet permitting process, whose side is the DNR on anyway?

MinnPost photo by Peter Callaghan
Minnesota Court of Appeals

“Is the attorney general representing the Minnesota Department of Natural Resources in the PolyMet cases?” 

It was a casual question from another attorney in the Carver County Attorney’s Office. I didn’t know the answer, but a little bit of research showed that the attorney general is barely, if at all, involved in representing our DNR in these cases. We were surprised, to say the least.

The Minnesota Court of Appeals’ decision last week — reversing key PolyMet permits and ordering public hearings about the safety (or lack thereof) of the company’s proposed design — is extraordinary in its conclusion that the DNR has not followed the law. In such a situation, one might contemplate doing everything in one’s power to become trusted again by the courts and the public. Personally I would be mortified that the court felt it necessary to remind me that “the DNR has both the power and the duty to protect all of Minnesota’s natural resources, including water.”

Instead, DNR and its lawyers appear intent on challenging the court’s order and resisting the hearings the court has deemed necessary. Apparently DNR is more interested in defending an erroneous process than it is in protecting the water. 


I’m a government lawyer; I must confess that I am more and more mystified with the approach of DNR in this whole process. One of the things that caught my attention in the court opinion was the list of attorneys. The attorneys doing the work for DNR are from Holland & Hart, a huge out-of-state private law firm which markets itself as defenders of mining companies. 

The Holland & Hart engagement is troubling for a couple of reasons. First, let’s consider the cost. Attorneys at a firm like this bill at $300-$800 per hour. The amount we taxpayers are shelling out for this has to be mind-boggling. According to the state Office of Management and the Budget, we are talking about millions of dollars in FY2020 alone. 

Thom Haines
Thom Haines
Even more troubling, however, is the kind of advice the DNR is apparently receiving. The attorney general’s office is staffed with public servants with careers worth of experience representing our state agencies and who understand that the ultimate client is the people of Minnesota. Holland & Hart represents mining companies as they buy and sell each other and as they seek to acquire regulatory approvals for their projects. 

I understand why a company would want their representation; why though, would the DNR want to align itself so closely with the mining industry it is supposedly required to regulate? 

DNR erred by resisting transparency in the past, and by failing to have court hearings about the adequacy of the PolyMet proposal. If our own public attorneys were in the room, I assume that, instead of doubling down on this failed and expensive approach, they’d be considering a different route now — one that signals to the Court of Appeals and all of us that the State of Minnesota is on the side of the people. 

That’s not what Holland & Hart does. It might be time to fire them and move on.

Thom Haines is an Assistant Carver County Attorney and a faith-based global justice advocate out of Mayflower United Church of Christ in Minneapolis.  He is an executive producer on the film “Gold Fever,” which looks at what happens when a gold mining company comes to a village in Guatemala. 

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Comments (11)

  1. Submitted by Paul Udstrand on 01/24/2020 - 10:19 am.

    Thanks for the insight Mr. Haines. The tendency in the US of regulatory agencies being captured by those they’re supposed to regulate is well documented. Still, I think the extent to which the MN DNR has clearly decided to represent the mining industry rather than public resources has taken some of us by surprise. Specially in such a high profile case like this which was bound to invite a higher level of scrutiny.

    • Submitted by Alan Muller on 01/31/2020 - 10:46 am.

      Very true. But has it ever been the case that the DNR Lands and Minerals shop has not been part of the mining industries?

  2. Submitted by Bill Schletzer on 01/24/2020 - 10:43 am.

    I think it might be time to examine of some of these DNR employees should be subjected to criminal charges. I’d like to see the banking activity of the document destroyers and avoiders.

  3. Submitted by Ralph Wittcoff on 01/24/2020 - 01:32 pm.

    The hiring of this law firm at great expense to Minnesota taxpayers unequivocally illustrates that the DNR (and the MPCA) are working on behalf of the international mining corporations to destroy the ecology of Minnesota, of which we have been so proud. We need a DNR which will protect our natural resources, the most valuable of which is fresh water. And an MPCA which will prevent catastrophic pollution.

  4. Submitted by John Gappa on 01/24/2020 - 01:42 pm.

    Mr. Haines raises excellent issues. It was revealed at the PolyMet hearing this week in Ramsey County District Court that this outside legal representation by mining lawyers was requested of then Attorney General Swanson by then DNR and MPCA Commissioners Landwehr and Stine back in 2015. The Commissioners argued that they wished to begin developing a legal strategy in advance of anticipated lawsuits on the PolyMet permits. Since that time, the State has incurred millions in outside legal fees per year.

    Important to know is that the State’s contract with Holland and Hart is up for renew this February. If you are as outraged by this agreement as many of us are, call or write Governor Walz and Attorney General Ellison and ask them to let the Attorney General’s office represent the State, as is standard practice.

  5. Submitted by Frank Phelan on 01/24/2020 - 07:41 pm.

    This is absolutely shocking.

  6. Submitted by Mark Voorhees on 01/25/2020 - 07:13 am.

    Thanks for the article and it will promote me to write to both Ellison and Walz.

  7. Submitted by joe smith on 01/25/2020 - 08:33 am.

    The DNR is on the side of the law! They are an independent group looking at the permitting process to see if Polymet passes the standards. If they do not pass standards, do not permit them, if they pass standards, they get permits. Making this an emotional case seems to be the anti mining folks game plan. It is a case of law, not emotion.

  8. Submitted by richard owens on 01/25/2020 - 10:00 am.

    OUTRAGEOUS.

    “The attorneys doing the work for DNR are from Holland & Hart, a huge out-of-state private law firm which markets itself as defenders of mining companies. ”

    Calling MN Attorney General Keith Ellison!

    Minnesota Taxpayers have standing to stop this obvious conflict of interests. The DNR budget is not a mining lawyer slush fund.

    And while the AG’s office pursues some honesty in State government, why not also review the MN laws that we understand now were written by the very mining interests they were meant to regulate.

    It would benefit Minnesota taxpayers much more to SIMPLY PAY TO CREATE DECENT JOBS in service to the protection and enjoyment of the pristine beauty of NE MN.

    The rich and powerful interests should not be given such advantages, especially when most Minnesotans are helpless to protect our irreplaceable heritage?

  9. Submitted by Karen Kormann on 01/27/2020 - 01:02 pm.

    Thank you Thom Haines. And thank you MinnPost.

    How can the public best use this information to demand transparency
    and environmental safety?

  10. Submitted by Dennis Wagner on 01/28/2020 - 12:08 pm.

    Not to be contradictory, one might hire a law firm specializing in mining business because they know the, corporate mining side of the business, and the DNR knows the regulation side of the business. However, it would appear that the DNR should be fully capable of using DNR/state of MN lawyers on staff to take care of both sides of the issues that arise. So who is the guy that is suppose to explain, why they are using the $M for outside advice?

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