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

Apparently DNR is more interested in defending an erroneous process than it is in protecting the water.

Minnesota Court of Appeals
MinnPost photo by Peter Callaghan

“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. 

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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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