Defeat of mining near Boundary Waters is a rare victory for the value of place

Thursday’s decision to deny Twin Metals Minnesota  a renewal of its lapsed mining leases along the Kawishiwi River was big news, as it likely dooms a massive industrial development at the edge of the Boundary Waters wilderness.

What’s huge news, however, is the decision by the U.S. Forest Service to seek a broader ban on mining within 234,000 acres of Superior Forest Lands that lie outside the million-acre wilderness zone.

This would correct an enduring anomaly in the management of federal lands in the northern canoe country: While matters like snowmobile routes, cellphone tower placement and timber harvests are strictly regulated (and hotly contested), the virtual certainty of major, permanent damage from precious-metals mining has been kicked down the road for case-by-case consideration some other day. By somebody else.

Yes, I know, such “withdrawals” of public lands by the Secretary of Interior are only good for 20 years; only Congress can put a place permanently off-limits.

Easily renewed, not easily reversed

But withdrawals are easily renewed and not so easily reversed, either administratively or by Congress, as shown by the history of failed congressional attempts to un-protect the heart of the Arctic National Wildlife Refuge from oil drilling.

And of course it is far from certain that this withdrawal can be achieved, let alone soon. Though Donald Trump, his advisers and his Cabinet nominees have said less about mining for copper and nickel than they have about drilling for oil and gas, it’s reasonable to assume the new administration will hold less sympathy for wilderness values when they conflict with business opportunity.

But withdrawal decisions are not whims, and now a process of analysis and rule-making has begun, along with a record of decision-making that will be subject to judicial review. This  record sets the withdrawal deliberations on a foundation of fact and reason, and a move to derail them or undo their outcome in peremptory fashion risks a court finding that the undoing was arbitrary, capricious or both.

(Not incidentally, that record includes more than 30,000 public comments, with mining opponents outnumbering advocates by a wide margin. Also not incidentally, the opponents included Gov. Mark Dayton, who has ordered state agencies to halt certain activities beneficial to Twin Metals, and former Vice President Walter Mondale.)

It also seems possible, at least to me, that as the incoming administration picks its battles with its various foes in Congress, as well as many Republican leaders and nearly all Democrats, and with a newly energized collaborative of environment-minded activists … well, this foreign-owned mining thing up in the sticks (somewhere near Canada?) might just drift down the priority list.

Timetable is unclear

The official timetable for action on a withdrawal is less than clear beyond the initial stages, which include publication of a required notice in the Federal Register, followed by a 90-day public comment period, followed by who knows what. The announcement also includes a two-year “time out” on new mining-related activity in the area while the review goes forward.

It is not difficult to imagine the full process leading to a withdrawal decision taking even longer than that, even if things go smoothly, and TMM has already filed a lawsuit seeking a court endorsement of its view that its entitled to an automatic renewal of its leases.

Mining opponents have moved for dismissal of that action, and so have the government agencies, but the first hearing on those motions is not scheduled until the end of April.

BWCA: a gem — and an economic engine

In announcing the decision, Agriculture Secretary Tom Vilsack and Interior Secretary Sally Jewell gave interestingly equal treatment to the Boundary Waters as a wilderness gem and as an economic engine, thanks to the tourism it drives each year.

Vilsack: The Boundary Waters is a natural treasure, special to the 150,000 who canoe, fish, and recreate there each year, and is the economic life blood to local business that depend on a pristine natural resource. I have asked Interior to take a time out, conduct a careful environmental analysis and engage the public on whether future mining should be authorized on any federal land next door to the Boundary Waters.

Jewell: There’s a reason that the Boundary Waters is one of the most visited wilderness areas in America: it’s an incredible place. Today’s best available science is helping us understand the value of the land and water and potential impacts of development in places like the Boundary Waters. This is the right action to take to avoid irrevocably damaging this watershed and its recreation-based economy, while also taking the time and space to review whether to further protect the area from all new mining.

Vilsack’s department includes the U.S. Forest Service, which manages surface activity in the national forest; Jewell’s includes the Bureau of Land Management, which has authority over the mineral deposits. The Forest Service has taken the lead in reviewing challenges to the TMM project, which led to yesterday’s joint announcement and shared conclusion that

The two leases, initially issued in 1966 and most recently renewed in 2004, would have allowed for the mining of copper, nickel and associated minerals from the leased lands. However, no mineral production has occurred on either lease since the original date of issuance.

In not consenting to the lease renewals, the Forest Service cited the potential risk of environmental contamination of the surrounding watershed as a key concern. The two leases are located directly adjacent to and within three miles of the BWCAW, respectively.

It is well established that acid mine drainage is a significant environmental risk at sulfide ore mine sites like the one proposed for these leased lands and in a water-based ecosystem like the Boundary Waters because contaminated water could have dramatic impacts to aquatic life, sport fisheries, and recreation-based uses and communities.

In response, TMM issued a statement saying it was “greatly disappointed” in the lease-renewal denial, which it contends is illegal. It says the company is “committed to progressing our project forward and will continue to pursue legal avenues to protect our contractual mineral rights.”

The leases in question were issued by the federal government in 1966 with a right of unlimited, successive 10-year renewals. The leases were renewed by BLM without controversy in 1989 and again in 2004. Twin Metals filed the current lease renewal application in mid-2013. Twin Metals has invested more than $400 million to date in acquisition, exploration, technical, environmental, and other project development activities. If not overturned, the decision to deny renewal of the leases threatens to deprive northeastern Minnesota of the potential for hundreds of future jobs and billions of dollars in environmentally-responsible economic development.

Discretion underscored

If the notion of a lease with ” a right of unlimited, successive” renewals seems a little alien to you  — how is that a lease instead of a purchase?  —  let me explain without going way into the weeds that the original leases granted in 1966 contained language granting a right to automatic renewals. However, the last leases granted in 2004 did not, according to the Interior Department’s solicitor, Hilary Tompkins.

She prepared an opinion last March addressing the company’s claims and concluding that “Twin Metals Minnesota does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application” based on the plain language of the leases TMM signed in 2004.

That opinion set the stage for yesterday’s denial of new leases, but in no way foreshadowed the decision to proceed toward withdrawal of the national forest lands from all mining, potentially forever.

And while the decisions are being hailed, predictably, as a “major victory for environmentalists,” I think that misses the point by a wide margin, and for two reasons.

Plenty of northwoods residents and visitors who would never consider themselves environmentalists — and many of whom support iron mining in northern Minnesota, and even the PolyMet copper-nickel project across a key watershed from TMM’s project — oppose mining along waters that flow to the Boundary Waters, Voyageurs National Park and beyond.

Also, we have plenty of taxpayers who may or may not love the canoe country but hate the idea of being on the hook forever if another mining operation should start up and shut down without being held to its cleanup responsibilities.

Ultimately it’s hard for me to see this as primarily a victory for people of any kind anywhere. What’s special is that it’s a triumph of the rarest kind these days, in which the value of keeping a public place intact is held to outweigh the private profits somebody wishes to extract.