Lawsuits on mining leases near BWCA resist governance by memo and whim

Two more lawsuits were filed this week against the Trump administration’s about-face on Twin Metals Minnesota’s mineral leases at the edge of the Boundary Waters, bringing the total to three.

The documents bring some clarity and concision to the tangled procedural history of the leases’ renewals, cancellation and re-granting. And on mining’s threat to area businesses centered on paddling and quiet recreation, they present some compelling illustrations of potential job losses.

But perhaps their main value will be the focus they bring to this question: Has ours become a government of whim, or do the law, the rules and settled procedures still matter?

For several years now, ever since Twin Metals’ challengers began to gain traction in Washington for their objections to industrializing the edge of a prime American wilderness, the company has asserted that its leases along the South Kawishiwi River carry an automatic right of renewal.

Given that TMM’s renewal applications have undergone repeated review for potential impacts on the Superior National Forest and on waters downstream, that’s an odd position — at least, it’s odd if you make the common-sense assumption that the fact of review carries the possibility of rejection.

The company’s most recent leases lapsed in 2014, and by early 2016 a formal and extensive Interior Department analysis concluded that renewal was discretionary. That December, following further review and a public comment period, the department’s Bureau of Land Management and the U.S. Forest Service decided to turn TMM down.

And that would have been that, most likely, if not for Team Trump. It quickly announced a change of heart, scaled back a broad review of sulfide mining’s suitability in the area, and finally, on May 2, announced its decision to renew the leases, based on an Interior lawyer’s assertion of an error in the 2016 analysis.

The core argument of all three lawsuits — by Ely-area businesses and Northeastern Minnesotans for Wilderness, by three national environmental groups, and by Friends the Boundary Waters Wilderness — is that there’s simply no basis in law for undoing a formal decision of this kind, long after it was finalized, essentially by writing a memo.

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For 50 years, starting in 1966, the right to produce precious metals from the two parcels TMM now controls have been granted to a succession of mining companies, starting with the International Nickel Co. (INCO). Like most of these, TMM is the local face of foreign ownership; it belongs to the Chilean conglomerate Antofagasta, which mines copper all over the world.

There’s no disagreement that the original leases were issued for an initial period of 20 years, potentially renewable for three 10-year extensions.

Also, that they were granted during a period when environmental review of mining proposals was cursory at best, in comparison to procedures that grew up in the 1970s with enactment of the nation’s bedrock laws on assessing, limiting and mitigating industrial harm to natural resources.

And I think all parties might also agree that there’s no way in hell that a brand-new lease for massive ore extraction and processing at the edge of BWCA could be approved under today’s laws.

Administration of TMM’s leases is shared by the BLM, which is in charge of minerals extraction on federal lands, and the Forest Service, which controls surface activity within the Superior. According to the historical summary laid out in the lawsuit filed Monday by The Wilderness Society, the Izaak Walton League of America and the Center for Biological Diversity, there’s no indication that the Forest Service had any input in granting the 1966 leases.

But by 1986, when the initial term had expired and BLM got the first renewal applications, it felt it had to get a signoff from the Forest Service — and did so.

For reasons that aren’t clear, the term of the first 10-year extensions didn’t begin until July 1989; 10 years later, another pair of renewal applications came along and the agencies repeated their consultation, with the Forest Service taking more than four years to give its OK. The second renewal term started in November of 2004.

TMM applied for a third pair of renewals in October of 2012 and, the lawsuit says, BLM asked the Forest Service for its opinion; the service said they should be denied. BLM also asked Interior’s solicitor for an opinion on whether it had discretion to turn the company down; the answer, in the affirmative, came on March 8, 2016.

Some of the divergence between BLM’s original rejection and last month’s reinstatement is traceable to a dispute over whether TMM’s renewal rights are defined by the original 1966 lease, as the company prefers, or by language in the renewals the company signed. Here is a minimally turgid explanation of the issue from Marshall Helmberger in the Timberjay, on which I cannot possibly improve:

While the 1966 lease granted INCO and its successors a right to an initial 20-year term and three subsequent ten-year renewals, previous Interior Department lawyers concluded that such a right was contingent on the start of production during the initial period or during an initial time extension.

The BLM and the U.S. Forest Service granted lease renewals in 1989 and 2004, but those leases specifically indicate they provide preferential rights only. Such rights mean that the applicant has the right to be preferred over other applicants, but they don’t require federal government renewal.

Upshot: The government can’t just take TMM’s rights and give them to someone else. But after a lapse, it can decide to stop issuing any leases at all.

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Just as much is at stake for TMM if it loses its leases — the company claims to have spent $400 million developing a project that still remains in rough outline — other companies stand to suffer major losses if TMM’s vision of a new mining complex becomes reality.

This was a major point of last week’s lawsuit, filed by the Ely businesses and NMW. Examples:

• The Voyageur Outward Bound School, which employs 25 people year round and 100 during the summer, in order to bring more than 600 people into the wilderness for personal development.
• Piragis Northwoods Company, whose million-dollar annual payroll supports 18 year-round employees and 55 more in the summers to outfit and guide wilderness canoe paddlers.
• Women’s Wilderness Discovery, “the only female-owned, female-packed, female-guided professional outfitting and guide business in Ely,” which takes women from around the country into the wilderness all year.
• Northstar Canoes and Wenonah Canoe, both of which sell large portions of their output to outfitters and retailers in the Ely area.

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I can already hear the mining-at-any-cost crowd’s objections to what I’ve written here, so I’ll close by suggesting this thought experiment:

If TMM had been granted its third set of renewals, and continued to develop its mining project, and a post-Trump administration decided on a whim to revoke those rights by memo, ignoring all the standard rules and procedures — would that be an OK use of federal power?

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Here are PDFs of the lawsuits filed by the Ely businesses, the Wilderness Society and others, and Friends of the Boundary Waters Wilderness.