News outlets challenge PolyMet’s attempt to block recordings of court hearing

UPDATE (1:45 p.m.): 

Ramsey County District Court Judge John H. Guthmann ruled Friday afternoon that reporters could take photographs and record audio and video during the hearing next week on a disputed water permit for PolyMet Mining.

The order can be found here: https://minnpo.st/2RrjL4b

Original story below:

Two news organizations on Friday objected to PolyMet Mining’s request for a ban on reporters taking photographs and recording audio during a hearing next week on a disputed water pollution permit granted by state regulators.

In a filing submitted to Ramsey County District Court, an attorney for the Star Tribune and MinnPost wrote the public has “inherent interest” in learning about how the case is resolved in “taxpayer-funded courts,” and that such recordings would provide greater transparency and ensure accurate reporting.

Public interest “is at its zenith where the controversy involves broad public concerns that could have lasting effects on the local environment and population, such as whether water pollution permits were mishandled in approving a mining permit,” the filing says.

On Wednesday, PolyMet had asked for the court to block recording equipment, in part because it could “increase the chance that the proceedings … will be misconstrued by the media and in front of the court of appeals.”

“In this digital age, snippets of audio recordings can easily be cherry-picked and publicized without context,” says a filing made by the company’s attorneys.

The hearing scheduled for Tuesday in Ramsey County District Court is the start of a rare investigation into whether the Minnesota Pollution Control Agency hid concerns the federal government had with a draft of a crucial PolyMet permit. The Environmental Protection Agency warned the permit would violate the Clean Water Act, but ultimately did not veto the MPCA’s final version. PolyMet needs the permit to build a copper-nickel mine near Hoyt Lakes.

The judge, in this case John H. Guthmann, can generally choose whether to allow audio recording and photography. A court rule does say individual witnesses must not be recorded if they object before giving testimony. Two did object: Brad Moore, executive vice president at PolyMet who once served as MPCA commissioner, and Christine Kearney, PolyMet’s environmental site director.

But PolyMet asked the court to bar any recording of the hearing, saying it could invite grandstanding by witnesses or lawyers in the proceeding. Short of that, the company asked the court to “severely restrict” audio and visual recordings. For instance, the filing says the court could limit recording to include only witness testimony, not arguments by attorneys for the company or others.

In the objection by MinnPost and the Star Tribune, attorney Leita Walker said courts have allowed audio and visual coverage in other high-profile cases despite similar concerns, including the sentencing of former Minneapolis police officer Mohamed Noor, who was convicted of third-degree murder after he shot and killed Justine Ruszczyk Damond.

Recording audio and taking photos can ensure accurate notes — as opposed to reporters writing quotes by hand — and provide a full picture of the proceedings, Walker wrote. “A picture, so the saying goes, is worth a thousand words, and a (court) transcript is no replacement for the tone of voice, body language, and facial expressions that only in-person observation or recording equipment can fully capture,” the filing says.

Walker also wrote PolyMet’s assertion that audio recording can be “cherry picked” suggests the company and its attorney “not only disrespect the press but fundamentally misunderstand their role in helping the public understand issues of public interest and concern.”

The evidentiary hearing in the PolyMet case that begins Tuesday is expected to last between five and 10 days. Top former and current MPCA and EPA officials are planned to testify.

The saga began when a host of environmental groups and the Fond du Lac Band of Lake Superior Chippewa sued the MPCA over the water permit, known as a National Pollutant Discharge Elimination System Permit. 

After the EPA’s concerns were discovered, in part through newly released public records, a judge in the Court of Appeals found the groups had raised “substantial evidence of procedural irregularities” in how MPCA handled the water permit and kicked the issue to district court for the investigation. The PolyMet opponents and the MPCA took no position on the requests by MinnPost and the Star Tribune for audio and visual recordings at the hearing.

After PolyMet’s initial objection, several other news organizations on Thursday submitted requests to film, record or photograph the hearing: KSTP-TV, WCCO-TV, Minnesota Public Radio and the Duluth News Tribune.

PolyMet asked the judge to deny those notices as well, adding in a new court filing the requests by those news organizations were too close to the proceedings and therefore “untimely.” The company cited a rule that requires media to submit a request to film or record court hearings “at least” seven days ahead of time.

In challenging PolyMet’s initial request, MinnPost editor Andy Putz said the outlet’s goal in covering the hearing “is to make sure the public gets a clearer picture of what happened, and our purpose in seeking to record the proceedings is to make sure our reporting is as accurate as possible. 

“The notion that doing so will somehow render coverage less accurate defies all common sense, and we’re confident the court will see it that way too,” Putz said.