Suing the governor

A recent lawsuit filed against Gov. Mark Dayton by supporters of the proposed Twin Metals copper-nickel mine should be dismissed for the meritless action that it is.

The case improperly sues the governor of the state of Minnesota for the perceived effects of decisions made by federal officials. It was the U.S. Bureau of Land Management, at the behest of the U.S. Forest Service, that denied the mineral leases critical to the Twin Metals project. These are the same agencies that now propose to withdraw 234,000 acres from the federal minerals program. The governor may have expressed his support for those decisions, even lobbied for them, but the governor has the same First Amendment right to petition or lobby the government as the rest of us.

The suggestion that Dayton may have been influenced by constituents into taking the position that he did is hardly “collusion” as the plaintiffs allege. As citizens, we regularly hope that our politicians listen to our concerns and take them seriously enough to affect their decision-making.

Indeed, supporters of the mine proposal have been meeting regularly themselves with elected officials, urging them to support their position on the mine. Should mine opponents sue U.S. Rep. Rick Nolan for “colluding” with mine supporters on Twin Metals’ behalf should he succeed in getting the Trump administration to reverse the withdrawal process or restore the mineral leases? We certainly hope not.

It’s frightening to think that intelligent people would view their own efforts to affect policy as legitimate, while seeing similar efforts by the other side as somehow illegal, improper, or underhanded. This lawsuit is not just dangerous—it is a reflection of the community division that this entire issue has sparked in Ely.

Among other things, the case alleges that the governor exceeded his authority by directing the Department of Natural Resources to deny a request by Twin Metals to enter state lands for testing related to their mine planning. As evidence, the plaintiffs cite the requirement that mineral leases must be approved by the full Executive Council, of which the governor is only one member. But no mineral leases were affected by Dayton’s decision, so the statute is irrelevant to the matter.

The DNR clearly has the authority to deny commercial access to state lands and the governor has the authority to direct the DNR Commissioner on how to proceed with such requests.

Their claims regarding school trust lands are just as meritless. The statute at issue gives state officials broad discretion on how to pursue financial return on school trust lands.

Regardless, the broader issue is that the plaintiffs have failed to demonstrate that they have been harmed in any concrete way by the governor’s opposition to Twin Metals.

If there were a legitimate legal action in state court over this matter, it would be Twin Metals’ case to pursue, because they are the only party that can claim a concrete injury from the governor’s actions. Their decision not to pursue such a case speaks volumes.

One of the first tests for any legal action is the issue of “standing,” which essentially means that any litigant must be able to show they have suffered, in the words of the U.S. Supreme Court, “an injury in fact, i.e., a concrete and particularized, actual or imminent invasion of a legally protected interest,” as a result of another party’s action or inaction.

Cases are routinely tossed from both state and federal courts for exactly this reason, and this case should be another such instance. Being unhappy with a decision is not an injury in the legal sense, and the purported injuries laid out by the plaintiffs in this case are speculative and don’t qualify as legally-protected interests.

As we have reported on more than one occasion, the Twin Metals mine has always been a highly speculative venture, because its costs of start-up and production are high and its proximity to the Boundary Waters virtually guarantees a knock-down drag-out political battle that could go on for decades. Missing out on pie-in-the-sky jobs or speculative state tax revenues twenty years down the line doesn’t constitute the kind of harm that gives one legitimate entry to the legal process.

We have too many meritless cases in the courts today. We don’t need another.