WASHINGTON, D.C.— Federal lawsuits that could block completion of a land exchange between the U.S. Forest Service and PolyMet Mining would be wiped away by Congress should a provision introduced …
WASHINGTON, D.C.— Federal lawsuits that could block completion of a land exchange between the U.S. Forest Service and PolyMet Mining would be wiped away by Congress should a provision introduced Thursday by Sen. Tina Smith be enacted into law.
Smith is proposing her measure as an unrelated rider to a major defense policy bill that’s expected to come before the Senate soon. It’s similar to a stand-alone bill introduced late last year by Rep. Rick Nolan. That measure passed the House by a wide margin late last year, so once reconciled by a House-Senate conference committee, the measure could well be sent to President Trump for his signature.
PolyMet officials lauded Smith’s action. “We’re supportive of the amendment,” said company spokesperson Bruce Richardson. “The Forest Service, one of the co-lead agencies in the extensive environmental review of the project and land exchange, approved the land exchange in its Record of Decision, determining that the exchange was in the best public interest.”
But Smith’s action drew stark criticism from environmentalists as well as Smith’s DFL primary challenger Richard Painter, a government ethics lawyer who has made transparency and accountability major issues in his campaign.
“Regardless of how you feel on the merits of sulfide mining near waterways, the land swap’s only purpose is to avoid federal regulations,” said Painter.
The land exchange was, in fact, engineered to get around the provisions of the Weeks Act, a 1911 law that authorized federal acquisition of certain property. Large portions of what is now the Superior National Forest were acquired under the act, including the land that PolyMet wants to mine. A provision in the Weeks Act prohibits strip mining on lands acquired under that law, so the U.S. Forest Service and PolyMet agreed to conduct the land exchange to accommodate PolyMet’s desire for an open pit mine.
“Congress passed a law, but PolyMet didn’t want to comply with the law,” said Painter. “This is simply an attempt to get around the law and that’s extremely offensive.”
The land exchange would swap about 6,650 acres of federal land at the site of the proposed open pit mine for about 6,690 acres of other lands scattered throughout the Superior National Forest. Supporters of the exchange argue it’s a good deal for taxpayers because the land being acquired is more accessible and has more lakeshore. But environmentalists say it’s “a sweetheart deal” because the Forest Service valued the land it was trading to PolyMet as timberland, rather than mining land, which is typically valued more highly.
Under the Federal Land Policy Management Act, federal land exchanges must be of equal value, and that’s the issue that attorney Paula Maccabee, of Water Legacy, had hoped to examine in her lawsuit challenging the exchange. Maccabee’s lawsuit would not have prevented the land swap, but it might have required PolyMet to put up significantly more land in exchange.
Maccabee said she sees Smith’s measure as representative of the almost overwhelming power of big money in Washington today. “I just see Citizens United behind a lot of this,” said Maccabee, referring to the 2010 Supreme Court decision that cleared the way to unlimited political spending by corporations and the wealthy. “There seems to have been a change in our politics in favor of people with very large amounts of money. Apparently, she got advice from somebody that this is what she needed to do.”
According to Maccabee, the courts are often the only part of government where an average person, or small organization, can be heard on a more or less equal footing with the politically powerful. “The judicial branch is there to protect those who are politically weak,” said Maccabee. “Otherwise, the powerful can prevent the average person from ever being heard.”
While members of Congress typically tout their legislative proposals, Smith has been quiet about her latest move. Her office provided no press announcement of her amendment and her Senate website has no information about the measure.
When asked for comment, Jen Gates, a spokesperson for the senator, suggested that it’s time to set aside concerns about the project. “After seven years of thorough evaluation and 17 years after PolyMet purchased the mineral rights, the Obama administration approved the land exchange in January 2017,” said Gates in a statement to the Timberjay. “The amendment legislatively codifies the Obama administration’s decision but does not in any way interfere with the environmental permitting process for the mine itself.”
Maccabee said she sees it differently. “The Obama administration never really supported this. They knuckled under to PolyMet’s threats.”
Painter said the measure ultimately limits the rights of Minnesotans. “The court system is often the only place average Minnesotans can have their voices heard over the din of corporate greed,” he said. “It’s appalling that Sen. Smith would use her legislative power to silence those voices.”
Smith’s amendment did appear to please investors, however, who pushed PolyMet’s stock price as high as $1.14 per share in early trading on Tuesday. The stock had been trading in the mid-70¢ range just ahead of last week’s announcement. The stock price had dipped to 91¢ by the end of the day on Tuesday.
PolyMet’s Richardson was hopeful, noting that the House had already approved the measure last December. “Congressional action would bring closure to the land exchange process.” he said.