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More lawsuits filed against Twin Metals mineral leases

Marshall Helmberger
Posted 6/27/18

WASHINGTON—The lawsuits against the Trump administration’s restoration of mineral leases for the Twin Metals project piled up this week as four more organizations filed two separate lawsuits …

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More lawsuits filed against Twin Metals mineral leases

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WASHINGTON—The lawsuits against the Trump administration’s restoration of mineral leases for the Twin Metals project piled up this week as four more organizations filed two separate lawsuits challenging the legitimacy of the decision.

Friends of the Boundary Waters, a long- standing environmental advocacy group in Minnesota, filed its lawsuit in federal district court in Washington, D.C. on Monday. Also on Monday, the Wilderness Society, Izaak Walton League, and the Center for Biological Diversity filed a similar lawsuit in the same federal court.

The latest lawsuits come on the heels of a legal challenge filed late last week by Northeastern Minnesotans for Wilderness and nine Minnesota businesses. The lawsuits make similar arguments and are likely to be consolidated by the court in the weeks to come.

Twin Metals spokesperson Bob McFarlin said the company is currently reviewing the latest legal filings. “Twin Metals firmly believes there is no basis for a court to disturb the reinstatement of the leases, and will take appropriate steps to defend the government’s actions,” McFarlin stated.

At issue is the May 2 decision by Interior Secretary Ryan Zinke to renew two federal mineral leases located along the South Kawishiwi River. Both the U.S. Forest Service and the Bureau of Land Management under President Obama had denied renewal of the leases in December 2016, a decision that had all but halted work on the Twin Metals mine proposal being advanced by Chilean mining giant Antofagasta.

But the Interior Department’s new legal counsel, Daniel Jorjani, issued an opinion late last year that argued that the Obama Interior Department had committed “legal error” in determining that the department had the authority to deny renewal of the leases. Jorjani argued in what’s known as an M-Opinion, that the federal government had no choice but to renew the claims given the language in the original leases, first issued to the International Nickel Company in 1966. Those leases allowed for three ten-year renewals, but add: “unless at the end of the primary term of this lease, the Lessee shall not have begun production.”

Secretary Zinke cited Jorjani’s opinion in reinstating the two mineral leases.

Yet the groups now challenging Zinke’s decision say it was Jorjani who committed legal error. “The Jorjani M-Opinion incorrectly considers extrinsic evidence in violation of fundamental tenets of contract interpretation,” argues the Friends’ in their federal complaint. “Further, the Jorjani M-Opinion relies on a tortured reading of the 1966 Leases that is inconsistent with the contractual language of those Leases. Even if the 1966 Leases are to be considered, Twin Metals would not have a right to a third successive renewal unless it started production during the initial 20-year term, from 1966-1986, which did not occur.”

The lawsuits also contend that the Interior Department lacks authorization to reinstate expired mineral leases that were rejected for renewal nearly a year and a half earlier. The plaintiffs contend that the decision to deny renewal of the leases was a final one and that old leases cannot simply be resurrected after previous administrations have cancelled them.

“The federal government is flip-flopping in a way that it does not have power to do,” said Chris Knopf, Executive Director of the Friends. “It was an arbitrary and unlawful decision made in favor of a Chilean mining company that wants to conduct a type of mining that has a history of causing environmental damage. We will not let them come to Minnesota and destroy the Boundary Waters and harm the economy that has developed around this national treasure.”

The Interior Department could have requested that Chilean mining giant Antofagasta, which owns the Twin Metals project, re-apply for new mineral leases, but such an application would be subject to environmental review, public comment, and could be opposed by the U.S. Forest Service. The Forest Service issued detailed findings in late 2016, citing potential risks the proposed mine poses to the nearby Boundary Waters Canoe Area Wilderness, which accompanied its decision to reject renewal of the mineral leases. Based on the Forest Service’s decision, the federal Bureau of Land Management, which oversees the federal minerals program, terminated the Twin Metals leases in January 2017.

By reinstating the original 1966 leases, Jorjani, who had worked for the Charles Koch Foundation prior to joining the Trump Interior Department, avoided the need for environmental review or Forest Service concurrence.

The plaintiffs in the latest cases joined NMW and area businesses in asking the court to declare the Twin Metals’ leases as null and void and to prohibit Antofagasta from conducting further exploratory drilling on the lands in question.

The lawsuits come on the heels of comments made by President Donald Trump last week during a visit to Duluth. Speaking at a rally for supporters, Trump vowed to reopen about 234,000 acres of the Superior National Forest for mining. Those lands were part of a proposed mineral withdrawal that the Forest Service is purportedly in the process of studying, although the results of the study of the proposed impacts of the withdrawal aren’t expected until the end of the year. But Trump indicated he’d already made the decision to deny the withdrawal, accusing his predecessor of putting Minnesota’s natural resources under “lock and key.” As for lifting the withdrawal proposal, Trump stated: “It is going to happen, I will tell you.”

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