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Twin Metals leases under review

Lawsuits on hold while Biden officials consider reversing Trump reinstatement

Marshall Helmberger
Posted 3/24/21

REGIONAL—A lawsuit challenging a Trump administration decision to renew two federal mineral leases critical to the proposed Twin Metals copper-nickel mine, near Ely, have been stayed while the …

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Twin Metals leases under review

Lawsuits on hold while Biden officials consider reversing Trump reinstatement

Posted

REGIONAL—A lawsuit challenging a Trump administration decision to renew two federal mineral leases critical to the proposed Twin Metals copper-nickel mine, near Ely, have been stayed while the Biden administration reviews the case.
The administration requested the stay “to allow senior officials at the Department of the Interior and Department of Agriculture to review the government’s position in this matter, the earlier cases challenging reinstatement of mineral leases MNES-01352 and MNES-01353 in the District and Circuit Courts, and the historical files for [the] leases.”
Ely area businesses and the Wilderness Society, which had challenged the Trump administration’s decision to renew the two mineral leases, did not oppose the motion for a stay. The Justice Department requested the stay just ahead of a court-imposed deadline to file a brief defending the Trump administration’s position in the case. The Justice Department will now have until June 21 to file a defense motion or reverse the renewal decision.
The Twin Metals proposal would seem to be in jeopardy given Biden’s picks to head both the Department of Agriculture and the Department of the Interior. Newly confirmed Agriculture Secretary Tom Vilsack has been an outspoken advocate for sustainable economic alternatives to copper-nickel mining in and around the Boundary Waters Canoe Area Wilderness. “A project like the proposed Antofagasta Twin Metals mine, which threatens the fundamental character and integrity of the Boundary Waters, puts all that at risk,” Vilsack wrote in a 2018 op-ed. As Secretary of Agriculture, Vilsack oversees the U.S. Forest Service, which has discretion over whether to allow the Twin Metals project to move forward. Vilsack previously served in the same position in the Obama administration and oversaw the Forest Service’s decision to veto renewal of the Twin Metals leases.
Newly confirmed Interior Secretary Debra Haaland, a former congresswoman from New Mexico, co-sponsored legislation with Minnesota’s Fourth District Rep. Betty McCollum that would have extended a permanent moratorium on copper-nickel mining within the watershed of the BWCAW.
The renewal case stems from an earlier Trump administration decision to reinstate the two leases in question after the Obama administration had terminated them in Obama’s final days in office. But a Trump administration lawyer in the Department of the Interior, Daniel Jorjani, issued a legal opinion claiming the Obama administration had committed legal error in concluding that the leaseholders did not have a legal right to a third renewal. The Jorjani opinion allowed the Trump administration to reinstate the leases and it later renewed them for a third time, with a provision that could give Twin Metals and its parent company Antofagasta, perpetual rights to the minerals in question.
A coalition of Ely area businesses that serve wilderness visitors sued over both the reinstatement and renewal, arguing that they would be negatively impacted by a copper-nickel mine located adjacent to the Kawishiwi River, a major wilderness watershed, upstream of the BWCAW.
The reinstatement lawsuit is on hold pending a decision on a motion by plaintiffs to reopen the administrative record, to add emails obtained through a Freedom of Information Act request that point to political interference over the issue by Eighth District Congressman Pete Stauber, among others.
The reinstatement of the leases is potentially on thin ice, legally. While the leases in question did call for up to three renewals, previous legal opinions dating back to the Reagan administration had determined that those rights were contingent on the start of actual mineral production within the first 20-year lease term. The Bureau of Land Management first issued the mineral leases in question to the International Nickel Co., or INCO, back in 1966. The leases have gone through a number of changes of ownership, and renewals in 1986 and 2004, but no mining has taken place as a result of the leases after now more than half a century.
Becky Rom, of Ely, who chairs the national Campaign to Save the Boundary Waters, a coalition of groups opposed to the Twin Metals project, said she’s been told that the administration is “taking a look at the legal underpinnings” of the Jorjani opinion, which appears to be an outlier based on the opinions of previous Interior Department lawyers under both Republican and Democratic administrations. “The news is that they’ve started looking at this issue,” said Rom. “The bigger news will be whatever they decide.”
For now, Twin Metals officials are expressing confidence that the Trump administration decisions would ultimately be vindicated. “One year ago, the federal district court in Washington, D.C., upheld the validity of Twin Metals Minnesota’s federal mineral leases in northeastern Minnesota,” noted Kathy Graul, Twin Metals’ public relations manager. “That decision is on appeal, and we are confident it will be upheld. We are aware of the Department of Justice’s stay motion on related litigation, and such actions are not uncommon when a new administration transitions into the White House. Twin Metals looks forward to answering any questions the government may have regarding its review of the litigation, and the company will continue to work with federal and state agencies as the project advances through the multi-year scoping, environmental review and permitting processes.”
 

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