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Finding: Trump Interior erred repeatedly over Twin Metals leases

Marshall Helmberger
Posted 2/2/22

REGIONAL– The Trump administration violated standard process, federal regulations, and the law when it renewed two mineral leases critical to the proposed Twin Metals copper-nickel mine.That …

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Finding: Trump Interior erred repeatedly over Twin Metals leases

Posted

REGIONAL– The Trump administration violated standard process, federal regulations, and the law when it renewed two mineral leases critical to the proposed Twin Metals copper-nickel mine.
That was the determination of attorney Ann Marie Bledsoe Downes, the chief deputy solicitor at the U.S. Department of the Interior in a legal opinion issued Jan. 25. Her opinion, known as a Memorandum-decision, or an “M-opinion,” was released by the Department of the Interior along with the department’s decision to cancel the Twin Metals leases.
The 16-page legal analysis cites numerous errors by Trump administration officials and officially reverses a legal opinion issued in 2017 by Daniel Jorjani, who had been appointed principal solicitor at the Interior Department by then-President Trump.
The Twin Metals leases, originally issued to the International Nickel Co, or INCO, in 1966, have been the subject of a number of legal opinions by attorneys over the past half-century who served presidents of both parties. With the exception of Jorjani, however, Interior Department lawyers had always found that renewal of the leases was discretionary and that the U.S. Forest Service maintained its right to either consent or reject lease renewal under federal law.
When the Forest Service announced its opposition to renewal of the Twin Metals leases in 2016, in the final weeks of the Obama administration, the Bureau of Land Management canceled the leases, effectively ending hopes for the Twin Metals project.
President Trump made no secret of his political desire to reverse that decision and renew the mineral leases. After narrowly losing Minnesota in 2016, Trump and his campaign hoped a heated fight over a mining project would energize his supporters and put Minnesota into his win column in his re-election bid.
It didn’t work out that way. Trump lost Minnesota by nearly 250,000 votes in 2020, or a seven percent margin, despite attracting somewhat more support in parts of northeastern Minnesota than he had in 2016. At the same time, it now appears that Trump officials cut corners and ignored longstanding statutes in their rush to renew the leases for Twin Metals, undercutting their own efforts.
According to the latest M-opinion, Trump officials in the Interior Department violated BLM’s own regulations on mineral leasing, failed to follow National Environmental Policy Act (NEPA) requirements in its abbreviated environmental analysis, and ignored federal law when it renewed the leases over the continuing objection of the Forest Service.
Despite Trump’s appointments at the Department of Agriculture, which oversees the Forest Service, that agency never rescinded its veto of the leases over concerns about the mine’s potential impact to the Boundary Waters Canoe Area. While the Twin Metals leases had been renewed twice before by previous successors of INCO, the BLM had sought and received Forest Service consent on each of those occasions. Bledsoe Downs cites statutes that establish “the principle that the BLM cannot authorize any mineral development without Forest Service consent.”
The latest opinion cites similar determinations from both the Interior Department’s Board of Land Appeals (IBLA) as well as court rulings on the subject, such as Grynberg v. Kempthorne, in which a federal district court in Colorado determined that cancellation of an oil and gas lease by the IBLA was proper when it determined that it had been issued without first obtaining the consent of the Forest Service. “Here, the issuance of Twin Metals’ lease renewals similarly did not comply with the relevant statutes for mineral leasing in Minnesota,” wrote Bledsoe Downes. “It was improper for the Assistant Secretary to ignore the Forest Service’s 2016 non-consent determination and to fail to provide the Forest Service with an opportunity to consent or withhold consent for renewal of the leases before issuing them in 2019.”
Meanwhile, the latest opinion faults the prior administration’s handling of the NEPA process for the lease renewal, finding that department officials had failed to include a no-action alternative in their analysis, which is standard practice under NEPA when the government is considering a discretionary action.
At the same time, the opinion cites the irregular nature of the renewed lease provided to Twin Metals, which deviated significantly from the terms of standard leases normally issued by the BLM.
“In light of these considerations, I advise the Secretary that Twin Metals leases MNES-01352 and MNES-01353 were improperly renewed and are subject to cancellation under [federal law] 43 C.F.R 3514.30,” concluded Bledsoe Downes.
Fruit of an
erroneous opinion
The controversial Jorjani opinion, issued in 2017, provided a kind of legal fig leaf for the Trump administration actions. That opinion departed from every previous federal legal analysis on the subject by concluding that Twin Metals had an absolute right to at least three renewals of the leases. Bledsoe Downs cited BLM regulations which “substantively prohibit a non-discretionary right of renewal for the leasing of solid minerals other than coal and oil shale. Those regulations provide that hardrock mineral lease renewals are decisions within the agency’s discretion to grant or deny.”
By claiming renewal of the Twin Metals leases was contractually mandatory, Jorjani’s opinion allowed the Trump Interior Department to effectively circumvent the rights of the Forest Service and the obligations of the NEPA process. While seemingly useful in achieving the Trump administration’s objectives, the Jorjani opinion appears to run counter to the terms of the original lease and the statements made by the Department of the Interior when the leases were issued in 1966. Those terms, and a 1966 press release from the Interior Department, had specified that any right of renewal of the original 20-year lease was conditional on the start of mining operations within the first 20 years. Neither INCO nor its successors ever met that requirement.
Reinstatement of
leases not addressed
The latest M-opinion largely avoids the related issue of the Trump administration’s reinstatement of the mineral leases following their cancellation in the waning days of the Obama administration. That decision— which only reinstated leases that were by that time expired— has already been the subject of a court challenge, in which Judge Trevor McFadden, a Trump appointee, sided with the Department of the Interior in ruling that the reinstatement could go forward. In the latest M-opinion, Bledsoe Downes notes that the issues addressed in that case were substantially different from the issues surrounding the renewal of the expired mineral leases.
Lawsuits challenging both the reinstatement of the expired permits and the issuance of new ones are now likely headed for dismissal as moot. The Biden administration has already filed motions in federal court to dismiss the claims, citing the most recent decision to cancel the leases.
Status of EIS
The cancellation of the leases would seem to leave the ongoing environmental review of Twin Metals proposed mine plan in limbo. The Minnesota Department of Natural Resources, which had begun its own environmental review of the plan, issued a statement noting that: “The federal action raises significant questions about the feasibility of Twin Metals’ project as proposed. The DNR will need to carefully and comprehensively consider what this development means for the state.”
The U.S. Forest Service did not clarify a question on the status of its own environmental review of the Twin Metals proposal.