Federal Judge Backs Mineral Leases in Minnesota’s Boundary Waters

(CN) – Advocates against mining near Minnesota’s Boundary Waters were hit with another setback Tuesday when a Washington, D.C., judge ruled that the Department of the Interior’s return of mineral leases to Chilean-owned mining company Twin Metals was legal.

“When do federal agencies get a mulligan?” U.S. District Judge Trevor McFadden, a Trump appointee, asked in the opening of his opinion granting summary judgment to the Interior Department. 

Oyster Lake in Minnesota’s Boundary Waters Canoe Area Wilderness. (A. Strakey via Flickr)

The leases are a crucial step in Twin Metals’ plan to establish a copper-nickel mine in the Superior National Forest, which borders on the popular Boundary Waters Canoe Area Wilderness. Twin Metals and its predecessor International Nickel Company held the leases from 1966 to 2016, when the Bureau of Land Management, a division of the Department of the Interior, denied a 10-year renewal because of concerns about acid mine drainage.

The bureau reversed course in 2018, when Acting Solicitor of the Interior Daniel Jorjani issued an opinion saying that his predecessor had misinterpreted the lease and misapplied contract law. The bureau reinstated the leases five months later.

That sparked a complaint under the Administrative Procedures Act from environmental groups and businesses relying on Boundary Waters tourism, which draws over 150,000 visitors to the area each year, according to state tourism agency Explore Minnesota. 

Morrison Foerster attorney Alex Ward, representing the plaintiffs, argued in November that the bureau’s late discovery of legal error was in fact an attempt to write policy.

“Generally, agencies are presumed to have properly discharged their official duties, unless there is ‘clear evidence to the contrary,’” he wrote. “Not only is there no ‘clear evidence’ of pretext, [the plaintiffs have] presented no evidence at all.” 

Ward also found that the bureau’s initial decision to deny the permits was reviewable, and fell within the agency’s inherent power to change its decisions within a reasonable time frame. The “ministerial error doctrine” the Boundary Waters advocates relied upon to argue that the bureau overstepped its authority would only apply if a statute prevented the bureau from re-evaluating the decision in the first place.

McFadden also pointed out that the suggestion that the Interior Department could simply issue new leases would place too heavy of a burden on the mining company. 

“Twin Metals spent ten years negotiating its original 1966 lease agreement with Interior. And it has ‘spent decades’ and invested ‘more than $400 million’ in developing the property,” he wrote. “Even if Interior were to issue new leases to Twin Metals, the leases would not contain the same terms and could not fully compensate for Interior’s error.”

McFadden granted summary judgment to the Interior Department, closing the case with an option to appeal.

“We’re very gratified that this decision … validates our contention that the decision to cancel leases held in good standing for more than 50 years was arbitrary and wrong,” Twin Metals CEO Kelly Osborne said. “Companies must be able to trust the regulatory process in order to risk the enormous capital required to extract metals such as copper, nickel, cobalt and platinum group metals that are vital to creation of the green economy our world so desperately needs.”

The Twin Metals project is one of two proposed mines in northern Minnesota. The area has a history of taconite mining, but the last underground mine operating in the region closed in 1967. 

The Twin Metals and PolyMet mines, both of which would take advantage of deposits of copper, nickel and other valuable metals on the edge of the Duluth Complex, have promised to revive the region’s mining economy. Twin Metals alone has promised 765 mining jobs and some 1,400 spin-off jobs from its project. Both have sparked concerns among environmentalists and locals who seek to preserve the area’s reputation as a relatively untouched wilderness.

With another step out of the way for Twin Metals, the company anticipates that it will complete Minnesota’s regulatory process within five to seven years and begin mining. That may be optimistic: PolyMet obtained the last of its state permits in October of 2018 after submitting its proposal in 2005.

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