Reinstated Nickel Mine Lease Sends Minnesotans to DC

WASHINGTON (CN) — A pristine wilderness where Minnesotans go to fish, hunt and snowshoe is at risk of contamination from acid mine drainage, environmentalists and business owners warned a federal judge in Washington on Friday. 

Image credit: Twin Metals via Courthouse News Service

The U.S. Interior Department opened the door to the problem last year by reinstating mineral leases for Twin Metals, which aims to build a copper-nickel mine on protected public land in the Superior National Forest of northern Minnesota. 

Multiple endangered species and the largest populations of gray wolves outside Alaska live in the Boundary Waters Canoe Area Wilderness, adjacent to the forest site where Twin Metals plans to drill and blast.

When Twin Metals first obtained the leases in 1966, they included a right of unlimited, successive 10-year renewals. Mineral production had yet to occur, however, the Bureau of Land Management rejected its renewal application during the last weeks of the Obama administration.

The Trump administration now considers that denial a legal error, but its reinstatement of the leases triggered a lawsuit last year from tourism businesses and environmentalists.

Arguing for these groups Friday, Morrison Foerster attorney Alex Ward said the government purporting a legal error more than 16 months after the leases expired “leads you essentially to an admission that this was a policy change.”

The judge hearing the case was appointed to the bench in 2017 by President Donald Trump.

“Not necessarily,” U.S. District Judge Trevor McFadden told Ward, adding that new presidential administrations bring “a lot of vacancies … and people just trying to find their way around the building.”

Piggybacking off this uncertainty, Justice Department attorney Tyler Alexander said Bureau of Land Management officials needed time to get up to speed.

“This was a complicated legal issue,” he argued. “There were complicating factors with the change of administrations.”

Twin Metals touts that the project will create thousands of jobs for mining and construction workers, but Ward urged Judge McFadden to hold the government accountable.

“It’s about making the government play by the rules,” he said.

Owned by Chilean mining giant Antofagasta PLC, Twin Metals has spent more than $450 million developing the project.

Daniel Volchok, an attorney for Twin Metals with the firm WilmerHale, told the court Friday that, just a day earlier, the company submitted an enormous report open to public comment that outlines its plans to comply with environmental laws. 

“Before any mining begins there will be comprehensive environmental review,” Volchok said.

The challengers say drilling will go 24 hours a day, seven days a week, posing a threat to their members’ livelihoods and enjoyment of the wilderness.  

Indeed Twin Metals took action once its lease was reinstated to close off parts of the forest with signs reading “Access Restricted TMM & TMM Contractors Only,” according to the complaint.

Volchok argued Friday, however, that they failed to claim third-party rights, as required for the business owners and environmental groups to establish standing. Though the plaintiffs present their suit as an Administrative Procedure Act case, Volchok said it truly amounts to a contract case. 

“They’re arguing for pages on pages about contract interpretation,” Volchok argued, referring to briefs in the case record.

McFadden admitted that he did not excel in contract courses when in law school. “So this is all, it’s a little frightening,” the judge said with a smile. 

Ward warned the judge to tread carefully in the case, arguing that to rule in favor of the Trump administration would allow the government to “flip-flop” on final agency decision. 

“It is asking you to make law,” the attorney said.

McFadden replied, “district judges love to do that,” setting off laughter in the courtroom.

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